States of America, of the value of five dollars; also two tendollar bills of the denomination of ten dollars each, good and lawful money of the United States of America, of the value of ten dollars each; also one five-dollar bill of the denomination of five dollars, good and lawful money of the United States of America; also five silver dollars, good and lawful money of the United States of America, of the value of one dollar each," etc.

Counsel for appellant assigns for error the overruling of the motion for new trial based upon the insufficiency of the evidence to support the verdict, "because there was no evidence showing the kind or value of any of the money, as alleged in the indictment." All of the money is alleged to be the lawful money of the United States of America. It is contended that the proof fails to show that any of the money was the coin or bills of the "United States of America." Unquestionably this is a description of the coins and bills alleged to have been taken from Flippin, and hence a description of the particular offense charged against appellant. This being the case, while an unnecessary description, still it must be proved: Childers v. State, 16 Tex. App. 527; Gray v. State, 11 Id. 411; Cameron v. State, 9 Id. 336; 21 Id. 212.

The indictment alleges that the robbery was effected by an assault upon the body of Flippin, and also by force and violence to the said Flippin. There is no allegation that it was effected by "putting him in fear of life or bodily injury." Something is said in the indictment about fear of life or bodily injury, but there is no allegation that Flippin was put in fear of anything.

The indictment alleging that appellant took the money from the person of Flippin, and the proof showing that Flippin delivered the money to the appellant, counsel for appellant contends that there is a variance, and that the allegation that appellant took the money is not sustained by the proof. What are the facts bearing upon this point? Flippin says that appellant and Tom Price galloped to his house about sundown; that the first he saw of them to know them they had their pistols in his face, and said, "Hand up your checks, God damn you; dig up that pot that you have got buried. It is money that we want. Dig it up; we know that you have got it. Dig it up, God damn you; dig it up." Tom Price hit him on the side of the head with a pistol, and he gave Price his pocketbook, and he handed it to appellant.

Now, it is contended that this does not show a taking of the money, but a delivery of the money by Flippin through fear. A presents a cocked pistol toward B and demands his money. B, through fear of loss of life or great bodily injury, delivers to A his money. We are seriously told that A did not take B's money. The authorities and common sense say that he did take B's money. But counsel for appellant admits this would be a taking of the money but for article 723 of the Penal Code. This article has no reference whatever to the state of facts presented in this record. They are provided for in article 722. This is evident, because appellant and Price not only exhibited fire-arms, but used them in the commission of the offense, and in such a case the punishment may be for life, while the penalty for a violation of article 723 is not less than two nor more than five years.

As the case will have to be tried again, we will not give our views on the evidence. Because the state failed to prove that the money taken was United States money, as alleged, the judgment is reversed, and the case remanded for another trial.

ROBBERY - WHAT CONSTITUTES, AND THE ESSENTIAL ELEMENTS OF THE CRIME: See monographic note to State v. McCune, 70 Am. Dec. 178-191; note to State v. Calhoun, 2 Am. St. Rep. 256.

EX PARTE ROBERTSON.

[27 TEXAS APPEALS, 628.]

CONTEMPTS.-CIVIL CONTEMPTS are those quasi contempts which consist in failing to do something which the contemnor is ordered by the court to do for the advantage of another party to the proceeding.

CRIMINAL CONTEMPT IS AN ACT in disrespect of the court or of its process, or which obstructs the administration of justice, or tends to bring the court into disrepute.

CONTEMPT. JUSTICE OF PEACE MAY, under the Texas statute, fine an officer of the court for civil contempt in failing and refusing to execute its process, and may direct that such fine inure to the benefit of plaintiff in a sequestration proceeding, and in addition to such fine the court may order the officer committed to imprisonment until the fine is paid. CONTEMPT - FIne — ImprisonmENT FOR DEBT. — Fine imposed for civil contempt is not a debt within the meaning of the Texas constitution declaring that "no person shall ever be imprisoned for debt." CONTEMPTS-JUDGMENT

COMMITMENT.

Either the order or judgment finding a party guilty of civil contempt in disobeying the command of the court, and the order of commitment for such contempt, must recite that it was in defendant's power to perform the required act, or the commitment is void.

Carleton and Ruggles, for the relator.

W. L. Davidson, assistant attorney-general, for the state. WHITE, P. J. In this case an original writ of habeas corpus was granted, returnable to this court, on the petition of applicant alleging that he is illegally restrained of his liberty by the sheriff of Travis County acting by virtue of a certain writ of commitment issued by one J. A. Stuart, a justice of the peace in and for precinct No. 3 of Travis County, Texas, on the eighth day of April, 1889. Said order or writ of commitment being in words and figures as follows, to wit: —

"The State of Texas, to the sheriff of Travis County, greeting:

"Whereas, a judgment was rendered by me, J. A. Stuart, a justice of the peace in precinct No. 3 in the county of Travis, adjudging W. M. Robertson guilty of contempt of court, and a fine of $39.19 was entered against said Robertson, and judgment was by me rendered on the eighth day of April, A. D. 1889, that the state of Texas recover of the said defendant, W. M. Robertson, the sum of thirty-nine and 19-100 dollars, the fine assessed by the court, and all costs, amounting to the further sum of 60-100 dollars, these are therefore to commanċ you forthwith to take into custody and keep him, the aio W. M. Robertson, until the above fine and costs are pa i as provided by law.

