Appendix — Baker v. McCollan

Supreme Court brief1979

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Text

| FILED

I MAR 2 1979

‘ :

b MMAR. BODAK, JR, CLERK

APPENDIX Ne ni naan none veel

———————_—————————

In the Supreme Court of the United States

October Term, 1978

No. 78-752

T. L. BAKER

LINNIE CARL McCOLLAN

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR CERTIORARI FILED NOVEMBER 6, 1978

CERTIORARI GRANTED JANUARY 15, 1979

INDEX

Page

Relevant Docket Entries ii

Relevant Pleadings, Charge, Findings, or Opinion

(a) First Amended Answer of Defendant

T. L. Baker ; 1

(b) Plaintiff's Second Amended Complaint 6

(d) Judgment on Directed Verdict for Defendants 15

Opinion of the United States Court of Appeals for the

Fifth Circuit ............. ie asia Sica a 17

Portions of Transcript of Proceedings

Excerpts from testimony of T,. L. Baker _. 24

Excerpts from testimony of Gary Tate ey

Excerpts from testimony of Linnie Carl

I OSM oo ghee eh od ty A A Pte Kens 93

Copies of Plaintiff's Exhibits Nos. 2, 3, 4,7 and9...... 115

RELEVANT DOCKET ENTRIES

August 23, 1974—Filed COMPLAINT and issued SUM-

MONS (2)

September 17, 1974—Filed Defendant’s (T. L. Baker) ORIG-

INAL ANSWER with Jury Demand

December 19, 1974—Filed FIRST AMENDED COMPLAINT

adding Transamerica Insurance Co. as deft

January 13, 1975—Filed DEFENDANTS’ (Transamerica Ins.

Co’s) ORIGINAL ANSWER with Jur: Demand

May 7, 1975—Filed FIRST AMENDED ANSWER of De-

fendant, T. L. Baker

June 6, 1975—Filed SECOND AMENDED COMPLAINT

November 12, 1975—Filed Deft’s (Baker) (second) MOTION

for Directed Verdict (granted in open court) WMTJr

November 12, 1975—Filed DIRECTED VENDICT for defend-

ants (Baker and Transamerica)

November 26, 1975—Filed JUDGMENT on directed verdict for

defendants, T. L. Baker and Transamerica Ins. Co. . . . on

pltf’s motion, non-suit as to defts G. R. Tate and Frank Dyson

and they are dismissed with prejudice and that said defts

recover their costs... pltf take nothing as to defts Baker and

Transamerica and that defts recover their costs WMTJr

December 5, 1975—Filed Pltf’s NOTICE OF APPEAL from

Judgment filed on 11-26-75. Copy of Notice & docket sheet

mailed to Court of appeals. Atty notified other counsel.

In the

United States District Court

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CIVIL ACTION NO. CA3-74-823C

LINNIE Cart McCo.ian,

Plaintiff,

G. R. Tate, T. L. BAKER, JoHN Dor and

TRANSAMERICA INSURANCE COMPANY,

Defendants.

FIRST AMENDED ANSWER OF DEFENDANT,

T. L. BAKER

Now comes T. L. BAKER, one of the Defendants in the

above styled and numbered cause, and in response to the

First Amended Complaint of Plaintiff herein, answers and

shows the Court the following:

_ Defendant admits that Plaintiff has asserted var-

ious Federal statutory and Constitutional bases for

bringing this suit as alleged in Paragraph 1 of Plaintiff’s

First Amended Complaint but denies that Plaintiff has

alleged facts giving this Court jurisdiction of this matter.

2. Defendant does not have information sufficient to

form a belief as to the truth of the allegations contained

in Paragraph 2 of Plaintiff’s First Amended Complaint.

3. In response to paragraph 3 of Plaintiff’s First

Amended Complaint, Defendant Baker admits that he

is a resident of Potter County, Texas, and that he is the

duly elected Sheriff in and for such county. Defendant

further admits that he is generally responsible for the

Potter County jail under Article 5116, V.A.T.S., but

denies that he is responsible for all actions of his depu-

ties as alleged. Defendant is without information suffi-

cient to form a belief as to the truth of the remaining

allegations of Paragraph 3.

4. Defendant admits that Plaintiff was brought to the

Potter County jail by deputies of the Potter County

Sheriff’s office on or about December 30, 1972 but denies

that he remained there until January 3, 1973 but would

show the Court that he was released on January 2, 1973.

Defendant further denies that said Plaintiff was ar-

rested and incarcerated without probable cause and

without authority of a warrant. Defendant admits that

Plaintiff was released when it was determined that his

identity had been confused ‘with that of his brother,

one Leonard C. McCollan. Defendant is without infor-

mation sufficient to form a belief as to the truth of the

allegations in Paragraph 4 of Plaintiff's First Amended

Complaint with respect to allegations concerning his

arrest and confinement by the City of Dallas. All

other allegations of Paragraph 4 are denied.

5. Defendant Baker denies that Plaintiff was dam-

aged as alleged in Paragraph 5 of Plaintiff’s First

Amended Complaint as a result of any actions by

Defendant Baker or for which he might be responsible

and further denies that Plaintiff suffered any damages

as alleged in such paragraph.

6. Defendant denies that Plaintiff is entitled to

recover any damages from Transamerica Insurance

Company as a result of any actions of this Defendant

as alleged in paragraph 6.

7. Defendant denies that there was any gross

negligence or reckless disregard for the rights of

- Plaintiff giving rise to exemplary damages as alleged

in paragraph 7 of Plaintiff's First Amended Complaint

and would show the Court that this Defendant at all

times acted with due regard for said Plaintiff's rights.

FIRST DEFENSE

The Complaint fails to state a claim against this Defendant

upon which relief can be granted.

SECOND DEFENSE

The Complaint does not allege facts sufficient to show

that it is one arising under the Constitution or laws of the

United States.

THIRD DEFENSE

ai The Complaint fails to invoke the jurisdiction of this

ourt.

FOURTH DEFENSE

Defendant Baker acted in good faith in all actions taken

by him and in carrying out his duties of Sheriff with re-

spect to Plaintiff and in so doing is not liable to said

Plaintiff as alleged in Plaintiff’s Complaint.

FIFTH DEFENSE

Defendant Baker and all persons acting for or under

him acted in good faith in arresting and confining Plaintiff

and taking any action alleged by Plaintitf to have violated

his rights.

SIXTH DEFENSE

Defendant Baker is not responsible under the doctrine

of “respondeat superior” for the actions of his deputies and

is not liable for any conduct of his deputies as alleged by

Plaintiff herein.

SEVENTH DEFENSE

Defendant Baker and all persons acting for or under him

had probable cause for arresting and confining Plaintiff.

EIGHTH DEFENSE

Plaintiff was, at all times, afforded due process of law

under the Constitution and Statutes of the United States

in his arrest and confinement and any actions or failures

to act by Defendant Baker or persons acting for or under

him were not such actions as will breach any right or

rights afforded Plantiff under the Fourteenth Amendment

to the United States Constitution or Title 42 U. S. C. 1983.

NINTH DEFENSE

Plaintiff participated in creating the circumstance lead-

ing to his arrest by allowing his brother to obtain a dupli-

cated driver’s license with information thereon describ-

ing Plaintiff and Plaintiff should therefore not be allowed

to recover where he created or helped to create the situation

leading to his arrest and confinement.

TENTH DEFENSE

Plaintiff knew or should have known that his brother

was using Plaintiff’s name and identifying himself as

Plaintiff and should have taken action tu inform authorities

of the confusion of identities. Plaintiff’s failure to take

such action contributed to the situation leading to his

arrest and confinement and should bar Plaintiff from re-

covery for damages to which his own failures contributed.

ELEVENTH DEFENSE

Defendant Baker was acting at all times in the arrest

and confinement of Plaintiff pursuant to a validly issued

warrant for the arrest of a person named and identified as

Plaintiff and immediately released said Plaintiff upon

learning that he was not the person for whim the warrant

was intended.

Wuenreror, Defendant, T. L. BAKER, prays that Plaintiff

take nothing by his suit and that Plaintiff’s suit be in all

things dismissed and that the Defendant recover from

Plaintiff his costs in this behalf expended.

Respectfully submitted,

Kerry KNnorpp, County ATTORNEY

SAMUEL C. Kiser, ASSISTANT

CouNTY ATTORNEY +

303 Courthouse

Amarillo, Texas 79101

A. W. SORELLE II

UNDERWOOD, WILSON, SUTTON,

Berry, STEIN AND JOHNSON

P. O. Box 9158

Amarillo, Texas 79105

ATTORNEY For T. L. BAKER

ONE OF DEFENDANTS

iii ee eee eee eee ee 2 2 2 2 2 2 2 2

One of Counsel

(CERTIFICATE OF SERVICE OMITTED)

In the

United States Bistrict Court

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CIVIL ACTION NO. 3-74-823-C

Linnie Cart McCoLLan, ;

Plaintiff,

v. !

G. R. Tate, T. L. BAKER, FRANK Dyson and

TRANSAMERICA INSURANCE COMPANY,

Defendants.

SECOND AMENDED COMPLAINT

NOW COMES LINNIE CARL McCOLLAN, hereinafter

sometimes referred to as plaintiff and for cause of action

would show as follows:

1. This action is brought pursuant to the Four-

teenth Amendment to the United States Constitution

and Title 28 U.S.C. 1343(3) (4) and Title 42 U.S.C.

1983, 1988.

2. The plaintiff is at all relevant times herein a

resident of Dallas County, Texas.

3. Defendant, G. R. Tate, is a resident of Dallas

County, Texas, and is a police officer for the City of

Dallas, holding Badge +2835. Defendant, T. L. Baker,

is a resident of Potter County, Texas and is the duly

elected and qualified sheriff in and for such county.

Article 5116, V.A.T.S., places the responsibility for the

county jail directly upon the sheriff and defendant

herein, T. L. Baker, and responsibility cannot be dele-

gated to others. Texas law also makes defendant Baker

responsible for the actions of his deputies. Defendant,

Frank Dyson, is a resident of Dallas County, Texas, and

is at all relevant times herein the Chief of Police for

the City of Dallas, Texas; and the City of Dallas Ordi-

nances and the City of Dallas Charter make him the

keeper of the jail operated by the City of Dallas Police

Department. Defendant, Transamerica Insurance Com-

pany, is a corporation organized and existing under and

by virtue of the laws of the State of California and

maintains its principal place of business in Los Angeles,

California, and is duly authorized to do business in the

State of Texas and is subject to process. It maintains

an office in Dallas, Dallas County, Texas, and its regis-

tered agent for service is J. D. Foster. Process may be

served upon Mr. Foster at 4230 LBJ Freeway, Dallas,

Texas,

At all times material hereto defendants Tate, Baker

and Dyson were acting under color of their official ca-

pacity and their acts were performed under color of the

statutes of the State of Texas and/or the ordinances

of the City of Dallas, and defendant, Transamerica

Insurance Company, was at all times material hereto the

surety for defendant, Baker.

4, On December 26, 1972, while your plaintiff was

driving a car for his employer, Mail Messenger Service,

he was stopped and accused by defendant City of Dallas

Police Officer, G. R. Tate, of running a red traffic light

at the intersection of Second and Scyene in the City of

Dallas, Texas. Defendant Tate then issued your plaintiff

a traffic citation to appear on January 17, 1973, in Dallas

Corporation Court No. 4 at 8:00 A.M. After plaintiff

signed the traffic citation and promised to appear in

court as directed, defendant Tate placed handcuffs on

your plaintiff and put him in his police vehicle and

transported plaintiff to a jail under the supervision of

defendant, Frank Dyson. Your plaintiff was incarcerated

without probable cause and without the authority of a

warrant authorizing the arrest of your plaintiff. On

December 30, 1972, your plaintiff was taken in handcuffs

and in chains by deputies of defendant, T. L. Baker, to

the Potter County Jail. Your plaintiff was then incar-

cerated in the Potter County Jail and remained there

until January 3, 1973, when he was released and told

that he was mistakenly arrested and incarcerated be-

cause a person lawfully charged with the sale of nar-

cotics had given your plaintiff's name as his own.

Throughout the entire illegal incarceration and illegal

arrest and imprisonment of your plaintiff he was never

(1) brought before a judge or magistrate and/or

(2) advised of his right to counsel and/or

(3) permitted to telephone his wife or family

and/or '

(4) telephone or consult with a lawyer.

Each of the defendants separately and in concert

acted outside the scope of his jurisdiction and without

authorization of law acted wilfully, knowingly and negli-

gently to deprive the plaintiff of his right to:

(1) Freedom from illegal seizure of his person;

(2) Freedom from unlawful arrest and imprison-

ment;

(3) Freedom from illegal detention and imprison-

ment;

(4) Freedom from physical intimidation.

