This is an appeal from the judgment of the County Court of Harris County finding appellant guilty of using violent means to induce a confession; penalty assessed at a fine of $200.00 and confinement in the county jail for 30 days.
Several issues are brought to this court, one of which involves *Page 623 the jurisdiction of the County Court over the offense alleged. The determination of that issue turns upon the question of whether or not a policeman of a city is a public official and upon the further question as to whether or not the conduct alleged was "official misconduct."
It is held by the authorities in Texas that a city has the right to pass ordinances creating the office of policeman and that when they are so created they become officers of the State. It has also been held, not only in this State but in other jurisdictions, that a policeman is a public official. See Whitfield v. Paris, 84 Tex. 431; Givens v. Paris, 24 S.W. 974; Ex parte Preston, 72 Tex.Crim. R.. In the case last mentioned this court quoted from 28 Cyc. 487, as follows: "A policeman of a city is a public officer holding his office as a trust from the state, and not as a matter of contract between himself and the city."
The next question for consideration is whether or not the acts testified to by the prosecuting witness and relied upon by the State are such as to constitute "official misconduct." The prosecution is based upon Art. 1157, Penal Code, 1925, which reads as follows:
"Any * * * * * policeman, or any other officer having under arrest or in his custody any person as a prisoner who shall torture, torment or punish such person by inflicting upon him any physical or mental pain for the purpose of making or attempting to make such person confess to any knowledge of the commission of any offense against the laws of this State, shall be fined not less than one dollar nor more than one thousand dollars or be imprisoned in jail not to exceed one year, or both such fine and imprisonment," etc.
The prosecution was first instituted in the District Court but was by order removed to the County Court where the trial was had. The prosecuting witness, Robert Lyons, testified that he had been taken in custody by the police of the City of Houston and carried to the city jail. At the time of the incidents upon which the prosecution is based, M. M. Simpson, the appellant, was occupying the position of Senior Captain of Detectives and occupied an office on the third floor of the police station. Lyons was brought to the appellant's office and there, according to the State's testimony, he was beaten and badly bruised in an effort to force him to confess to the commission of a robbery which had taken place at a certain rooming house in the city. The appellant was acting within the scope of his *Page 624 official duties in receiving from Lyons such confession as he desired to make. However, if he used force and abuse as testified to by Lyons to compel him to do so, there would be no difficulty in recognizing it as "official misconduct." That being true, even though the case be a misdemeanor, the jurisdiction to try it is lodged in the District Court under Art. 5, Sec. 8, of the Constitution of Texas. This being the holding of the court, it follows that we are presently without jurisdiction to consider the case or any other question involved in it other than to reverse the case and direct that it be transferred to the District Court of Harris County for further orders, which is accordingly done.
ON MOTION FOR REHEARING.