Montgomery v. State

• Decision Date: 24 February 1943
• Docket Number: No. 21906.,21906.
• Citation: 170 S.W.2d 750
• Parties: MONTGOMERY v. STATE.
• Court: Texas Court of Criminal Appeals

170 S.W.2d 750

MONTGOMERY v. STATE.

No. 21906.

Court of Criminal Appeals of Texas.

February 24, 1943.

Rehearing Denied May 5, 1943.

Commissioners' Decision.

Appeal from Criminal District Court, Tarrant County; Willis M. McGregor, Judge.

Rush Montgomery was convicted of false imprisonment, and he appeals.

Affirmed.

Mays & Mays, of Fort Worth, and John D. McComb, of Jacksboro, for appellant.

Spurgeon E. Bell, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

This is a conviction for false imprisonment, under the provisions of Art. 1169, P.C., the punishment assessed being a fine of $25.

The pertinent provisions of the indictment charged that appellant, in Tarrant County, "did Wilfully detain L. B. Newman, against his consent, and without authority of law, and did then and there commit an assault upon the person of the said L. B. Newman, and did then and there by said assault, and by actual violence to the person of the said L. B. Newman, and by threats, wilfully detain and restrain the said L. B. Newman, from removing from one place to another, as the said L. B. Newman might seem proper, * * *."

Upon the return of the indictment in this case in the District Court of Tarrant County, the same was transferred to County Court at Law No. 1 of said county, because, upon the face of the indictment, the offense charged was a misdemeanor. Upon call of the case for trial in the county court, appellant filed his motion, setting up that the offense charged involved official misconduct in that the offense was alleged to have been committed by him while acting in the official capacity of Constable of Jack County, Texas. He prayed that the case be transferred to the district court, which has exclusive jurisdiction over misdemeanors involving official misconduct. The motion was granted and the case was transferred to the district court, where it was tried.

The sole question presented by the appeal is the sufficiency of the evidence to support the conviction.

Newman, the injured party, resided in Plainview, Texas, where he was engaged in the automobile business. Early on the morning of July 25, 1940, he left his home, traveling by automobile, for Dallas, Texas, to keep a business appointment, and then to continue into the state of Arkansas, to see a friend who was sick. A friend by the name of Tolliver accompanied him. The route followed in making the trip carried them through Jack County. Upon leaving Jack County, they entered Wise County, and soon, after doing so, they heard a "siren" and a car approaching them. Newman stopped his car, whereupon appellant drove up and arrested him for speeding in Jack County. According to Newman's testimony, he told appellant of his business appointment and of his plan to visit the sick friend, and said to appellant: "I'd appreciate if you would let me go on. Give me a ticket and let me come back by and pay my fine on the way back." To this appellant would not agree, nor would he give Newman the notice to appear, as requested, but ordered them to return into Jack County and to "talk to the Judge". Appellant drove off in his car and directed Newman to follow him, which he did. Newman said that appellant drove so fast he was soon out of their sight, and that, believing that appellant had decided not to go further with the matter, he (Newman) pulled out by the side of the road and waited for a time, and, appellant not having returned, he decided to continue his journey, so he turned around and proceeded to do so. He drove through Wise County and into Tarrant County, when appellant overtook them near the town of Azle. Newman says that, as appellant got out of his car, he (appellant) pulled his pistol and, after cursing and abusing him, struck him with the pistol. Appellant then arrested Newman and carried him back into Jack County, and to the office of the justice of the peace, where Newman pleaded guilty to the offense of speeding and paid his fine.

Appellant, testifying as a witness in his own behalf, said that he did, as Constable of Precinct No. 2 of Jack County, arrest Newman in Wise County for speeding in Jack County; that he did order Newman to follow him back into Jack County and to the office of the justice of the peace; that, when he discovered that Newman had not followed him, he then filed, in the Justice Court of Precinct No. 2 of Jack County, a complaint charging Newman with violating the speed laws, and caused a warrant to arrest Newman to be issued by reason of the complaint; and that the arrest in Tarrant County was by the authority of such warrant of arrest. Appellant did not deny that, at the time of the first arrest, Newman asked that he be given the notice referred to, but admitted that, at that time, Newman told him that he had a business engagement he wanted to keep.

The subject of arrest and imprisonment of motorists for violations of the laws regulating the rate of speed at which automobiles may be operated over the public highways of this state has received special treatment by the legislature of this state.

In 1917, by Art. 803, P.C., the right was extended to all peace officers of this state to arrest without warrant for violations of such laws.

In 1923, the right of detention or imprisonment after arrest for such violations was expressly limited by the passage of Art. 792, P.C., which reads as follows: "In case of any person arrested for violation of the preceding articles relating to speed of vehicles, unless such person so arrested shall demand that he be taken forthwith before a court of competent jurisdiction for an immediate hearing, the arresting officer shall take the license number, name and make of the car, the name and address of the operator or driver thereof, and notify such operator or driver in writing to appear before a designated court of competent jurisdiction at a time and place to be specified in such written notice at least five days subsequent to the date thereof, and upon the promise in writing of such person to appear at such time and place, such officer shall forthwith release such person from custody. Any person wilfully violating such promise, regardless of the disposition of the charge upon which he was originally arrested, shall be fined not less than five nor more than two hundred dollars."

The maximum speed at which automobiles may be lawfully operated has, from time to time, been...