Several times during the illegal arrest and imprison-

ment of your plaintiff by the defendants herein he

insisted that there was some mistake and that he had

done nothing which would authorize his imprisonment.

All of these protests were ignored. At no time during his

imprisonment, with the exception of the last hours of

his imprisonment was any attempt made to match your

plaintiff’s physical description, finger prints or photo-

graph with the actual perpetrator of the crime for which

your plaintiff was falsely and illegally arrested and im-

prisoned,

5. As a direct and proximate cause of the aforesaid

acts of each of the defendants herein your plaintiff suf-

fered bodily pain and injury and mental anguish from

being imprisoned in small, crowded, dirty, vermin in-

fested jail cells and your plaintiff and his family was

deprived of his income and support and the plaintiff was

denied the right to comfort and aid his wife ad child

due to his incarceration. All of these damages amount

to a sum not less than $50,000.00.

6. Your plaintiff is entitled to recover damages from

defendant, Transamerica Insurance Company, due to

the fact that it is the surety of defendant Baker and

Texas law provides that the surety of a sheriff is

— in damages jointly and severally with the

sheriff.

7. Due to the gross negligence and reckless dis-

regard of the defendants herein in not immediately

ascertaining that they had falsely and illegally impris-

oned your plaintiff, he becomes entitled to exemplary

damages in a sum of $50,000.00.

WHEREFORE, plaintiff demands judgment against the de-

fendants, each of them, jointly and severally, in the amount

of $50,000.00, and he further demands punitive damages

against defendants, and each of them, jointly and severally,

in the amount of $50,000.00, plus the costs of this action;

and he further demands such other relief as to this Court

seems just, proper anu equitable.

Respectfully submitted,

Douglas R. Larson

800 Main Street

Dallas, Texas 75202

(214) 741-2958

Attorney for Plaintiff

CERTIFICATE OF SERVICE OMITTED

In the

United States District Court

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CIVIL ACTION NO. 3-74-823-C

LINNIE Cart McCoL.an,

Plaintiff,

US.

G. R. Tats, T. L. BAKER, FRANK Dyson and

TRANSAMERICA INSURANCE COMPANY,

Defendants.

MOTION FOR DIRECTED VERDICT

Comes Now Defendant, T. .. Baker, and after Plaintiff

and Defendant rested and moves the Court to grant a

directed verdict in favor of said Defendant, dismissing Plain-

tiff’s cause herein and for grounds would show the following:

Plaintiff has failed to plead a cause of action against

Defendant, T. L. Baker, there being no allegations of any

personal acts of said Defendant nor any facts causing him to

be liable for the acts of others.

II.

The evidence presented by Plaintiff raises no fact issues

which, if found favorable to Plaintiff, would support a verdict |

against Defendant, T. L. Baker.

II.

Plaintiff failed to produce any evidence tending to show

that he was denied any rights cognizable under 42 U.S.C.

§ 1983, there being no evidence that anyone knowingly de-

prived him of any right without due process of law.

IV.

Defendant, T. L. Baker, is not liable, as a matter of law,

for arrest and confinement pursuant to a warrant for arrest

which is valid on its face.

Plaintiff failed to show that Defendant Baker acted in

any manner other than in the good faith beljef that he was

executing a valid warrant for arrest issued pursuant to proper

authority.

VI.

There is no deprivation of a right giving rise to an action

under 41 U.S.C. § 1983, as a matter of law, by failing to take

Plaintiff before a magistrate or failing to warn Plaintiff of

his rights as alleged by Plaintiff.

Vil.

The evidence with respect to Defendant Baker shows only

that he acted to secure Plaintiff his freedom and raises no

issue concerning any action by Defendant Baker to improp-

erly deprive Plaintiff of his freedom.

VIII.

Defendant Baker is not responsible, as a matter of law,

for the acts of his subordinates under the doctrine of “re-

spondeat superior” and Plaintiff has failed to produce any

evidence to indicate that Defendant authorized, participated,

or in any way ratified any acts of his subordinates which

violated any rights of Plaintiff.

IX.

Plaintiff has failed to show any physical intimidation as

a violation of the Civil Rights Act alleged by Plaintiff in his

complaint.

Plaintiff has failed to show that he was refused permission

to telephone or consult with his wife, family, or an attorney

and such failures, if shown, could not be attributed to De-

fendant Baker.

XI.

An arrest and confinement pursuant to a warrant for

arrest valid on its face does not create any cause of action

under 42 U.S.C. § 1983.

XII.

Plaintiff failed to produce any evidence that Defendant

Baker had any knowledge that the warrant for arrest pur-

suant to which Plaintiff was arrested, had been issued for the

wrong person.

14 15

WHEREFORE, Defendant Baker moves the Court to grant In the

directed verdict for each and all of the foregoing reasons.

of wresicoecaanaiens . United States District Court

Respectfully submitted, FOR THE NORTHERN DISTRICT OF TEXAS

Kerry Knorpr and SAMUEL C. , DALLAS DIVISION

KISER

Office of the County Attorney

Potter County Courthouse

Amarillo, TX 79105 CIVIL ACTION NO. CA3-74-8 33C

A. W. SoRE te III

UNbDERWOOD, WILSON, SUTTON,

Berry, STEIN & JOHNSON Linnie Cart McCo.ian,

P. O. Box 9158 Plaintiff,

Amarillo, TX 79105

Attorneys for Defendant,

T. L. BAKER

Vv.

G. R. Tate, T. L. BAKER, FRANK Dyson and

TRANSAMERICA INSURANCE COMPANY,

‘ Defendants.

One of Counsel

JUDGMENT

This cause came for trial before the Court and a jury

on the 10th day of November, 1975, and prior to receiving

| any evidence, Plaintiff moved to take a non-suit against

Defendants, G. R. Tate and Frank Dyson, and to accept

dismissal of this cause as to those Defendants with prejudice,

therefore, it is hereby .-

| OrDERED, ADJUDGED and Decreep that Defendants, G. R.

| Tate and Frank Dyson are dismissed with prejudice and that

| said Defendants have and recover their cost of action from

, ! | Plaintiff and have execution therefor; and

The issues having been duly tried as to remaining De-

fendants, T. L. Baker and Transamerica Insurance Company,

and on the 12th day of November, 1975, after the close of

evidence by both parties, the Court directed the jury on

motion of Defendant, T. L. Baker, to render a verdict for

Defendants, T. L. Baker and Transamerica Insurance Com-

pany, that Plaintiff take nothing by his action against said

Defendants, and such verdict having been rendered by the

jury, it is hereby,

OrperED, ADJUDGED and DecreEeED that Plaintiff take nothing

by its action against Defendants, T. L. Baker and Trans-

america Insurance Company, and that said Defendants have

and recover their costs of action, and that Defendants have

execution therefor.

Datep November 26, 1975.

W. M. Taylor, Jr.,

United States District Judge

LINnNIE Cart McCoL.an,

Plaintiff-Appellant,

G. R. TATE ET AL.,

Defendants,

T. L. BAKER AND TRANSAMERICA

INSURANCE COMPANY,

Defendants-A ppellees.

No. 76-1268.

United States Court of Appeals,

Fifth Circuit.

June 19, 1978.

Appeal from the United States District Court for the

Northern District of Texas.

Before WISDOM and GEE, Circuit Judges, and VAN

PELT,”* District Judge.

GEE, Circuit Judge:

Plaintiff's name is Linnie McCollan. His brother,-whose

real name is Leonard McCollan, somehow procured a dupli-

cate of plaintiff's driver’s license, identical to plaintiff’s

except that Leonard’s picture graced it instead of Linnie’s.

Leonard was arrested on a narcotics charge and since he

was carrying the doctored driver’s license, he was booked

under the name of Linnie C. McCollan.

Leonard was released on bond. His bondsman received an

order allowing him to surrender his principal and a warrant

issued for the arrest of Leonard. Since Leonard had been

using his brother’s name, the warrant was in the name of

Linnie C. McCollan. Linnie (the real Linnie) was arrested

on the warrant in Dallas County on December 26, 1972.

* Senior District Judge of the District of Nebraska, sitting by

designation.

He was kept in a Dallas jail until December 30, when depu-

ties from Potter County, where the warrant had issued, took

custody of him. He was kept in the Potter County Jail

until January 2, 1973, when the error was noticed and he

was released.

Linnie subsequently brought this action in federal court

claiming violation of his rights under the Fourteenth Amend-

ment and section 1983, The trial judge directed a verdict

for Potter County Sh riff T. L. Baker and his surety, defend-

ant Transamerica Insurance Company. Plaintiff's claims

against all other defendants were dismissed with prejudice.

Only the directed verdict as to Baker and Transamerica is

before this court on appeal. Having originally postponed

decision in this case pending the Supreme Court’s disposi-

tion of Procunier v. Navarette, —— U.S. ——, 98 S.Ct.

885, 55 L. Ed. 2d 24 (1978),' we now hold that plaintiff's

case should have been presented to the jury and, accord-

ingly, we reverse and remand for a new trial.

The facts as developed at trial are largely undisputed,

and to the extent there is conflict we must view the evidence

in the light most favorable to the nonmoving party, in this

case the plaintiff. See Boeing Co. v. Shipman, 411 F. 2d 365

(5th Cir. 1969) (en banc). If the evidence, when viewed in

this light, is so one-sided that reasonable minds could not

reach a contrary verdict, the district court’s directing the

verdict in favor of the defendant was proper. [bid. If reason-

able minds could reach contrary conclusions, the issue should

have gone to the jury.

' Procunier, which had been argued but not decided at the time of

oral argument in this case, a inter alia, the issue of

whether simple negligence on the part of a state official could give

rise to § 1983 liability. See Procunier v. Navarette, US. ‘

, 98 S. Ct. 855, 862—63, 55 L. Ed. 2d 24 (Burger, C. J., dis-

senting). However, the Supreme Court disposed of the case on other

grounds,

When the Dallas police notified the Potter County Shenff’s

Department that they had arrested “Linnie C. McCollan,’

the identification of plaintiff as the man wanted under the

warrant was verified by his birthdate as shown on his li-

cense. Unfortunately, the written information on both Linnie

C. McCollan’s and Leonard (alias Linnie C.) McCollan’s

driver’s licenses was identical. So this verification failed to

reveal the error. The Potter County Sheriff’s Department

did not send the mugshots and fingerprints of Leonard

McCollan which it had in its files. Nor did the sheriff’s

deputies who drove to Dallas to pick up the plaintiff take

this identifying material with them. When the deputies

brought plaintiff to the Potter County Jail on December 30,

no one was on duty in the Identification Department, and

no one compared plaintiff with the photographs and finger-

prints on file. Had the photographs and fingerprints been

sent or carried to Dallas or had the identifying information

in the file at the sheriff’s office been checked, the mistake

would have been evident. Although plaintiff is Leonard’s

brother, he does not resemble Leonard in appearance.

The leading case in the Fifth Circuit on a sheriff’s lia-

bility for false imprisonment under section 1983 is Bryan v.

Jones, 530 F. 2d 1210 (5th Cir.) (en banc), cert. denied,

429 U.S. 865, 97 S. Ct. 174, 50 L. Ed. 2d 145 (1976). The

court, sitting en banc, held that a sheriff has the kind of

qualified immunity which the Supreme Court has recog-

nized in certain other public officials. See Wood v. Strick-

land, 420 U.S. 308, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975);

Scheuer v. Rhodes, 416 U.S, 232, 94 S. Ct. 1683, 40 L. Ed.

2d 90 (1974); Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213,

18 L. Ed. 2d 288 (1967). Under Bryan a sheriff is not liable

under section 1983 if he acted in good faith and he acted

reasonably. 530 F. 2d at 1215,

Bryan made clear that in a section 1983 false imprison-

ment action the reasonable good faith of the sheriff comes

into play only as a defense. To make out a prima facie

case, a plaintiff need show only: (1) intent to confine;

(2) acts resulting in confinement; and (3) consciousness of

the victim of confinement or resulting harm. 530 F. 2d at

1213, citing Restatement (2d) Torts § 35 (1965). There can

be no doubt that the sheriff’s deputies intended to confine

and did confine the plaintiff. Similarly, there can be no doubt

that plaintiff was aware of the fact that he was being held in

jail. Since the deputies’ actions were authorized by Sheriff

Baker and the same actions were in keeping with the policies

of the Potter County Sheriff’s Department at that time,

plaintiff established his prima facie case against Sheriff

Baker. See Jennings v. Patterson, 460 F. 2d 1021 (5th Cir.

