HEHDERSOH, Judge.
Appellant was convicted of breaking into a jail for the purpose of effecting the escape of a prisoner therein confined, and his punishment assessed at imprisonment in the penitentiary for a term of two years; hence this appeal.
The motion to quash the indictment was not well taken. The case cited by counsel of Vaughan v. State, 9 Texas Criminal Appeals, 564, is not in point. That indictment was under a different statute,to wit, article 228, Penal Code 1895, which is for willfully aiding in the escape of a prisoner in the custody of an officer, by whom he is legally held in custody on an accusation of felony, etc. This prosecution is under article
227,
the construction of which will be considered hereafter. It is sufficient here to say that the indictment was sufficient. See Williams v. State,
24
Texas Crim. App., 17.
The court acted properly in admitting the testimony showing that the city of McKinney had incorporated under the general act; that is, that city had accepted the provisions of the general act of the Legislature relating to cities and towns and had incorporated in accordance with article 381 (formerly article 340) of the Revised Civil Statutes of 1895. This ordinance of incorporation was shown by its publication in a book of ordinances. Said ordinance showed the acceptance of said Act of March 15, 1875, in lieu of an existing charter of the said city of McKinney, by a unanimous vote of the board of aldermen, and is attested by the then secretary, John S. Heard, and the mayor, George W. Bentley; and it also shows to have been filed and recorded in the office of the clerk of the County Court of Collin County. See Rev. Stats. 1895, art. 381. The ordinance in question and all the other ordinances offered in evidence were shown from a book on the back of which was printed, “Revised Code of Ordinances of the City of McKinney, Printed and Published by the
Authority of the City Council, September, 1891;” and at the end thereof is the signature of approval by the mayor and attestation by the secretary of the city of McKinney. This was in accordance with article 558, Revised Statutes 1895, which reads as follows: “All ordinances of the city, where furnished and published by authority of the city council, shall be admitted and received in all courts and places without further proof.” This article seems to be in consonance with article 2304, Id., relating to the introduction in evidence of the printed statute books of this State; said article authorizing the use of such books, when they appear to be printed by authority of the State, to be used as evidence of the acts therein contained; and we hold that a book which shows that it was printed and published by authority of the city council of any city should be admitted and received in evidence as proof of all the acts and ordinances therein contained.
Appellant excepted to the court’s charge, and also asked a number of special instructions, which the court refused to give, and reserved his bill of exceptions thereto. These bills show that appellant insisted in the court below that it was incumbent on the State to show that he (appellant) was legally confined in said jail, and that if it failed in this respect the prosecution must fail. In other words, he insisted that the onus was on the State to show a legal arrest for some offense charged against the city ordinances of McKinney, and a legal detention on account of such offense.
We do not understand such to be a proper construction of article 227, Penal Code 1895, under which this prosecution was instituted. Said article is as follows: “If any person shall break into any jail for the purpose of effecting the rescue or escape of a prisoner therein confined, or for the purpose of aiding in the escape of any prisoner so confined, he shall be punished by imprisonment in the penitentiary for a term of not less than two nor more than six years.”