"Herein fail not, but execute this warrant of commitment as the law directs, and fail not to return the same, with your indorsement thereon how it was executed.

"Given under my hand at office, this the eighth day of April, 1889. "J. A. STUART, Justice of the Peace,

"Precinct No. 3, Travis Co., Texas." It is claimed that said commitment is illegal and unauthorized by law, and exceeds the limits within which our statutes permit justices of the peace to fine in cases of contempt; the provision of the statute being that "they shall have power to punish any party guilty of a contempt of court by fine not to exceed twenty-five dollars, and by imprisonment not exceeding one day ": R. S., art. 1541.

If the fine imposed had been for a criminal contempt, this statute would have been applicable and the objection would have been fatal to the proceeding. Such, however, does not appear to have been the nature of the proceeding. It is shown that the applicant, Robertson, as constable, was fined by the

justice for failing and refusing to execute and return according to law a writ of sequestration issued in a certain civil cause pending in the justice's court, wherein one A. A. Cooper was plaintiff and one E. O. Sanford was defendant; that a motion was made against said constable by the plaintiff, Cooper, to have him fined for failing to execute said writ, upon the hearing of which the court adjudged him "guilty of a contempt of court for failing and refusing to execute and return said writ," and that he "be fined in the sum of thirty-nine dollars and nineteen cents, which said sum, when collected, shall inure to the benefit of A. A. Cooper, the plaintiff in said cause," and that the "said Robertson be committed to the county jail of Travis County, Texas, until said sum of thirtynine dollars and nineteen cents, together with all costs, is paid into this court." This was the judgment upon which the order and writ of commitment set forth above were issued. The justice based his action upon the provisions of article 4539 of the Revised Statutes, which declares that "if any constable shall fail or refuse to execute and return according to law any process, warrant, or precept to him lawfully directed and delivered, he shall be fined for a contempt, on motion of the party injured before the court from which such process, warrant, or precept issued, in any sum not less than ten dollars nor more than one hundred, with costs; which fine shall be for the benefit of the party injured; and said constable shall have ten days' notice of such motion." It seems that all the provisions and requirements of this statute were substantially, if not literally, observed in the proceedings which resulted in the justice's judgment, but it is insisted for applicant that, whilst it may be conceded that under this statute the justice had the authority to fine the constable, still the statute gives him no authority to commit him to jail as for a contempt until such fine and costs were paid.

Contempts are of two kinds, civil and criminal. "Civil contempts are those quasi contempts which consist in failing to do something which the contemnor is ordered by the cour to do for the benefit or advantage of another party to the pro. ceeding before the court; while criminal contempts are all those acts in disrespect of the court, or of its process, or which obstruct the administration of justice, or tend to bring the court into disrepute," etc.: Rapalje on Contempts, sec. 21. Contempts are also classified into direct and constructive contempts. Direct contempts are punishable summarily,

while constructive contempts require a different and less summary process. We have already seen that for what may be termed criminal or direct contempts, our statute above quoted (Rev. Stats., art. 1541) expressly provides that the party may be fined and imprisoned.

The question is, the statute (Rev. Stats., art. 4539) being silent as to the imprisonment for constructive or civil contempt, Can the court inflict imprisonment as part of the punishment for said character of contempt?

Our supreme court, in the case of Edrington v. Pridham, 65 Tex. 612, which was a case involving a question of civil or constructive contempt, say: "The proceeding for contempt can properly end only in a judgment of acquittal and discharge, or conviction and sentence. The punishment is by fine or imprisonment, or both: Rev. Stats., art. 1120; Rapalje on Contempts, sec. 128. The proceeding is generally regarded as a prosecution for an offense: Id., sec. 95; Williamson's Case, 26 Pa. St. 9. We know no authority for awarding in such proceeding, as a softer penalty, or as a means to the same end, a judgment in favor of the private prosecutor for a sum of money to be collected by execution. In some jurisdictions for contempt in civil cases depriving a litigant of some right, the court is authorized by statute to require the offender to restore the status quo, or pay the damages, but the order is enforced by commitment: Robins v. Frazier, 5 Heisk. 100; In re Day, 34 Wis. 638."

In his able work on contempts, Mr. Rapalje says: "An examination of the authorities, English and American, discloses five different kinds of imprisonment for civil and criminal contempts: 1. Imprisonment, in the first instance, by way of punishment for a criminal contempt; 2. Imprisonment for the non-payment of a fine imposed as such punishment; 3. Imprisonment for non-payment of a fine or penalty imposed as a compensation to the person injured by the violation of an order or decree in a civil action; 4. Imprisonment to compel compliance by a party or witness with the requirements of an order or decree of the court; and 5. Imprisonment for non-payment of costs": Sec. 130.

Again, the same learned author lays it down as a rule that "where a statute authorizes or prescribes the infliction of a fine as a punishment for contempt of court, it is lawful for the court inflicting the fine to direct that the party stand committed until the fine is paid, although there be no specific