1972). Cf. Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598, 46

L. Ed. 2d 561 (1976) (supervisory officials not subject to in-

junction under section 1983 where no showing that they

authorized or approved lower officials’ misconduct). Assum-

ing arguendo that the actions and intent of the deputies are

not properly attributable to the sheriff,’ on the facts of this

‘ Prior § 1983/false imprisonment cases have not dealt squarely

with the problem of whether a sheriff must have personal knowledge

that a person is being held in his jail in order for him to be liable

under 983. See Bryan v. Jones, supra; Whirl v. Kern, 407 F. 2d

781 (5th Cir.) cert. denied; 396 U.S. 901, 90 S. Ct. 210, 24 L. Ed. 2d

177 (1969). In Whirl the court discussed the absence of personal

knowledge only with respect to the state-law false imprisonment

issue, over which the court had pendent jurisdiction 407 F. 2d at

795. With respect to the federal false imprisonment claim under

§ 1938, Whirl held that a sheriff need not know that a prisoner's

detention is unlawful. But the — says nothing about a sheriff's

knowledge that the prisoner is being detained and § 1983 liability.

Bryan answered the qualified immunity question but said nothing

about the application of respondeat superior notions to plaintiff's

prima facie case, See also Lewis v. Hyland, — U.S. —, 98 S. Ct. 419,

54 L. Ed, 2d 291 (1977) (Marshall, J., dissenting from denial of

certiorari); Developments, 90 Harv. L. Rev. 1133, 1206-09 (1977).

case plaintiff was entitled to go to the jury on the basis of

Sheriff Baker’s own action or inaction. To incur liability

under section 1983 a state official need not directly subject a

person to a deprivation of his constitutional rights. The lan-

guage of the statute’ and the holdings of this court make

clear that he can be held liable if he causes the plaintiff to

be subjected to a deprivation of his constitutional rights.

See Sims v. Adams, 537 F. 2d 829 (5th Cir. 1976). Sheriff

Baker’s failure to require his deputies to transmit the identi-

fying material described above “caused” plaintiff’s continued

detention. Plaintiff has made out a prima facie case under

Bryan, and Sheriff Baker can escape liability only if he acted

in reasonable good faith. As the court said in Bryan, “[ilf

[the sheriff] negligently establishes a . . . system in which

errors of this kind are likely, he will be held liable.” 530

F. 2d at 1215.

The only real question in this case is whether the sheriff’s

failure to introduce a policy of sending photographs and

fingerprints or his failure to have someone on duty to check

plaintiff's identity upon his arrival or during his stay at

Potter County Jail was unreasonable.‘ Since plaintiff in no

way challenges the subjective good faith of the sheriff, his

qualified immunity hangs on the reasonableness of his action

* Section 1983 reads:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory, subjects,

or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the Consti-

tution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceedings for

redress.

(Emphasis added).

‘ Since the sheriff did not take office until after the warrant had

issued in the name of “Linnie C. McCollan,” he cannot be held re-

sponsible for any conduct by the sheriff's department prior to that

time.

or inaction. The sheriff himself testified that it was a stand-

ard practice in most sheriff's departments the size of his to

send such identifying material. Certainly the jury could have

found that he behaved unreasonably in failing to institute

a similar policy. Alternatively, the jury might have concluded

that comparing the date of birth, as listed in the sheriff's files,

with the date of birth on plaintiff’s driver’s license when

he was arrested in Dallas was sufficient safeguard against

arresting and detaining the wrong person and that it was

reasonable for the sheriff not to require his deputies to

take the additional precaution of sending the photographs

and fingerprints.

Defendant contends that the existence of the warrant

for the arrest of a person named Linnie C. McCollan created

a duty in him to arrest and detain the plaintiff. He relies on

Perry v. Jones, 506 F. 2d 778 (5th Cir. 1975), for the propo-

sition that since plaintiff was arrested and detained on a

warrant fair on its face, he has committed no wrong cog-

nizable under section 1983.

Defendant misperceives his duties. His argument would

find a duty in a police officer or sheriff to arrest any person

who bears the name in which a warrant was issued. A war-

rant for John Smith would put a policeman under a duty to

arrest the first John Smith, or perhaps all John Smiths, he

encountered. Such cannot be the law.

We are not saying that a sheriff is under a duty to make

an independent investigation as to the guilt or innocence

of a person wanted under a warrant. If a warrant was issued

for the arrest of an individual and the individual actually

wanted under that «varrant is arrested, the arresting officer

has fulfilled his duty, and he will not be liable for false

arrest or false imprisonment merely because the person

arrested is later found to be innocent of the charges against

him. Perry v. Jones, supra. We are saying that the sheriff

or arresting officer has a duty to exercise due diligence in

making sure that the person arrested and detained is actually

the person sought under the warrant and not merely some-

one of the same or a similar name. See Restatement (2d)

Torts § 125, comment (d) 1965.

REVERSED AND REMANDED.

DIRECT EXAMINATION

[31] BY MR. LARSON:

“Q Would you tell the jury your name, please?

“A T. L. Baker.

“Q And how are you employed at the present time?

“A Sheriff of Potter County.

“Q And how long have you been the Sheriff of Potter

County?

“A Since November 20, 1972.

“Q Now, during the proceedings in this lawsuit I have

asked you to seek out your — search out your records and

determine whether or not you had any papers regarding

the arrest of a man named Leonard McCollan, is that right?

“A That’s right.

“Q All right. Now, before we go into that, though, let’s

talk about what you do when you arrest somebody and

take them up to your jail. Suppose I were arrested in Potter

County for some charge and I was taken to your jail. What

would you do with me first?

“A From the time I arrested you?

“Q That’s right.

“A Upon the arrest you would be taken to the courthouse

before the magistrate there at the courthouse and then up

to the jail at that time.

“Q All right. Well, now. When you got me up to the [32]

jail you would take my picture, wouldn’t you?

“A It depends on whether you were going to be released

immediately or whether you were going to be there a while

whether your picture would be taken, but before your re-

lease it would be.

“Q All right. Well, at some time before I was let go you

would take my picture, wouldn’t you?

“A Yes.

“Q Then you would also take my fingerprints, wouldn’t

you?

“A Yes.

“Q Now, you take two sets of fingerprints, isn’t that

right, or do you take three sets?

“A Three sets.

“Q All right. And you keep one in your office; right?

“A Right.

“Q And you send one to the FBI?

“A Right.

“Q And you sent one to the Department of Public Safety;

is that right?

“A That’s right.

“Q All right. For the benefit of the jury, the Department

of Public Safety is in essence the Texas Highway Patrol and

the Texas Rangers?

“A Yes.

[33] “Q And they keep records down in Austin as to all

the arrests in the State of Texas, is that right?

“A And the FBI is the Federal Bureau of Investigation

and they have offices not only in Washington, D. C., but in

all major cities and they keep records — that’s right.

“Q On people that have been arrested? Is that right?

“A Yes, sir.

THE COURT: Wait a minute. Will you speak out a little

louder, I don’t know that the jury can hear you.

THE WITNESS: Okay.

“Q (By Mr. Larson) Now, there’s one other place where

you send information, isn’t that true?

“A The fingerprint cards, no, that’s the only place we sent

them.

“Q Isn’t there a computer center called the National

Crime Information Cente:?

“A This is put on your teletype if it is an outstanding

warrant only. The information is only put in there where

there’s an outstanding warrant.

“Q Okay. If there wasn’t any outstanding warrant on me?

“A There wouldn’t be any information then to send.

“Q But when you put me in your jail you would check

to see if there were any outstanding warrants on me any-

where [34] else, isn’t that right?

“A Right.

“Q Now from the records in your department did anyone

take the pictures of the person we now know is Leonard

McCollan?

“A Yes.

“Q Do you know when?

“A October, ’72, I believe.

“Q Do we know the exact date?

“A No, sir.

“Q Well, we have a warrant?

“A Not off hand.

“Q We have a warrant, don’t we?

“A Yes, sir.

“Q Would you go through these papers and find it for

me, the original warrant for Leonard — or Linnie McCollan

is what it says on the warrant, but it was actually Leonard

McCollan?

“A I don’t believe I have it.

“Q See if you have it in this stuff here (indicating).

“A Okay. The original was on the 5th of October, ’72.

“Q All right. May we see that?

“A Yes.

MR. LARSON: I would like to have this marked [35] as

Plaintiff's One.

(Plaintiff’s Exhibit Number One

was marked for identification by

the Court Reporter.)

“Q (By Mr. Larson) Now, for the record, this is what

has been marked as Plaintiff’s Exhibit One, and that’s the

original arrest warrant for a man known as Linnie Carl

McCollan, who we now know as Leonard McCollan, is that

right?

“A Yes.

MR. LARSON: Offer Plaintiff’s Exhibit One.

MR. KNORPP: Your Honor, we have no objections, with

this clarification, and that would be that counsel’s question

to Mr. Baker was the first arrest of Leonard McCollan and

the Sheriff made a response to that and the warrant concerns

Linnie McCollan and —

THE COURT: Well, it will speak for itself won’t it?

MR. KNORPP: Yes, Your Honor, but the Sheriff will

have a date as being the original arrest of Leonard McCollan.

THE COURT: Well, what I understand is being asked

— now, is this the warrant you’re asking for?

MR. LARSON: Your Honor, I was afraid this was going

to happen. They’re going to try to confuse everybody with

all the records and what not. What I asked from him and

what I wanted to know was is this [36] the first warrant

that was issued out of Potter County for the arrest of the

man known as Linnie Carl McCollan but we now know his

true name is Leonard McCollan, and he said “yes”.

THE COURT: What is that, Plaintiff’s Exhibit One?

MR. LARSON: Yes sir.

THE COURT: And it’s for whom?

MR. LARSON: It says: “You are commanded to take

the body of Linnie Carl McCollan.”

THE COURT: All right, is that the first one, Sheriff?

THE WITNESS: Yes, sir.

THE COURT: All right.

MR. LARSON: Thank you.

“Q (By Mr. Larson) Now, the man that is identified in

that warrant was placed in your jail about October the

fifth, is that right, of 1972?

“A Tenth of October.

“Q Well, do you need to see the warrant?

“A Yeah. Sixth.

“Q On the sixth of October?

THE COURT: Sheriff, you’re going to have to speak up.

I don’t think the jury can hear you. Don’t have a private

conversation with him, everybody in the courtroom has got

to hear you.

[37] THE WITNESS: Yes, sir.

“Q (By Mr. Larson) So Linnie Carl McCollan or the man

that was identified as Linnie Carl McCollan was arrested

on the sixth of October, 1972; is that right?

“A That’s right.

“Q Now, according to your procedures in your jail, you

took this man’s picture and his fingerprints at one time or

another, didn’t you?

“A Linnie Car McCollan that was arrested?

“Q Yes.

“A Yes. :

“Q And do you have those pictures there with you?

“A Yes.

MR. LARSON: Would you mark these as Plaintiff’s Two

and Three?

(Plaintiff's Exhibits Two and

Three were marked for identifica-

tion by the Court Reporter.)

“Q (By Mr. Larson) All right, for the record, these are

the photographs, Plaintiff’s Exhibits Two and Three, that

were taken of the man identified as Linnie Carl McCollan

on or about October 6, 1972, is that right?

“A Okay. This one (indicating) was taken the ninth and

the eleventh of ’72. oj

“Q All right.

“A And this one (indicating) came out of the police [36]

dapartment on November —this is a police department

photo that was taken at that time, on October 6th.

“Q All right. But this is the man that was placed in the

Potter County jail? Is that right?

“A Yes, sir.

“Q In October, 1972?

“A Yes, sir.

MR. LARSON: Offer Plaintiff's Exhibits Two and Three.

THE COURT: They’re admitted.

“Q (By Mr. Larson) Now, this man that was placed in

jail—in the Potter County jail in October, 1972, whose

pictures we have just shown the jury and have been admitted

in evidence, you took his fingerprints, too, didn’t you?

“A Okay. The one where he was placed in jail by the

City, his fingerprints would have been taken at the City,

but they would not have been taken in our department at

that time, it’s just a transfer.

“Q He was transferred from the City?

“A From the City over to the County.

“Q Well, now did you take his fingerprints?

“A No.

“Q Nobody in your office took his fingerprints?

“A No, sir.

“Q But you had copies of them?

[39] “A Yes, sir.

“Q Do you have them with you?

“A Let me see.

No, sir, I don’t have them here.

MR. LARSON: Counsel, you had them at the time of

the deposition. Could you tell me where they might be?

MR. SoRELLE: Those were the copies we tendered.

They came off the microfilm and we may have —if you

will get the exhibits off the deposition I can show you

which ones.

MR. LARSON: They didn’t put my exhibits on the

deposition.

MR. SoRELLE: Mine weren't either.

MR. LARSON: Well, now, Counsel, you promised me

that you would have all this stuff.

THE COURT: Let’s not have a private discussion.

What’s your question?

MR. SoRELLE: Your Honor, I think Mr. Larson and

I have an agreement on what we were going to do but in

fact the items that we furnished at the time of deposition

are attached to the original deposition as filed here.

THE COURT: What do you want now?