It will be noticed that nothing is said in this article making it an offense for a person to aid in the escape of a prisoner legally or lawfully confined in jail. In the succeeding article (article 228) the word “legally” is used, and it is only an offense when a person willfully aids in the escape of a prisoner in the custody of an officer by whom he is legally held, etc. The omission of the word “legally” in connection with the person confined in jail, when viewed in connection with said succeeding article and other articles of the Code, is an aider in the construction of said article, and shows that its omission by the Legislature was with a purpose. ' However, we need no extraneous support for a proper construction of this article. It is plain in its terms, and it authorizes a conviction of any person who shall break into jail for the purpose of effecting the rescue or escape of a prisoner therein confined; that is, of any prisoner therein confined, regardless of whether his arrest was legal or illegal. If he is a prisoner, and confined in jail, no person is authorized to break into jail for the purpose of rescuing him. The object of the statute appears to be the protection of the jails of the country against being
broken into in order to effect the escape or rescue of the persons therein confined, irrespective of the legality or illegality of their detention. No doubt, the lawmakers, having in mind that the courts were always open to those who were unlawfully imprisoned or confined in jail, and desiring to preserve the integrity of our jails for the safe-keeping of all prisoners, as well as to enforce respect for law, enacted this statute, making it a penal offense for breaking into any jail to effect the rescue or escape of a prisoner, the gravamen of the offense being the breaking into the jail. We accordingly hold that it was unnecessary on the part of the court to charge as he did with reference to the authority of the city marshal to make the arrest of Tom Finley, and his authority to detain him as a prisoner. If the proof showed that Burks was city marshal of McKinney, and that as such he arrested Tom Finley on account of a real or presumed offense against the city of McKinney, this was all that was necessary; and it is immaterial whether he arrested him with or without a writ, or with or without a complaint having previously been made against him, or if he arrested him for an assumed offense, which occurred in Ills presence, but failed to take him forthwith before the mayor or recorder, and make complaint against him. For an illegal arrest the marshal might be amenable in a civil or criminal action, but the illegality of the arrest would not justify or authorize any person or number of persons to interfere after the prisoner had been lodged in jail, and rescue such prisoner by an assault upon the jail and breaking into the same.
What we have said above with reference to the court’s charge disposes of the special charges asked by appellant. They did not present a ground of defense to the charge in this case. We further hold in this connection that, while the statute uses the general term "jail,” it has reference to and is intended as well to protect the calaboose or city jail as the county jail. The statute is broad in expression, and is intended to inhibit the breaking into any jail for the purpose of effecting the rescue or escape of a prisoner therein confined. See White’s Penal Code, art.
242,
and Welch v. State,
25
Texas Crim. App., 580.
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HEHDERSOH, Judge.
Appellant was convicted of breaking into a jail for the purpose of effecting the escape of a prisoner therein confined, and his punishment assessed at imprisonment in the penitentiary for a term of two years; hence this appeal.
The motion to quash the indictment was not well taken. The case cited by counsel of Vaughan v. State, 9 Texas Criminal Appeals, 564, is not in point. That indictment was under a different statute,to wit, article 228, Penal Code 1895, which is for willfully aiding in the escape of a prisoner in the custody of an officer, by whom he is legally held in custody on an accusation of felony, etc. This prosecution is under article
227,
the construction of which will be considered hereafter. It is sufficient here to say that the indictment was sufficient. See Williams v. State,
24
Texas Crim. App., 17.
The court acted properly in admitting the testimony showing that the city of McKinney had incorporated under the general act; that is, that city had accepted the provisions of the general act of the Legislature relating to cities and towns and had incorporated in accordance with article 381 (formerly article 340) of the Revised Civil Statutes of 1895. This ordinance of incorporation was shown by its publication in a book of ordinances. Said ordinance showed the acceptance of said Act of March 15, 1875, in lieu of an existing charter of the said city of McKinney, by a unanimous vote of the board of aldermen, and is attested by the then secretary, John S. Heard, and the mayor, George W. Bentley; and it also shows to have been filed and recorded in the office of the clerk of the County Court of Collin County. See Rev. Stats. 1895, art. 381. The ordinance in question and all the other ordinances offered in evidence were shown from a book on the back of which was printed, “Revised Code of Ordinances of the City of McKinney, Printed and Published by the
Authority of the City Council, September, 1891;” and at the end thereof is the signature of approval by the mayor and attestation by the secretary of the city of McKinney. This was in accordance with article 558, Revised Statutes 1895, which reads as follows: “All ordinances of the city, where furnished and published by authority of the city council, shall be admitted and received in all courts and places without further proof.” This article seems to be in consonance with article 2304, Id., relating to the introduction in evidence of the printed statute books of this State; said article authorizing the use of such books, when they appear to be printed by authority of the State, to be used as evidence of the acts therein contained; and we hold that a book which shows that it was printed and published by authority of the city council of any city should be admitted and received in evidence as proof of all the acts and ordinances therein contained.
