Hubbard v. Lord

• Decision Date: 04 May 1883
• Docket Number: Case No. 4740.
• Court: Texas Supreme Court
• Parties: R. W. HUBBARD v. GEORGE LORD.

59 Tex. 384

R. W. HUBBARD

v.GEORGE LORD.

Case No. 4740.

Supreme Court of Texas.

May 4, 1883.

APPEAL from Wilson. Tried below before the Hon. Everett Lewis.

Appellant, who resided in Wilson county, sued in Wilson county the appellee, who resided in De Witt county, for a malicious prosecution, claiming $10,000 damages, and alleging in substance that the defendant made three complaints in writing before the county attorney of De Witt county, charging plaintiff and others with theft of cattle in Gonzales county, and causing a warrant to be issued by a justice of the peace of De Witt, by virtue of which plaintiff was arrested at his home in Wilson county, and placed under bond to appear before the county judge of Gonzales county. Exceptions to the jurisdiction of the court were sustained.

A. E. Watkins and Lawhorn & Browne, for appellant.

No briefs for appellee on file.

WILLIE, CHIEF JUSTICE.

The only question in this case arises upon the ruling below sustaining the appellee's special exception to the jurisdiction of the court. It appeared from the face of the petition that Lord was a citizen of De Witt county; that the prosecution against appellant for theft was instituted there, but that the arrest under the charge occurred in Wilson county, where this suit was commenced.

It is urged that the case comes within the eighth exception to art. 1198 of the Revised Statutes. That exception provides that when the foundation of the suit is some crime or offense or trespass, for which a civil action in damages may lie, suit may be brought in the county where such crime, offense or trespass was committed.

By art. 273 of our Criminal Code, it is made an offense to institute a criminal prosecution against any person for the purpose of vexing, harassing or injuring him. The offense consists in instituting the prosecution, or causing it to be instituted. In this case, the criminal prosecution was commenced or instituted by making the affidavits before the district attorney, and having the process issued by a justice of the peace, all of which was done in De Witt county. The arrest in Wilson county was not the institution of the prosecution, and hence the offense was not committed by making it, but was complete when the preliminary steps, including the issuance of the warrant, had been taken.

By art. 225 of the Code of Criminal Procedure, it is provided that in all cases except those enumerated in previous articles of chapter 2, the proper county for the prosecution of an offense is that in which it was committed. Malicious prosecution is not mentioned in any of those articles as one of the offenses excepted from this general rule. The proceedings constituting the offense having been instituted in De Witt county, the county of Wilson could not derive jurisdiction by reason of the subsequent arrest of appellant in that county, unless that act in itself was a trespass for which a civil action in damages would lie.

The distinction between an arrest by an officer under a warrant legally issued and coming to his hands in a lawful manner, and one made without warrant or under process from a court having no authority to issue it, is clearly drawn. Under the former he can commit no trespass by executing it according to its command. If he arrests the person he is ordered by it to arrest, he is fully protected, and no action for trespass lies against him for this discharge of his duty. Blalock v. Randall, 76 Ill., 224; Rhodes v. King, 52 Ala., 272; West v. Smallwood, 3 M. & W., 418; Von Latham v. Libby, 38 Barb., 339. If, on the contrary, he seizes the person of another without warrant, or with one palpably illegal, or issued without the authority of law, he commits a trespass for which he and his abettors are...