MR. LARSON: The fingerprint card that they had

[40] on this man known as Linnie McCollan which they

had in their possession in October, 1972.

THE COURT: The Sheriff doesn’t have them there

in that file?

MR. LARSON: No, sir.

THE WITNESS: No, sir.

THE COURT: What about these? (Indicating.)

MR. KNOPP: Your Honor, we did not have posses-

sion, either at the time of the deposition or now, other

than on microfilm, and that’s what we have in the depo-

sition here that you have handed Counsel.

“Q (By Mr. Larson) Now, is that the fingerprints you

had access to?

“A Yes, sir.

MR. LARSON: Let’s have those marked, if you would.

(Plaintiff's Exhibit Number Four

was marked for identification by

the Court Reporter.)

‘

MR. LARSON: Offer Plaintiff's Four.

MR. KNORPP: No objection.

THE COURT: They’re admitted.

lug (By Mr. Larson) Now, referring to Plaintiff's Exhibit

Four, isn’t there a method by which a person’s finger-

prints are classified?

“A Yes, sir.

“Q And would you explain how? I don’t want you to

[41] explain how it’s done but explain generally what

happens when you classify someone’s fingerprints.

“A Well, the I. D. technician or someone who is skilled

in classifying them will classify the prints to points of

identification on each print.

“Q All right. And he will assign some number code to

them, isn’t that right?

“A Yes, sir. It depends on which system he uses, the

Henry System or several other systems that they have.

“Q All right. Then after they’re classified, then they’re

sent down to the Department of Public Safety, isn’t that

right?

“A No, sir. We don’t classify any prints that we send

to the Department of Public Safety.

“Q The Department of Public Safety then classifies

them?

“A Yes, sir.

“Q Then after you classify your prints for the public —

after the prints are sent to the Department of Public

Safety, then you can request what is known in the trade

as a “rap sheet”, isn’t that right?

“A Yes, sir.

“Q And tell the jury what a rap sheet is.

“A A rap sheet is the criminal history sheet of the man

who fits that fingerprint classification: name and date

[42] of birth.

“Q So the Department of Public Safety classifies people

by their fingerprints and doesn’t necessarily rely on their

names; isn’t that true?

“A That’s right. True.

“Q So we might know then that the man who was

arrested in October, his fingerprints were sent to the De-

partment of Public Safety in Austin some time about

that date; is that true?

“A Yes, sir. After his arrest at the City when they would

have sent them then.

“Q So then sorneone would have got what’s called a

rap sheet back from the Department of Public Safety,

isn’t that right?

“A Yes, sir. The agency which submits them automat-

ically gets a set of fingerprints back.

“Q How long does that take?

“A It depends on the work load of the DPS. It’s hard

to judge.

“Q In this case how long did it take?

“A It would be hard to say. We get them back some-

times in a week and sometimes longer.

“Q What’s the longest they have ever pa back?

“A I don’t know right off hand how long it’s taken them.

[43] “Q Well, by two months would you have them?

“A Should have, yes.

“Q Let’s say thirty days?

“A Possibly.

“Q You should have them by thirty days, right?

“A If the work is not stacked up; you know, if it doesn’t

hit them down there.

“Q Well, do you have anything in your records or any-

thing to indicate when you got the information, the rap

sheet back?

“A Okay. In our records we don’t have anything to indi-

cate that we got the rap sheet, when it come back.

“Q You don’t have anything that indicates you got

the rap sheet?

“A No, sir.

“Q Well, did you and the City of Amarillo kind of change

out information?

“A We do on occasions, yes.

“Q So the City is the one that arrested this man, Mr.

McCollan, the first time, is that right?

“A That’s right.

“Q So they would have had a rap sheet; isn’t that right?

“A Yes, sir, they should have.

“Q And you would have had access to it; true?

[44] “A Yes, sir. If we would have went over there.

“Q All right. Then it would have been easy for you

to find out what.this man’s rap sheet was; isn’t that right?

“A If we would have went to the City, yes, sir, we would

have had access to the rap sheet.

“Q Well, in this situation, it’s a little stronger than

that, isn’t it? Do you remember your deposition on page

thirty-seven where I asked you this question: So your

department in all likelihood knew that at the time Linnie

McCollan—and I was referring to the Plaintiff ~ was

arrested in Dallas County that Leonard was using an

alias? And your answer to that was: Yes. Then you said:

My I. D. people. Question: Should have known? Answer:

Yes.

“A Right.

“Q Is that right?

“A At the time that we gave you that deposition it

was my understanding that we would have had that in-

formation but checking further we found that the original

arrest was made by the City and it was a transfer.

“Q Are you changing your testimony now?

“A I’m saying that we didn’t have — after we left there,

after we give you the deposition, I went back and went

through my files and found that it was a transfer and we

did not have a rap sheet because it was sent in by the

City.

“Q So you’re changing your testimony now?

[45] “A Yes. From that.

“Q Did you file your deposition?

“A Yes, sir.

“Q Do you change it in the deposition you filed?

“A No, sir.

“Q All right. Now, when you arrested this man known

as Linnie McCollan— pardon me. When he was placed

in your jail he had a driver’s license, didn’t he?

“A Is this Linnie McCollan, Leonard McCollan alias

Linnie McCollan, the one you’re talking about?

“Q Yes, sir.

“A Yes, sir.

“Q Do you have that driver’s liense?

“A I should have, yes, sir.

“Q And when did you take this? You took possession

of this driver’s license at some time, didn’t you — your

office did?

“A The Officer in my department had possession of it.

“Q All right. Well, that would have been what? In

October?

“A Yes. ,

“Q Well, do you ordinarily take up someone’s driver's

license?

“A No, sir.

“Q Well, why was this one taken up?

[46] “A Because it was an altered I. D. or altered driver’s

license.

“Q How was that determination made?

“A By the information that was on the driver’s license

and the picture.

MR. LARSON: Let’s have this marked.

(Plaintiff’s Exhibit Number Five

was marked for identification by

the Court Reporter.)

MR. SoRELLE: Your Honor, we would ask that the

whole amount there be tendered. It was taken off and

evidence tagged which has certain markings that identify

the license.

THE COURT: Well, I would think that would be better

than putting the Court Reporter’s little stamp over some

par of the driver’s license.

MR. LARSON: Well, Judge, I don’t know what this is

(indicating). ;

THE COURT: Well, it’s possibly just an identification

of the license. :

MR. SoRELLE: Your Honor, it indicates certain items

of who had custody of the license and who took possession

of the license and when the Sheriff’s Department took pos-

session of the license and so forth.

THE COURT: Well, that can be proved up.

MR. LARSON: I’m not interested in that. When I

[47] saw the driver’s license the first time —

THE COURT: I’ve ruled on it. It can be proved up.

“Q (By Mr. Larson) All right. Now this is the driver’s

license that one of your officers in your office took up from

Leonard McCollan in October, 1972; is that right?

“A That’s right.

“Q And you said it had been altered, who made that

determination, did you or did someone in your office?

“A The officers in my office.

“Q What was altered about it?

“A They determined that the man’s picture on here

was not the man whose name and date of birth appears on

the license.

“Q Well, after you learned that or after your office

learned that, what did they do about trying to switch the

names around on all these warrants? Did they tell any-

body?

“A No, sir. We didn’t have that information in our I. D.

at the time.

“Q Well, you said you got it in October.

“A Yes, sir. The man who had possession of this license

was assigned to our metro unit.

THE COURT: Was what?

THE WITNESS: Assigned to our metro unit, which

is — he offices out of the City Police Department.

[48] “Q (By Mr. Larson) Is he one of your deputies?

“A Yes, sir. These files are in the City.

“Q So one of your deputies knew that the picture on

there was wrong, is that right?

“A Yes, sir.

“Q Well, was anything done about straightening out

the picture —I mean straightening out the problem, there

was a man who had a phony driver’s license and who was

using somebody else’s name?

“A The only thing, this was taken into evidence and

that’s the only thing that was done on it at the time.

“Q So nobody told anybody that the man’s real name was

Leonard McCollan as the result of taking up this driver’s

license; is that right?

“A Not that I’m aware of.

“Q Now, later on in 1972 the bondsman, for whatever

reason, he wanted to file some kind of application to go off

his bond, is that right?

“A That’s true.

“Q So we make everything crystal clear, the bond we’re

talking about that a bondsman had posted on behalf of

Leonard McCollan who was using the alias of Linnie

McCollan, is that right?

“A Yes, sir.

“Q Do you have that affidavit to go off his bond?

[49] “A Yes, sir.

“Q Now, as a sheriff, one of your functions is to take

bonds on behalf of people; isn’t that right?

“A Yes, sir.

“Q In fact, you’re the only officer authorized to take

bonds on behalf of people who are incarcerated; isn’t that

right?

“A Yes.

“Q You’re the only person in Potter County?

“A Other than the Judge. ‘

“Q But you keep the bonds, approve them aud check

out the bondsmen’s property and that sort of thing; is that

right? :

“A Yes, sir.

(Plaintiff's Exhibit Number Six

was marked for identification by

the Court Reporter.)

“Q (By Mr. Larson) Now this has been marked as

Plaintiff’s Exhibit Six, and that is the affidavit or the

“motion of surety for warrant”. In other words, the

surety, the bondsman who posted the bond for Mr.

Leonard McCollan, wanted to go off his bond; is that

right?

“A That’s right.

“Q And that was granted?

“A Yes, sir.

“Q And what happens when that is granted?

[50] “A When this is granted, then a warrant is received

in our department for the subject.

“Q All right. Well, this is dated the third day of Novem-

ber, 1972. So that would be the date that a warrant was

issued for him; is that right?

“A Yes, it should have been.

“Q Do you have that warrant there?

“A Yes, sir.

(Plaintiff’s Exhibit Number

Seven was marked for identifica-

tion by the Court Reporter.)

“Q (By Mr. Larson) We have had this marked as Plain-

tiff’s Exhibit Number Seven. Now, that’s the warrant that

was issued as a result of the bondman’s actions in this case?

“A Yes, sir.

“Q Now I notice that the warrant says: “You are com-

manded to take the body of Linnie Carl McCollan”. There

is nothing on here to indicate that he was using an alias.

“A No, sir.

“Q Why not?

“A I don’t know, sir.

“Q Well, one of your deputies had already taken up a

driver’s license and knew that he was using the wrong name;

is that right?

“A That’s right.

[51] “Q And you probably have access to a rap sheet that

came back from Austin that indicated he was using the

wrong name; is that right?

“A If he had went to the City, yes, sir.

“Q Well, in your deposition you said: So your department

in all likelihood knew at the time that Linnie McCollan was

using an alias, giving the wrong name, isn’t that true? And

you answered: Yes.

“A Yes, sir.

“Q Now, let’s move forward a little bit, and when did your

office first learn that the Plaintiff in this lawsuit was

arrested?

“A The exact time, I don’t know. It was around Decem-

ber 26th. ;

“Q All right. Well, how did you find that out?

“A By teletype.

“Q Do you have a teletype there?

“A No, I don’t believe it is. I don’t have the teletype.

“Q Do you know where it is?

“A No, sir.

“Q Did you get a phone call?

“A I don’t know.

“Q Well, did anybody in your office get a phone call?

“A I don’t know.

’ [52] “Q Have you done any checking around?

“A The man who was the head of my criminal division

at that time is no longer with me and he’s up in Oklahoma.

He would have been the one who would have gotten the

phone call if there were a phone call.

“Q All right.

“A He would have either got the teletype or the phone

call.

“Q What did your — you got this notice on the teletype

that my client had been arrested, or at least a Linnie Carl

McCol!lan had been arrested. What did you do about that?

“A Okay. As with any warrants or any people that’s ar-

rested on warrants, then we send someone as soon as possible.

As soon as we have a car or a man available we send them

and pick them up if they have not made bond at that time.

“Q So did you send someone to pick up Mr. McCollan?

“A Yes, sir.

“Q When was that?

“A On the 30th, I believe, 29th or 30th.

“Q All right. I have an old calendar here and it indicates

that the 26th fell on a Tuesday.

“A Yes, sir.

“Q Is that —

THE COURT: Now, this is the 26th of 1972?

[53] MR. LARSON: The 26th of December, 1972.

“Q (By Mr. Larson) Does that coincide with your

recollection?

“A I don’t know. Let me look at the calendar.

“Q All right.

“A Right. It is on a Tuesday.

“Q. Now, did y’all send any photographs or fingerprints

or anything down to Dallas to find out to be sure that you

had the right guy?

“A Not to my knowledge, no, sir.

“Q Well, you do that now, though, don’t you?

“A Yes, sir.

“Q And part of the reason you do that now is because

of what happened in this situation, then; is that right?

