dissenting.
The majority hold that under the facts revealed by this record the arrest of the prostitute Louise McBride was unlawful. To this holding I respectfully dissent.
Appellant’s able counsel, in oral argument before this court, conceded that the arrest was lawful. The defense is predicated upon the contention, not that the arrest was unlawful, but that the girl’s detention became unlawful because when the bribe was offered she had not been taken before a magistrate and seventeen hours had elapsed since her arrest.
The girl was arrested in a hotel in Amarillo by City Detective Rex Cole. At the time of her arrest she was clothed only in her underwear, and had just received $10 from a man. The marked bills were taken from her purse.
Just prior to her arrest Detective Cole, who was in the bathroom, heard the following conversation:
John: “I have a buddy that would like to see you.”
The Girl: “No, wait until we get through.”
The girl was taken to the police station, charged with “Prostitution and investigation of health” and placed in jail on January 24, 1957, at 10:35 P.M.
Until a few days before she was arrested the girl was employed as a waitress in appellant’s cafe.
On January 25th appellant decided that he needed her back at the cafe; “needed her badly enough to go to the police station and try to pay a fine.”
When appellant came to the jail on January 25, Police Offi*513cer Donald R. Smith was on duty as booking officer. Appellant fixed the time as earlier in the afternoon, but Officer Smith testified that the time was 5:40 P.M.
Appellant, having failed to arrange for the girl’s release on bond, left $5.00 for her use, and while putting it in her purse, offered Officer Smith a one hundred dollar bill to release her.
Art. 474 C.A.P.C. provides, in part: “Whoever shall go into or near any public place, and shall * * * expose his or her person to another person of the age of sixteen (16) years or over, * * * shall be punished by a fine not exceeding Two Hundred Dollars ($200).”
Said Article 474 V.A.P.C. is found in Chapter 3 of Title 9 of the Penal Code. Title 9 relating to “Offenses against the public peace.”
Art. 212 C.C.P. authorizes the arrest without warrant when an offense classed as an “offense against the public peace” is committed in the presence of the person arresting.
Art. 999 V.C.S. provides in part that it shall be the duty of the marshal of a city to arrest, without warrant, all violators of the public peace and all who shall be guilty of any disorderly conduct or disturbance whatever.
Art. 998 V.C.S. provides that police officers shall have like powers, rights and authority as are * * * vested in city marshals.
Art. 609 V.A.P.C. makes it the duty of every police officer to make complaint under oath to any officer empowered to issue criminal warrants, of all vagrants within their knowledge in their city, and provides a fine for their failure to do so.
Cook v. State, 155 Texas Cr. Rep. 580, 238 S.W. 2d 200, and Bennett v. State, 136 Texas Cr. Rep. 192, 124 S.W. 2d 359, are deemed authority for holding that the arrest of the prostitute by the officer who witnessed her assignation was lawful. In the Bennett case “disorderly conduct” was held to mean “offensive to good morals and public decency.”
In McCrary v. State, 131 Texas Cr. Rep. 233, 97 S.W. 2d 236, the arrest of McCrary based upon an act of intercourse on his *514premises in a parked car was held to be unlawful. However, this court disclaimed “any intention of holding that conduct of the character in question would not, under some circumstances, constitute ‘an offense against the public peace’ authorizing an arrest without warrant.”
As to the detention of the prostitute following her lawful arrest, the writer is aware of no authority requiring or permitting the officer in charge of the jail to release the girl delivered to his custody because she was not taken before a magistrate. If she was not in lawful custody, just when, following her lawful arrest, did her custody become unlawful?
At what time did it become lawful for her employer to offer money to an officer as a bribe to secure her release?
Her arrest being lawful, the state was not required to prove that it continued to be lawful, such being the presumption until the contrary is shown. 18 Texas Jur. 23, Evidence Criminal Cases, Sec. 10.
There is nothing in this record to suggest that the prostitute did not waive the right to be taken before a magistrate sooner. She pleaded guilty a few days later and has made no complaint about any delay.
I respectfully dissent.