Appellant excepted to the court’s charge, and also asked a number of special instructions, which the court refused to give, and reserved his bill of exceptions thereto. These bills show that appellant insisted in the court below that it was incumbent on the State to show that he (appellant) was legally confined in said jail, and that if it failed in this respect the prosecution must fail. In other words, he insisted that the onus was on the State to show a legal arrest for some offense charged against the city ordinances of McKinney, and a legal detention on account of such offense.
We do not understand such to be a proper construction of article 227, Penal Code 1895, under which this prosecution was instituted. Said article is as follows: “If any person shall break into any jail for the purpose of effecting the rescue or escape of a prisoner therein confined, or for the purpose of aiding in the escape of any prisoner so confined, he shall be punished by imprisonment in the penitentiary for a term of not less than two nor more than six years.”
It will be noticed that nothing is said in this article making it an offense for a person to aid in the escape of a prisoner legally or lawfully confined in jail. In the succeeding article (article 228) the word “legally” is used, and it is only an offense when a person willfully aids in the escape of a prisoner in the custody of an officer by whom he is legally held, etc. The omission of the word “legally” in connection with the person confined in jail, when viewed in connection with said succeeding article and other articles of the Code, is an aider in the construction of said article, and shows that its omission by the Legislature was with a purpose. ' However, we need no extraneous support for a proper construction of this article. It is plain in its terms, and it authorizes a conviction of any person who shall break into jail for the purpose of effecting the rescue or escape of a prisoner therein confined; that is, of any prisoner therein confined, regardless of whether his arrest was legal or illegal. If he is a prisoner, and confined in jail, no person is authorized to break into jail for the purpose of rescuing him. The object of the statute appears to be the protection of the jails of the country against being
broken into in order to effect the escape or rescue of the persons therein confined, irrespective of the legality or illegality of their detention. No doubt, the lawmakers, having in mind that the courts were always open to those who were unlawfully imprisoned or confined in jail, and desiring to preserve the integrity of our jails for the safe-keeping of all prisoners, as well as to enforce respect for law, enacted this statute, making it a penal offense for breaking into any jail to effect the rescue or escape of a prisoner, the gravamen of the offense being the breaking into the jail. We accordingly hold that it was unnecessary on the part of the court to charge as he did with reference to the authority of the city marshal to make the arrest of Tom Finley, and his authority to detain him as a prisoner. If the proof showed that Burks was city marshal of McKinney, and that as such he arrested Tom Finley on account of a real or presumed offense against the city of McKinney, this was all that was necessary; and it is immaterial whether he arrested him with or without a writ, or with or without a complaint having previously been made against him, or if he arrested him for an assumed offense, which occurred in Ills presence, but failed to take him forthwith before the mayor or recorder, and make complaint against him. For an illegal arrest the marshal might be amenable in a civil or criminal action, but the illegality of the arrest would not justify or authorize any person or number of persons to interfere after the prisoner had been lodged in jail, and rescue such prisoner by an assault upon the jail and breaking into the same.
What we have said above with reference to the court’s charge disposes of the special charges asked by appellant. They did not present a ground of defense to the charge in this case. We further hold in this connection that, while the statute uses the general term "jail,” it has reference to and is intended as well to protect the calaboose or city jail as the county jail. The statute is broad in expression, and is intended to inhibit the breaking into any jail for the purpose of effecting the rescue or escape of a prisoner therein confined. See White’s Penal Code, art.
242,
and Welch v. State,
25
Texas Crim. App., 580.
In our opinion, the charge of the court on principals was sufficiently comprehensive. After defining who were principals, it required the jury to believe that appellant was present at the time said jail was broken into, and acted as a principal in said breaking. There was nothing in the evidence that called for any special charge on the subject. There was no positive testimony indicating even that others were present when the jail was broken into and the prisoner rescued; yet defendant is the only person who was positively identified by any of the witnesses as being there and tampering with the lock of the jail; and the evidence forcibly suggested that, no matter who else was there at the time, he was present. The charge on circumstantial evidence was sufficient.
We have examined the record carefully, and in our view the evidence authorized the conviction. The judgment is accordingly affirmed.
Affirmed.