MR. SoRELLE: Your Honor, I’m going to object to this

line of questioning. I think what the Sheriff’s office does or

doesn’t do now is clearly —

THE COURT: I'll sustain the objection. «

“Q (By Mr. Larson) Well, that’s the ordinary thing done

at Sheriff’s offices about your size; Isn’t that right? You

have checked around and learned that the ordinary practice

is that they forward a copy of the man’s pictures and finger-

prints to be sure they have the right one; isn’t that right?

“A Usually you don’t forward one if you go. You take

[54] them with you.

“Q Well, you didn’t get down there until the 30th, which

was the following Friday. That was four days later?

“A That would be the 29th, I believe, would be Friday,

wouldn’t it?

“Q It was a Friday. Well, that was the 30th, wasn’t it?

“A Was the 30th on Saturday?

“Q Well, all right, it’s the 29th. I stand corrected.

“A Twenty-ninth.

“Q Twenty-ninth, all right. Well, do you have anything

in your file to indicate what time this man got to your jail?

“A Just the date, not the time.

“Q All right. What date is that?

“A On the 30th.

“Q Thirtieth?

“A Yes, sir.

“Q Well, that was the day he was checked into your jail?

“A Yes, sir.

“Q Now, you have a policy in your office that you’re sup-

posed to, as soon as a man is arrested and brought in, you

take him to I. D.,; isn’t that right?

“A Nou, he’s taken to the jail.

[55] “Q You don’t check to be sure you have the right

person?

“A The people up in the jail check your I. D.

“Q Well, when did Mr. McCollan get let loose?

“A On the 2nd, I believe.

“Q The 2nd of January, 1973?

“A Yes, sir.

“Q Well, he was booked in your jail on the 30th, but he

wasn’t let go until the 2nd. Why did it take so long to figure

out you had the wrong one?

“A Okay. The 30th, of course, is on Saturday with the

lst being a holiday. There was no one in I, D. during the

weekend or the holiday, and then the 2nd is when all of the

jail work and the paper work comes through.

“Q So you’re saying that on the weekend it’s not — and

on holidays it’s not important to be sure that you’ve got

the right person?

“A No, I’m not saying that. I’m saying that we didn’t

have anybody in I. D., you know, at that time.

“Q Well, don’t the jailers, as just a practice, you know,

take pictures and fingerprints of folks when they bring them

in?

“A Yes, sir, but they can’t take —after they take the

picture and fingerprints they have to check through I. D.

— the paper work has to go through I. D. before you’ve got

any. ‘

[56] “Q Well, where is I. D. in juxtaposition to your jail?

“A Okay. Our jail is on the seventh and eighth floor of

the courthouse and the identification and records is on the

main floor, south end.

“Q Well, did anybody ever take the Plaintiff’s picture and

fingerprints?

“A I don’t really know at this point. I can’s find any in

our records.

“Q Well, now, in your deposition you told me they got

tore up.

“A Well, this was the instructions that I had — that we

give them if it has been taken to tear them up and destroy

them. ’

“Q So that’s what happened to the Plaintiff's pictures and

everything, they got tore up?

“A Yes, sir. If they were taken, they were torn up.

“Q Well, now, you’re not even certain if they were taken

or not?

“A That’s right, sir.

“Q All right. Well, now, did your deputies that went down

here to Dallas to pick up the Plaintiff, did they have a

warrant?

“A Yes, sir.

“Q Can you show us that warrant?

[57] “A I believe you've got it.

“Q Well, now —

“A This would be the warrant they had.

“Q Well, now, on the back side of this it says: “Came to

hand 31st day of November,” it looks like ’73 but you can’t

tell because it’s been scratched out. It looks like it had a

four in there at one time. And it’s executed the 21st of

January, 197 _ and then it might be 3 or 4.

Now, this can’t be the warrant because it’s not executed

with the proper date on it. If you went down there — if your

deputies went down there on the 30th.

“A This warrant is the one that they picked him up on

and they brought him back and he was released before he

was taken before the magistrate and so he wasn’t taken back

to the magistrate and, therefore, the warrant wasn’t executed.

“Q Well, you mean you don’t execute — you don’t fill out

the little execution on the back until later on?

“A Not until you take him back before the magistrate

that issued the warrant.

“Q Well, now, Leonard McCollan had already been before

the magistrate?

“A Not on this warrant. This is on the bond withdrawal

warrant.

“Q Now, I started to go into an area a while ago and I

want to go back to it.

[58] Isn’t it standard proceedure in offices — sheriff’s

offices of your size and counties of your size to send pic-

tures of the person who’s wanted along with the finger-

prints; isn’t that standard in —

“A At what time?

“Q Well, at any time.

“A Whenever they go to pick up someone?

“Q Yeah.

“A If there’s any doubt of their identity they do, yes.

“Q Well, now, you already had some doubt of the

identity, didn’t you?

“A At that time, no, sir, I didn’t.

“Q Well, somebody in your office did, didn’t they?

“A Possibly the man that handled Leonard the first

time probably did.

“Q And whoever got that driver’s license knew it, too,

didn’t they?

“A That would have been the same man — one and the

same man. One and the same officer.

“Q And he doesn’t work for you any more?

“A No, sir, he still works for me.

“Q Well, what reason did he give you for not telling you?

“A It probably wasn’t even brought to his attention

[59] the man was arrested. At that time he was working

in metro.

“Q Well, I know it, but he had arrested somebody in

October or in December — pardon me, in September, and

he had taken up a driver’s license because it had the

wrong picture on it and he didn’t tell you about it?

“A No, sir.

“Q No reports made of it?

“A If they were, they were in his file.

“Q Well, you were relying on your deputies to do the

right thing, weren’t you? |

“A Yes, sir.

“Q And you were a new sheriff and weren't aware of all

the procedures; is that —

“A At the time this was discovered by that deputy,

he worked for the previous sheriff, and this case — in other

words the first arrest and everything was back before I

was made sheriff, so I wouldn’t have known. The warrant

was already in our file.

“Q So you were new and relying on all your deputies

to do the right thing; is that right?

“A Yes, sir.

“Q When you found out that you placed your reliance

on the wrong people did you do anything about it?

“A Yes. sir.

“Q What?

[60] We —

MR. SoRELLE: I’m going to object to what was done

or not done on the basis of being irrelevant to what the

action is in this case.

THE COURT: Well, are you asking about a change in

policy or what was done with reference to this particular

matter?

MR. LARSON: The latter.

THE COURT: Well, I’ll overrule the objection to what

was done with reference to this particular matter.

“A We changed our policy on — after this one was —

THE COURT: Well, now, I’ll sustain the objection to

changing policy about it. I don’t think that’s material. It’s

what happened on this occasion.

“Q (By Mr. Larson) Did you do anything to this

deputy?

“A No, sir.

“Q Why not?

“A I felt like the deputy had done his job.

“Q Then you approved of the job the deputy did?

“A No, sir.

“Q Well, you felt he had done his job?

“A Yes, sir. The policy at that time. He continued as

he had been and —

“Q Isn’t it important, Sheriff, that if you’ve got

[61] information that indicates that you got —the man

is using an alias name, isn’t it important that somebody gets

to know about this?

“A Yes, sir.

“Q You just don’t leave that sitting in your file; isn’t

that right?

“A It depends on the case at hand whether it would

be left in those files or not.

“Q But the standard policy in all sheriff’s departments

of your size is when someone is arrested out of county

or out of state that photographs and fingerprints are

taken to determine whether or not they got the right

person; isn’t that right?

MR. SoRELLE: Your Honor, I’m going to object again.

He’s asking about something irrelevant, what the standard

policy is in all departments and I object on the basis that

it’s not relevant to this litigation.

THE COURT: I'll sustain the objection.

MR. LARSON: Your Honor, may I address the Court?

THE COURT: Yes.

MR. LAWSON: In his deposition— well, maybe I

shoulden’t tell it in front of the jury.

THE COURT: Well, let’s take a recess right at this

time, ladies and gentlemen. About a fifteen minute recess.

[68] MR. LARSON: Before you leave the bench, I have

another witness and the City Attorney agreed to produce

him and he’s a police officer and left the City Attorney

where he could be reached and the City Attorney has

tried this number and it’s not a working number. This

witness is going to be out of pocket and there’s a problem

about trying to find him and I just want the Court to

realize that I may have to call a witness out of order to-

morrow.

THE COURT: All right.

(A recess was had.)

THE COURT: All right. Bring in the jury.

(Jury in.)

THE COURT: Let’s proceed.

CONTINUING DIRECT EXAMINATION

BY MR. LARSON:

“Q Shortly after this incident occurred you made a

determination of the standard kind of operating procedure

in counties the size of Potter County do in regards to

when someone is arrested outside the county; isn’t that

true?

“A Yes.

“Q So the procedure you found out was that mug shots

and fingerprints would be mailed down as soon as the

notice of a warrant — notice of arrest to someone wanted

under a warrant; isn’t that the standard procedure?

[69] “A It would either be mailed or taken down.

“Q Yes. Well, did any of your deputies mail anything

down to Dallas to the Dallas Police Department?

“A No, sir.

“Q Did either of your deputies take much mug shots or

were the fingerprints with them when they came down to

Dallas to pick him up?

“A No, sir. Not to my knowledge.

“Q Have you made any determination of what informa-

tion was on the computer with the National Crime Investi-

gation Center — Information Center, pardon me, at the

time or just prior to the time that the Plaintiff was arrested

in Dallas?

“A No, sir, I don’t know what was all on there. I don’t

know exactly what was in there because there’s a number

of different things that you can put in the computer.

“Q For example?

“A For example, you can put all the information that

you have on the subject, his name, date of birth, DL number

if you have it, warrant, what he’s wanted for and the

charge and any other information that you might have at

that time.

“Q Like what?

“A Well, like physical description if you have any.

“Q Well, how about the numbers that indicate what

kind of fingerprints a man has?

“A No, sir, we usually don’t put any fingerprint

[70] classification in there.

“Q So you don’t know what was in the NCIC computer

just at the time this man was arrested?

“A No, sir. This was put in prior to me being in the

sheriff's department.

“Q Well, have you made any investigation to find out?

“A Okay. When they are arrested, then that information

is cancelled out of your computer and you cannot retrieve

it.

THE COURT: I believe if you would sit back a little,

Sheriff and not so close to that mike it might do better.

“Q (By Mr. Larson) Now, Sheriff, if you would, describe

the vehicle that you used to transport prisoners from one

county to another; do you have more than one or do you

use primarily just one vehicle?

“A We have a station wagon and then we use any other

cars. It depends on what car is available, just a regular

patrol car. But, it depends on what car is available at the

time.

“Q Can you tell us what pressing business there was

that prevented you from going from Amarillo to Dallas,

waiting four days? Can you tell us what it was?

“A As far as knowing exactly what it was at that time,

the reason we didn’t send anybody the next morning, [...

. . [82] arose, what did you spend your time’ doing these as

Sheriff of Potter County?

“A Mostly just administrative work, trying to find out

just what the department was doing and if here was any

areas that needed changing, what changes to make and

just really getting my feet on the ground as to what kind

of department I really had at that time.

“Q Did you come in and institute immediately new

policies and new procedures in the office?

“A No, sir.

“Q What procedures and policies was the office running

by when you took over?

“A They were running under the old policies of the

previous sheriff.

“Q What had happened to the previous sheriff?

“A He had died in office.

“Q Was it an expected death or was it sudden?

“A No, sir. It was a sudden death.

“Q How many employees did you inherit, so to speak,

from the old sheriff’s department to the department that

you had during the month of December of ‘72?

“A All but two of them, of the people that was pre-

viously hired were rehired.

“Q In response to a question earlier as to three sets of

fingerprints being taken by your department, when are

[83] three sets of fingerprints taken of an arrestee?

“A When the arrest is made by the sheriff’s depart-

ment?

“Q That is made under your order or made by your

officers?

“A Made by my officers.

“Q° Well, what if an arrest is made by, say, the police

department and an individual is transferred to your de-

partment, do you make three sets of prints then?

“A No, sir.

“Q Why not?

“A Because it shows as just a transfer and the FBI

card and DPS card are made over at the police depart-

ment and it cuts out the duplication of making an extra

set of prints — two sets of prints.

EE EOOeeeeeeee

“Q You mentioned earlier that one of your deputies had

some sort of notice of a driver’s license that was on the

Linnie Carl McCollan who was arrested in October of 1972.

Who was that deputy?

“A Okay. That would be Ed Porter.

“Q Was he assigned to your office at that time?

“A No, he was a deputy working for me, assigned to

metro, but his office was in the City police station.

“Q What is metro?

“A It is an intelligence unit that has in it one

[84] deputy from my department, one from another

county, and then one from another county and the City

of Amarillo and the City of Canyon have men in it, and

it’s a specialized unit.

“Q What did they work with primarily?

“A Mostly they work on vice and narcotics.

