The offense is offering a bribe to an officer to permit a prisoner in his custody to escape; the punishment, two years.
Omitting the formal parts, the indictment reads as follows:
“* * * did then and there unlawfully, willfully, and corruptly offer to bribe Don Smith, who was then and there a legally qualified City Police Officer of the City of Amarillo, of said county, to permit a certain prisoner, then in the lawful custody of the said Don Smith, as police officer aforesaid; to escape; in this, the said Don Smith, as police officer aforesaid, did then and there have in lawful custody one Louise McBride, a prisoner; *510and the said Thomas Dalton McCrady did then and there unlawfully, willfully and corruptly offer to give the said Don Smith the sum of One Hundred Dollars ($100.00) in money to permit said Louise McBride, prisoner as aforesaid, to escape from said custody * * *
The state’s evidence reveals that Louise McBride was arrested on Thursday night at 10:35 P.M. for the offense of “vagrancy by prostitution” and was placed in the Amarillo city jail. At approximately 5:30 P.M. on Friday, the appellant offered Officer Smith, the booking officer at the jail, one hundred dollars to release Louise.
Appellant testified and denied that he made any such offer, but his principal ground for reversal is that, even if he made the offer, he violated no law because Louise was not in lawful custody at the time.
As shown above, the indictment alleged that Louise was in lawful custody and the court in his charge told the jury that in order to convict they must find that Louise was in laioful custody.
The state failed to prove a city ordinance authorizing the arrest of Louise without a warrant, and, so far as this record is concerned, the officers were without such authority, and the arrest was unlawful.
It was affirmatively established that Louise was confined in jail for approximately 17 hours after her arrest, 8 hours of which were during the normal working day of a non-holiday Friday, before the offer was made, and yet she was not carried before a magistrate in compliance with the terms of Article 217, V.A.C.C.P., which provides:
“In each case enumerated in this chapter, the person making the arrest shall immediately take the person arrested before the magistrate who may have ordered the arrest, or before the nearest magistrate where the arrest was made without an order.”
The Supreme Court of this state, in the landmark decision in Heath v. Boyd, 175 S.W. 2d 214, held that where Heath was arrested without a warrant and held by the officer who arrested him from one to three hours without taking him before a magistrate this constituted false imprisonment. Under this holding Louise was being falsely imprisoned.
*511In Moore v. State, 44 Texas Cr. Rep. 159, 69 S.W. 521 (1902), this court had before it a case, as in the case at bar, in which the accused was charged with attempting to bribe an officer. The court held that arrest was illegal and then said:
“It is made to appear that in order to bribe an officer, as contemplated by article 138, he must be in the discharge of a legal and official duty, and the custody of appellant, therefore, must have been a legal custody * *
The following year in Ex parte Richards, 44 Texas Cr. Rep. 561, 72 S.W. 838, the court said:
“* * * before the offer to bribe could be a violation of the statute, the arrest must be a legal one.”
This rule was stated in another way in Johnson v. State, 49 Texas Cr. Rep. 250, 92 S.W. 257. In that case, the appellant was complaining about proof concerning the arrest of the person whose release was sought to be secured by the bribe, and the court held that such details were admissible, and said:
“The statute provides that, before one can bribe an officer to release a prisoner, such officer must have the prisoner in legal custody * * *. Therefore it became necessary to introduce all of this testimony to show that officer had Malinda Lewis in legal custody.”
Some years later, in Hild v. State, 130 Texas Cr. Rep. 362, 94 S.W. 2d 733, this court held an indictment defective because it failed to allege that the officer “had legal custody” of the person whose release was sought by the bribe.
It is clear from the above that the rule is as follows: In a case where the accused is the person who gives or offers to give the bribe, it is incumbent upon the state to prove that the person whose release is sought by the bribe was in the lawful custody of the officer to whom the bribe was offered or given. This rule is well settled in this jurisdiction, and it becomes our duty to follow it.
The logic of the rule is that there is nothing legally wrong with an effort to secure the release of one held unlawfully, while, on the other hand, it is legally wrong for one holding another in his custody either lawfully or unlawfully to seek to extract *512money from the person so held or from another upon a promise to release him. If the person is lawfully held it is the duty of the officer to continue to hold him, while if he is unlawfully held it is the duty of the officer to release him without remuneration.
Accordingly, the judgment is reversed and the cause remanded.