“Q During this time period did you have direct daily

control over the procedures and activities of Ed Porter?

“A No, sir. They would be as it is now. There are lots

of times that go by that we may not see that deputy for as

much as two or three weeks.

“Q He didn’t report to you day to day as to his activities?

“A No, sir. He reports directly to the metro unit and to

their coordinator and works directly under him.

“Q Did Mr. Porter office in the courthouse where your

sheriff’s offices were?

“A No, sir.

“Q Were any of these records under anyone’s control

other than Mr. Porter at that time?

“A No, sir. Just the coordinator of the metro unit, be-

cause they were housed at the police deparment.

“Q Is he under your control?

[85] “A No, sir.

“Q Did you have any authority over metro and its policies

or procedures?

“A No, sir. Not at that time.

“Q How is metro funded?

“A It’s funded through a criminal justice grant.

“Q What is that?

“A It’s funded through the State Criminal Justice

Division.

“Q Is that a Federal grant?

“A Yes, it’s a Federal grant. |

“Q Who sets the policies and procedures of metro

intelligence?

“A The Board of Directors.

“Q Referring back to the question that you answered then,

although Mr. Porter was your deputy and you say that he

may have had notice of this driver’s license, was there any

reason for that notice to have been reported to you or

anyone under your direct control?

“A No, sir.

“Q Why not?

“A If it was a pending case worked out of metro then

the case, until it is completed, is kept and held in metro.

“Q Were any of those metro files available to you or any

of your deputies other than Mr. Porter?

[86] “A No, sir.

“Q Even if you had requested them?

“A The only ones that — we would have to request them

through the D.A.’s office.

“Q You indicated earlier that you had two photographs

before you of Linnie Carl McCollan and you identified those

photographs, one that’s been marked Plaintiff's Exhibit

Number Two. And can you identify who took that photo-

graph and what the date was?

“A Yes, sir. This is the Amarillo Police Department photo

in October of 1972.

“Q And Plaintiff's Exhibit Number Three, can you iden-

tify from looking at that photograph when it was taken

and by whom? ,

“A Yes, sir. This was taken by the Sheriff’s Office on

September 11, 1972.

“Q The warrant you had earlier referred to, issued on

the 5th of October, 1972, being Plaintiff’s Exhibit Number

One, was this issued apparently after the photograph that

was taken in Plaintiff’s Exhibit Three?

“A Yes, sir.

“Q Would tht indicate that there might have been an

earlier warrant issued back through your department for

Linnie Charles McCollan?

“A Yes, sir.

[87] “Q Or, Linnie Carl, I’m sorry.

Would that be the indication?

“A Yes, sir.

“Q Can you tell from looking at the picture which is

Plaintiff's Exhibit Three what the particular offense might

have been that the Defendant Linnie Carl McCollan was

arrested for?

A No, sir.

“Q Further examining Plaintiff's Exhibit Number Four,

which is microfilm copies of the same photograph, as is

Exhibit Three, plus a fingerprint card, can you tell by

examination of the copy of that card when those prints were

made?

“A Yes, These were made on the 9th and 11th of ’72.

“Q Would that have been prior to the warrant that was

issued on the 5th of October of ’72?

“A Yes.

“Q Does that or does not that indicate to you, Sheriff

Baker, that there was a Linnie Carl McCollan that had been

handled by your department earlier than October 5th of

1972?

“A Yes.

“Q Do any of those records in any respect whatsoever

show an alias of Leonard McCollan?

“A No, sir.

“Q Were you or anyone in your department —in your

[88] I. D. section or your department aware that there was

anyone but a Linnie Carl McCollan, that one individual, any

time during the months from September, 1972, until Janu-

ary 2nd of 1973?

“A No, sir.

“Q You were unaware that there were two McCollan

brothers?

“A Yes, sir.

“Q There was no indication on any records from the FBI

or any other source that there might be another McCollan

named Leonard McCollan?

“A No, sir.

“Q The pictures that you have identified as being Linnie

Carl McCollan, are they of this Plaintiff?

“A No, sir.

“Q Let me refer also, Sheriff Baker, to your comment

about checking a rap sheet to see if there might have been

an alias used. Did your department receive, as far as your

records show, any type of rap sheet that would give you

notice that there was another Linnie Carl McCollan any-

where else in the world other than the one that you have

pictured there?

“A No, sir.

“Q You mentioned that the City might have a rap sheet.

Did you know that the City had a rap sheet?

[89] “A No, sir.

“Q Did they have a rap sheet?

“A I didn’t check.

“Q You don’t know today?

“A I don’t know whether they have one or not.

“Q So when you say that your deputies knew that there

was an altered driver’s license, in fact you were referring to

Mr. Porter, were you not?

“A Yes.

“Q Who didn’t work under your control at that time?

“A No, sir. He was in the metro unit.

“Q Who took that driver’s license into evidence?

“A Mr. Porter.

“Q Did he take it in as an authority as your deputy?

“A Yes, working in metro.

“Q Did you know that that driver’s license was in evi-

dence anywhere?

“A No, sir. This was all taken into evidence back before

I was Sheriff.

“Q When was the first time you ever saw that driver’s

license that you’re holding there and refer to it, please, by

the Plaintiff's Exhibit on the back?

“A This exhibit, Number Five, the first time I seen this

driver’s license was on January 2nd, when we released Mr.

McCollan.

[90] “Q Of 1973? °

“A 1973.

“Q Had you no knowledge of that license before that

time?

“A No, sir.

“Q Looking at the picture on that license, do you find

that picture to be of this Plaintiff?

“A No, sir.

“Q Do you find the name to be Linnie Carl McCollan or

Linnie C. McCollan?

“A Linnie C.

“Q And the birthday of 12/8/48?

“A Yes, sir.

“Q And a Texas DL number thereon?

“A “Yes, sir?

“Q Have you or any of your deputies done subsequent

investigation to see whether or not that birthdate in that

driver’s license number is the one commonly used by this

Plaintiff?

“A Yes, sir, it is.

“Q Did you have a conversation with this Plaintiff about

that fact on this day of the 2nd of January, 1972?

“A Yes, sir.

“Q ’73, I’m sorry.

“A "73.

[91] “Q Did he acknowledge that to be his name and

license number and birth date that he used on his driver’s

license?

“A Yes, sir. He said that this was his driver’s license,

date of birth, with the exception of the picture.

“Q Did he make any comment to you at that time about

that being his brother pictured on the license?

“A Yes. He said that was his brother’s picture on the

license and that he was using it — using his name again.

“Q Using his name again?

“A Yes.

“Q Did he indicate how the brother had secured that

particular driver’s license?

“A No, sir.

“Q Referring back to your answer concerning the photo-

graphs and fingerprints that may or may not have been

made of this Plaintiff when he was brought into your jail,

do you know now, today, Sheriff Baker, whether or not

there were any photographs made of this Plaintiff when he

was arrested in December of ’72?

“A No, sir.

“Q Do you know whether there were any fingerprints

made at that time or not?

“A No, sir.

“Q If there had been, what were your orders in that

regard?

[95] “Q Do you hold any positions in the State presently

that are appointed by the Governor that has to do with

jail standards and conditions?

“A Yes, sir. I’m on the Board of — Commission of Jail

Standards. -

“Q And when were you placed on that Board?

“A October the second of this year.

“Q Referring back to the time of the facts of this case,

did you have personal contact or personal knowledge of

any of these facts until January 2nd of 1973?

“A Nosir.

“Q Did anyone prior to that time take any action under

your direct control or at your direct order to do or not to

do anything as to this particular Defendant?

“A No, sir.

MR. KNORPP: I'll pass the witness to Mr. SoRelle.

CROSS-EXAMINATION

BY MR. SoRELLE:

“Q Do you know where you were between the dates of

December 30th, 1972, and January 2nd, 1973?

“A No, sir, not off hand. I was either at home or at my

father-in-law’s, which would be out in the country.

“Q Were you keeping regular office hours during that

period?

“A No, sir.

[96] “Q Did you have communication with your office?

“A Yes. By telephone and radio. ;

“Q If there had been a problem in the jail, would some-

one have communicated this to you?

“A Yes.

“Q Had you, back at that time, notwithstanding your

other items we have discussed, set up procedures for receiv-

ing information when a problem, something out of the ordi-

nary occurred?

“A Yes.

“Q How did you receive communication from the jail?

“A We received it from supervisors up there, as well as

any problems that we were having there, the inmates can

write a letter and it comes directly to me there in the sheriff's

office every morning — comes up to my desk every morning.

“Q Was this procedure in effect at that time?

“A Yes.

“Q Did anyone during this period of December 30th to

January 2nd notify you of the presence of Linnie McCollan

in your jail.

“A No, sir.

“Q Did anyone notify you of any complaint or problem

about his presence there, then or at any time afterwards?

“A No, sir.

[97] “Q When was the first time?

“A The first time I was notified was on January 2nd.

“Q Right. And as soon as someone told you about the

fact that there was a question about this man being in jail,

what was your initial action?

“A As soon as the problem was brought to my attention,

well, I told them to go get him and bring him down out of

the jail and down to the captain’s office and we would talk

to him there.

“Q And who was this that came in to talk to you at that

time?

“A Ed Porter.

“Q All right. And this is the man that you have discussed

here earlier with the metro unit?

“A Yes.

“Q And did he hand you something or give you anything

that caused you to support his statement that this was not

the man that he had previously arrested?

“A Yes. He showed me this driver’s license.

THE PLAINTIFF: That’s a lie.

“Q (By Mr. SoRelle) What did you do then with respect

to — was anyone else involved in any of these conversations

that you had?

“A Yes. After talking with Mr. Porter we did bring Mr.

McCollan dewn to the captain’s office and talked to him

[98] there in the captain’s office with Kenneth Chambers

and Mr. Porter. And Mr. Chambers, of course, is no longer

with me. ;

“Q Now, I think you — and you made the determination

on your own that he would be released; is that correct?

“A Yes, sir.

“Q What did you do then?

“A We released him to come back to Dallas.

“Q Did you have someone to provide transportation?

“A Yes. The bondsman, Mr. Carter,— Johnny Carter,

advised us that he would provide him with transportation

back to Dallas?

“Q Is this the same bondsman that caused the warrant to

be issued?

“A Yes.

“Q There was a discussion earlier concerning delays in

time when someone has mug shots taken and comparison

by I. D. at some future time. As a matter of fact, you have

to develop these photographs, do you not?

“A Yes.

“Q Is there any lag time just from the standpoint of

developing? -

“A Yes. It depends on — back at that time it took longer

because we had an old processer and developing took longer.

They would take the pictures and take them down and de-

velop them and it would take some day or two sometimes,

[99] depending on how many pictures we had.

“Q Now, did you offer to assist the Plaintiff in any other

way at the time he was released?

“A Yes. He told me that when he was arrested here in

Dallas that he was working at that time for a messenger

service or something of this type and that he had lost his

job by being arrested, and I advised him that when he got

back to Dallas that if he would contact his supervisor and

have his supervisor call me that I would verify that he

wasn’t the Linnie McCollan that we were looking for. And

in about two days —I forget, it was two or three days, any-

way, his supervisor did call me and I did verify that he was

in our jail and that he wasn’t the one we wanted.

“Q You verified that he should not use this arrest as a

basis for —

“A Right. That he wasn’t the one.

“Q All right.. Sheriff, you weren’t I take it, pleased with

the fact that there was some confusion about the identity

of this man?

“A No, sir.

;

“Q But from the standpoint you were asked about before

of the deputies, certainly you do not —did not condone

anyone arresting the wrong man?

“A No, sir.

“Q And at this time, was it your belief that there [104]

know what you were doing, is that a fair statement of what

you sajd yesterday?

“A I think I said that I was new and a lot of this hap-

pended before that I became Sheriff, and I wasn’t aware of

all of it, I think that would be a more correct statement

on it.

“Q Well, then, you’re not trying to tell the jury you’re

not qualified to be Sheriff?

“A No.

“Q Okay. Now, Sheriff, I believe you testified that this

Mr. Porter, I believe his name is Ed Porter, is that right?

“A Yes.

‘

“Q Was working as a metro squad officer, is that right?

“A That’s right.

“Q Well, now, was that his only job?

“A Yes. He worked metro and the way I work a metro

agent, in metro he works there, then he has his duties in

I. D. He works back and forth from I. D. to metro.

“Q And he’s the one who figured out they had the wrong

one in jail?

“A Yes.

“Q Well, now, in your deposition, you testified thusly on

page thirteen, what had this deputy done that [105] made

him believe that he had the wrong person in jail and you

answered that Mr. Porter at the time was working in I. D.

He works kind of relief in I. D., I. D. as well as the jail. He

works the dispatcher’s stand but at the time he was working

in I. D., when the process of the papers came through I. D.,

this is when he had Mr. McCollan but it was the wrong one

in checking these records, their records.

And I asked this question, what papers did he process

through and you answered the normal papers that process

through our jail which would be the warrants and our jail

records. He also handled the mug and printing up in the jail

and goes up into the jail and takes money and fingerprinting

and jail work and takes it down to I. D. to check previous

records, or whatever.

“A At the time I gave that deposition that was exactly

what I thought Ed was doing at that time. But upon getting

back to the office and along about this time Mr. McCollan

was arrested and brought down is when a lot of changes

were being made in my personnel and he was working over

in metro and I. D. also. In other words, he was working two

or three jobs there.

“Q So he was working in I. D., too?

“A Yes.

“Q At the time Mr. McCollan was in jail?

“A Yes.

[106] “Q And he’s also the same one that picked up his

driver’s license?

“A That’s right.

“Q Well, now you didn’t change your deposition that you

filed with the Court, did you?

“A No.

“Q All you’re doing today then, as I understand, you're

just adding —

MR. SoRELLE: Your Honor, I’m going to object to the

continual questions concerning the changing of depositions

because it is prejudicial in that it indicates he could have

or should have when in fact that is not correct.

THE COURT: Well, I will overrule the objection, how-

ever, let’s not argue with the witness except finding out what

he is testifying to.

MR. LARSON: I will withdraw the question. It was ar-

gumentative, Judge.

THE COURT: All right.

“Q All right, Sheriff, one thing I want to be clear about

is up in the jail or somewhere in your department you keep a

file on everybody that you have arrested, isn’t that right?

“A InI.D.

“Q And you call that a folder?

[107] “A Yes.

“Q Well, tell the jury all the things which would have

been in the folder for Leonard McCollan at the time he was

arrested, say, in October.

“A Okay. In October all we would have in our folder

about him being arrested, talking about Leonard McCollan,

by him being arrested at the City, he was arrested as Linnie

McCollan and he was transferred as that. And so all we

would have in our folder was the transfer, a P-3 on where he

was arrested over there and they make a copy of that

P-3 and bring it over to us and then that goes in our file

as the court files come down and as he goes through the jail.

“Q What’s a P-3?

“A It’s the original piece of paper that you book someone

in on,

“Q What information is contained on that?

“A Okay. The information that is contained on it is the

man’s name, his date of birth, his address, his next of kin

and pertinent information about him and the small details

of the arrest, the arrest warrant whether it was an on sight

arrest or what type of arrest it was.

“Q Do you have that P-3 here?

“A I don’t believe we do. It should be on the microfilm.

MR. LARSON: Which one is it?

[108] MR. SoRELLE: Your Honor, may we have the

deposition?

THE COURT: Yes.

MR. SoRELLE: I'm sorry, Sheriff Tate’s deposition.

MR. LARSON: While he is looking for that, Sheriff, I will

ask you a few other questions.

“Q The Sheriff’s Office had already taken a picture of this

man on September 11, 1972?

THE COURT: Which man are we talking about, Leonard

or Linnie?

MR. LARSON: Leonard McCollan.

“A Yes.

“Q That would have been in the folder too, wouldn’t it,

this photograph?

“A Right, but this folder that he is taking there is Linnie

C. McCollan.

“Q It would have been in the Linnie C. McCollan —

“A It would be —

THE COURT: One at a time. Let him finish. Sheriff,

you let him finish his question and Mr. Larson, let him

finish his answer. Don’t talk at the same time.

MR. LARSON: I’m sorry, Your Honor.

THE WITNESS: I apologize.

[109] “Q All right. So we make it perfectly clear, this

photograph would have been in the file named Linnie McCol-

lan in your office in September and October of 1972, is that

right?

“A September, yes, Linnie Carl McCollan.

“Q And this same photograph would have stayed in that

folder all the way up from that time to the present time?

“A Right.

“Q And for the record, I have been referring to Plaintiff’s

Exhibit Number Three, is that right?

“A Yes, sir.

“Q So, Sheriff, it would have been a rather simple thing

to do if someone said that he wasn’t the person that was

wanted, it would have been a simple thing to pull the file

and pull out the picture of the person in the file and see

if it matched up with the real person, isn’t that right?

“A As soon as it’s processed and went all through it would

have been.

“Q The very instant he came to jail it would have been

simple, too, wouldn’t it?

“A They would go through the normal process.

“Q Well —

“A It wouldn’t be just a matter of him saying I have

got the wrong man and that’s it. In other words, he would

have to be processed on through to see.

[110] “Q It’s not important for you in your county to

find out if you have got the right person or not?

“A Yes, that’s the reason that it would be necessary

for you to take the time and go through the process to make

sure who you were talking to in jail if there was some doubt.

“Q Sheriff, it took you four days to figure out you had

the wrong man.

“A There was four days elapsed, there, yes.

“Q It would have been a simple thing to just open up the

file and look at the picture and you would have known in-

stantaneously that you had the wrong person, right?

“A No, the picture alone wouldn’t have done it.

“Q Why not?

“A You need to go through all of your file and you need

to know who you were talking to, who you had in jail.

“Q Well, now, you’re not telling the jury that Plaintiff's

Exhibit Three looks like the man sitting over here, are you?

“A No.

“Q Well, what is it? I don’t understand it. What is it

that would have been so hard for you to have pulled out

that photograph and looked at this man and said it wasn’t

the same person? ‘

“A Okay. What we had to do or would have had to have

done would be to pull the folder out and make sure by

[111] fingerprints and everything that we had the correct

picture in the file.

“Q Well, you had fingerprints, too, didn’t you?

“A Yes, so it would be necessary for us to have, you

know, both of them. Nantes

“Q Well, if you had pulled the file out and foundt-the _

picture in there, you would have been kind of worried, you

would have done some further checking immediately, isn’t

that right?

“A Yes, sir.

“Q But nobody did that in your jail, isn’t that right,

until four days later?

“A That’s right.

“Q All right. Now, Sheriff, I believe your lawyers have

found the forms.

“A Yes, sir.

“Q Is that what would have been in his folder?

“A Yes, sir, this is the P-3 and then here’s your jail card.

“Q All right. Now, what you referred to as a P-3 and

the things that would have been in the folder in October

1972, that’s in front of you now?

“A Yes, sir.

‘

“Q And that has been marked as Plaintiff’s Exhibit what

number?

[112] “Q Number Nine.

MR. LARSON: We offer Plaintiff's Exhibit Number

Nine.

MR. SoRELLE: No objection.

MR. KNORPP: No objection.

THE COURT: It’s admitted.

“Q All right. Sheriff, we have established that there would

be Plaintiff's Exhibit Number Nine and Plaintiff’s Exhibit

Number Three in your folder?

“A Yes, sir.

“Q And then you said there is some fingerprints, right?

“A Yes, sir.

“Q And that would have been in the file, too?

“A Yes, sir.

“Q Do you have those?

“A Yeah, I think this would be another one of the

exhibits.

“Q That would have been Plaintiff's Exhibit Number

Four?

“A Yes, sir.

“Q So would anything else be in that file?

“A That would be all.

“Q Plaintiff's Exhibit Four, Plaintiff's Exhibit Nine and

Plaintiff's Exhibit Three would have been in the file, is that

right?

[113] “A Yes, sir.

“Q All right. Now, Sheriff, would you help me refresh

my memory as to the sequence of events? You have a photo-

graph dated September 11, 1972, is that right?

“A That’s right.

“Q And that has been marked as Plaintiff’s Exhibit

what number?

“A Number Three.

“Q All right. Now, that photograph was made prior to

the one that’s down at the Amarillo City Police Department,

is that right?

“A Yes.

“Q Now, that photograph was made when that man, Lin-

nie McCollan, who we know to be Leonard McCollan, was

placed in your jail?

“A That’s right.

“Q Now, the fingerprints, were any fingerprints taken

September 11th?

“A Yes.

“Q Are those the ones that you have up there in front

of you?

“A Yes, Plaintiff’s Exhibit Number Four.

“Q All right. Now, on September 11th that would have

been also at the time when you would have taken the finger-

prints or the FBI and Department of Public Safety, is that

[114] right?

“A If he was arrested, if he was put in the Potter County

Jail. I think once he was transferred over on the shoplifting

charge and arrested by the City of Amarillo. This is a copy

of the prints.

“Q Well, now, somebody sent down to the Department of

Public Safety for a rap sheet at some time or another?

“A That would be the City of Amarillo.

“Q What happened to the case that he was charged with

in September, 1972, was he bonded out or what?

“A I don’t know to my knowledge on this one.

“Q How do you know that’s a transfer from the City?

“A On it there is no other paper work on it in my file

and you wind up over here on this with just information

only, you know, that you transferred from the City on it.

“Q What other information would be in it if it wasn’t a

transfer?

“A If it wasn’t a transfer you would have your complete

offense reports and everything.

“Q All right. Sheriff, at page thirty-seven of your deposi-

tion you testified thusly, when Leonard McCollan was ar-

rested in Potter County and taken to your jail, he was fin-

gerprinted and the fingerprint card was sent to the Depart-

ment of Public Safety. You answered right. Question:

Ordinarily they would classify them and send you back a

rap [115] sheet. Answer: Yes. And the orders are very high.

The department had gotten back a rap sheet. Answer: Yes.

On Leonard McCollan it would have indicated he was using

the wrong name, isn’t that true. Answer: Yes. Question, so

your department in all likelihood knew at the time that

Linnie McCollan was arrested in Dallas County that Linnie

McCollan was using an alias, giving you the wrong name,

isn’t that true? Answer: Yes, my I. D. people. Question:

Should have known. Answer: Yes.

Is that your testimony?

“A Yes, it was at the time.

“Q And now you're changing it?

“A No, sir. What I am saying is when we got back —

yes, when we got back — yes, when we got back the rap

sheet was in the file because it was a transfer. It should have

been in the file. If it had been noted on there if it had

been a sheriff’s office arrest, but it was a transfer.

“Q Well, is the deposition in error?

“A No, sir. You asked me if he was arrested in Potter

County in the deposition. If he was arrested in Potter

County we should have a rap sheet, sent off for the rap

sheet, but if it’s the City of Amarillo, as I explained yes-

terday we only get the rap sheet, the one sent to us for

the Dallas District Attorney or County Attorney, wherever

the case is.

[116A]“Q Well, now, Sheriff, you testified yesterday, I

believe, that this driver’s license was taken up, this

driver’s license which we have entered into evidence

marked Plaintiff's Exhibit Number Five?

“A Yes, sir.

“Q It was taken because the police officer took it up and

determined that it was an illegally obtained driver’s license,

is that right?

“A Yes, sir.

“Q Well, now, Sheriff, I sent you some written inter-

rogatories, do you know what I am talking about?

“A Yes, sir.

“Q And do you remember the answer to one of those

questions I sent you? I asked you, have you, your attorneys,

or any other person employed by you or your attorneys,

inquired or have possession of the Texas driver’s license

which exhibits the Plaintiff’s name, but does not contain the

Plaintiff’s photograph. You answered that one, yes. Then

the question I asked you was if the answer to the previous

question was affirmative, state the following: (a) the date

the license was acquired and the name and address of the

person who acquired the license. And you answered that

the license in our possession acquired the seventh of Octo-

ber by Ed Porter, Potter County, Amarillo, Texas.

Paragraph (b) I asked you to name the present address

from which the license [117A] was acquired and you an-

swered that the license was acquired Leonard McCollan, also

known as Linnie C. McCollan who resided at 1940 Northwest

Fourteenth, Amarillo, Texas. Defendant does not know the

present address of Leonard McCollan. And then I asked you

the reason why possession of it has been retained and you

answered that the license was retained to establish the iden-

tity of a man who was charged with the sale of drugs in

Amarillo, Texas.

Are those your answers?

“A Yes, sir.

“Q You signed that on April 8, 1975, under oath, is that

right?

“A Yes, sir.

“Q Well, which is it? What you said yesterday or what

you said here? Or is it both?

“A I don’t understand your question.

“Q Well, yesterday you said it was taken up for another

reason and today you say it was taken up to establish the

identity in this interrogatory.

“A It was taken up for both. It is an altered driver’s

license to establish the identity of the man.

“Q Why didn’t you tell me all of it when I asked you

this question here in writing?

“A I don’t know.

“Q Sheriff, now yesterday I believe you testified {118A |

that Plaintiff’s Exhibit Number Seven was the warrant that

your deputies apparently carried down to Dallas, is that

right?

“A Yes, sir.

“Q But it shows an execution on an unascertainable date

because the names, I mean the dates have been marked out,

is that right?

“A The dates have been marked out, yes, marked over.

“Q You didn’t execute that, somebody on your behalf

did?

“A Yes, sir.

“Q What’s that man’s name?

“A Price Adair.

MR. LARSON: Would you mark this as Plaintiff’s Ex-

hibit Number Ten?

(Plaintiff's Exhibit Number

Ten marked for identification. )

MR. LARSON: Would you gentlemen like to inspect this

before I show it to him?

MR. KNORPP: No objection.

MR. LARSON: Your Honor, this is a certified copy of an

indictment out of the District Court of Amarillo, Texas,

in Cause No. 15663-B, and it’s styled the State of Texas Vs.

Leonard McCollan, Jr. also known as Linnie McCollan. These

are certified [116B] copies and at this time I would offer

them into evidence.

THE COURT: What’s the Exhibit number?

MR. LARSON: Ten, Your Honor.

THE COURT: It’s admitted.

“Q All right, Sheriff, this warrant shows that it was

executed on the 17th of January, 1973, at 2:55 o’clock

p. m,.?

“A Yes, sir.

“Q Pardon me, it came into the hand of the Sheriff

on that date and it was executed on the twenty-first?

“A Right.

“Q Well, now, yesterday you testified that this warrant

was also the one that you all served? —

“A Yes, sir, this is the one that was in our files, this

one here.

“Q Refer to that by exhibit number.

“A Number Seven, sir. This was the one that was in

our file as the warrant for Leonard to be arrested on what

we had.

“Q Okay. Well, you have another warrant there, was

that executed on the same day or maybe the same days,

explain to me why there is a difference.

eT eee eae

“A Okay.

“Q I am referring now to the warrant in part of [117B]

Plaintiff's Exhibit Ten.

“A This warrant in Plaintiff’s Exhibit Ten is the original

warrant for Leonard McCollan. This one is a bond forfeiture

and bond withdrawal warrant in Plaintiff’s Exhibit Number

Seven. When he turned himself in, this came into the sheriff’s

office at that time, then this warrant was returned back to

the Justice of the Peace where it was issued as him being

arrested. This warrant was returned back to the district

clerk to show that he was arrested.

“Q All right. Now this warrant that you said was the one

that you all carried to Dallas marked Plaintiff’s xhibit

Number Seven, it’s been scratched out and they have ’73

and ’74 on there, and we don’t know which is which, when

it was filled out, but apparently somebody might have tried

to fill it out in 1974, is that right?

“A This is the warrant, the one that we brought to Dallas

to pick up Linnie. Okay, he was never taken before the

Justice of the Peace. And what evidently the deputy does,

I don’t know to my knowledge, evidently he had filled it out

partially but until he had taken him back before the magis-

trate where the warrant was issued he wouldn’t have com-

pleted filing it and after Linnie was released, then it was

put back into the file and not returned to that file until

Leonard McCollan was arrested,

“Q Do you have any idea why he slipped and put 1974

[118B] on there?

“A Leonard was arrested in 1974 so he didn’t —

“Q Well, wait a minute, this other warrant says he was

arrested in 1973.

“A Okay, this warrant then is going to be the one that

Leonard was arrested on the first time that he was brought

into the office.

THE COURT: In other words, you say this warrant is the

one —

THE WITNESS: This Exhibit Ten is going to be the one

that was issued for him and he was brought into the office and

released on bond.

“Q Sheriff, do you have any figures as to how many people

were in your jail when Linnie McCollan, the Plaintiff in

this case, was in your jail?

“A Approximately a hundred and fifty.

“Q And how much is your jail designed to hold?

“A Eighty-eight.

“Q You were pretty overcrowded, weren’t you?

“A Yes, sir.

“Q Why is it that the bondsman — the bondsman is the

one that paid Linnie’s way back to Dallas, not you?

“A That’s just an agreement with the bondsman. He said

that he would pay it back to Dallas.

“Q What kind of an agreement?

[133] as Defendant’s Exhibit Number Three, the third

page and the fourth page are certified copies of Plaintiff's

Exhibit Number Two, are they not?

“A Yes, sir.

“Q Can you tell me from the certified copy whether this

bond was transferred on to a district court case from the

numbers thereon?

“A Yes, sir. On top of the warrant here it shows 15663-B.

“Q Is that the number that you also found on the indict-

ment that’s contained in this exhibit?

“A Yes, sir.

“Q Is it fair to say in examining those documents, Sheriff,

that the bond which was originally issued in the name of

Linnie Carl McCollan and signed by Linnie Carl McCollan

was used as the bond for the Justice of the Peace case, and

then later it was transferred on to the indictment for Linnie

Carl McCollan A/K/A Leonard McCollan?

“A Yes, sir.

“Q Sheriff, earlier, a question was put to you about no one

checking the records in the I. D. Section until four days

later. Why was there a delay in the checking of the I. D.

files?

“A There was no one in I. D. during that time.

“Q Was it closed over the holiday period? «

[136] Court or were they made up by your office?

“A They were made up by the J. P. Court.

MR. KNORPP: I will pass the witness.

RE-DIRECT EXAMINATION

BY MR. LARSON:

“Q Sheriff, when I took your deposition on January the

twenty-fifth or twenty-fourth of this year, I believe, you had

all the same records that you will have here in Court today,

is that right?

“A Yes, sir.

“Q And you had access to all of the same records back

in January that you do now in November, is that right?

“A Restate it, you lost me.

“Q There is not any more records, you haven’t discovered

any more records between now, this date, and last January,

have you?

“A Not after the deposition was taken.

“Q So at the deposition you had all of the same records

that you have before you right here in Court, is that right?

“A Yes, sir, these records that I have here is what I had

in my files.

“Q All right. So when you gave your deposition, you were

talking about the same records that you’re talking about here

in Court today, is that right?

[137] “A Yes, sir.

“Q And you were referring to and had access to during

your deposition all of these records that are out in front

of you, isn’t that true?

“A Yes, sir, I had these in front of me.

“Q Sheriff, will you agree with me that the name Joe

Smith is a pretty common name?

“A Yes, sir.

“Q It’s real common, isn’t it?

“A Yes, sir.

“Q All right. Well, now, if a J. P. out in Potter County

issued a warrant for a man named Joe Smith, that doesn’t

give you the right to arrest every Joe Smith in the United

States, does it?

THE COURT: Counsel, don’t argue the case. I am going

to give you time to argue. This is arguing. There is no use

to argue with the witness. I don’t know whether you all are

trying to get the last word with the witness or not, but let’s

get on with this case.

MR. LARSON: Well, I am just responding, Your Honor,

to something that he said on Direct and I apologize.

THE COURT: That’s what I am getting at. Both sides

seem to want to get the last word. Now, we have [138]

milked this subject dry as far as the Sheriff is concerned. I

will let all of you argue the case to the jury.

“Q Does the Constitution of the United States take a

vacation over the holidays in Potter County?

MR. KNORPP: Objection, Your Honor.

THE COURT: I sustain the objection. That’s argumenta-

tive, Counsel. There is no use to ask the Sheriff that, it’s

a question of law, and I will instruct the jury as to the law.

MR. LARSON: All right. I will withdraw any further

questions, Your Honor.

THE COURT: All right. Let’s take a fifteen minute recess,

ladies and gentlemen.

(Recess. )

MR. LARSON: Your Honor, I will call as my next wit-

ness, Mr. Tate.

—

GARY TATE,

called as a witness in behalf of the Plaintiff, being duly

sworn, testified as follows:

DIRECT EXAMINATION

BY MR. LARSON:

“Q Would you state your name for the jury, please, sir?

“A Gary R. Tate.

“Q And Mr. Tate, how are you presently employed?

(139] “A I’m a patrolman with the Dallas Police De-

partment.

“Q How were you employed in December, 1972?

“A With the Dallas Police Department.

“Q So you have been a policeman for how long?

“A Five and a half years.

“Q What area or section of the City were you assigned

to in December, December 26th, 1972?

“A The southeast district.

“Q All right, on that day did you have an occasion to

come into contact with the Plaintiff in this lawsuit, Linnie

McCollan?

“A Yes, sir.

“Q Would you tell us where and under what circum-

«stances that occurred?

“A At the intersection of Scyene Road and Second Ave-

nue. I pulled in behind Mr. McCollan who was parked at the

red light facing north. The intersection light was red but

the lights for the southbound lane turned green for the

drivers northbound and as traffic started moving south in the

southbound lane, Mr. McCollan proceeded through the red

light. And at that time I proceeded through behind him and

stopped him.

“Q What kind of a vehicle was Mr. McCollan driving?

“A He was driving a station wagon, I can’t tell you the

make or model right now.

1140] “Q Was there ‘anything particularly noticeable about

the wagon? Did it have an insignia or anything on it?

“A It was a security service car.

“Q All right. I assume from what you have just testified

to you were stopping Mr. McCollan because he ran a red

light, is that right?

“A Yes, sir.

“Q How did you effectuate the stop?

“A I turned on my red lights on my marked vehicle,

walked up to the car and told Mr. McCollan that I had

stopped him for running a red light and asked him for his

driver’s license.

“Q Did he immediately stop or did he delay?

“A Yes, sir, he immediately stopped.

“Q Did he give you his driver’s license?

“A Yes, sir, he did.

“Q That’s where you learned his name? Is that right?

“A Yes, sir.

- 89

“Q What did you do then?

“A I went back to my vehicle and as a routine matter

I ran a check on the license plates and on Mr. McCollan.

“Q All right. Now, the jury can’t hear you and I can

hardly hear you, would you please tell the jury what you

heard over the radio or what did you learn as the result of

the radio call?

[141] “A Sir?

“Q As the result of your radio call, what did you learn?

“A That there was a warrant in effect for Mr. McCollan

at the time.

“Q All right. And what did you do in response to that?

“A T informed Mr. McCollan that they did have a warrant

out for him that had been confirmed and that I would have

to take him to jail.

“Q All right. Well, now, I assume you did that after you

got off of your radio call, is that right?

“A Yes, sir.

“Q All right. When you confronted the Plaintiff with the

information about the warrant, what, if anything, did he

say?

“A He told me it wasn’t him.

“Q Anything else?

“A Well, the information I received was that the warrant

was out of Potter County, Amarillo, and I asked Mr. McCol-

lan if he had been in Amarillo and he said that he had lived

there at one time. I asked him again if he had been there in

the last year and he said, yes, he had.

“Q All right. Then, you had him get out of your car or

get out of his car?

[142] “A I had him get out of his car and had him seated

in mine.

“Q Did you handcuff him?

“A I don’t remember.

“Q Where did you take him then?

“A I took him t the southeast substation on Bexar Street.

“Q That has a lockup facility or jail, is that right?

“A Yes, sir.

“Q Did you place him in that facility?

“A Yes, sir, I did,

“Q All right. Now, did you do anything else to verify the

fact of whether or not there was a warrant for this man?

“A Yes, sir, I had my supervisor, who is the desk sergeant

at southeast, call Amarillo.

“Q You didn’t make the call but were you present when

it was done?

“A Yes, sir.

“Q All right. So as a result of that phone call you left

him in jail, I take it, is that right?

“A Yes, sir.

MR. LARSON: Your witness.

CROSS-EXAMINATION

BY MR. KNORPP:

[143/ “Q Mr. Tate, what information would you ordinarily

put in to request a check on somebody to see whether they

are wanted or not when you are out in the field?

“A It would be the last name, the first name, the race, the

sex and the birth date.

“Q All right. In this particular case did you secure the

Plaintiff’s birth date from his driver’s license?

“A Yes, sir.

“Q And did you have occasion to fill out a report by

hand when you brought this subject in?

“A Yes, sir. You mean the arrest sheet?

“Q Yes, sir. Let me hand you Defendant's Exhibit Number

Four which is a photocopy of the microfilm, can you recog-

nize that?

“A Yes, sir.

“Q Does this appear to be in your own handwriting?

“A Yes, sir.

“Q That is the arrest sheet you filed in this particular

case?

“A Yes, sir.

“Q Does it indicate anywhere on there the Texas Driver’s

License number, the number of the license that was dis-

played by the Plaintiff?

“A Yes, sir, it does.

“Q What is that driver’s license number?

[144] “A Excuse me, I am sorry, sir. I was looking at the

wrong blank. No, sir, it does not.

“Q Do you book any property under the Texas Driver's

License number if they have one?

“A There’s the number. I might have put it in the wrong

blank. That looks like it. T have got it marked Texas.

“Q Would that be the driver’s license number?

“A Yes, sir, it appears to be.

MR. KNORPP: I will tender Defendant’s Exhibit Number

Four.

MR. LARSON: No objection.

THE COURT: It’s admitted.

“Q Do you ever use a driver’s license number when you

are checking or do you just generally use the name and

date of birth and other characteristics that you described?

“A If we come back with a “hit” and the information on

the computer has a license number then I will use it.

“Q I see, But on Mr. McCollan’s case there was no

license number listed?

MR. LARSON: Pass the witness, Your Honor.

MR. SoRELLE: I have no questions, Your Honor,

THE COURT: Is that all?

MR. LARSON: Just a few more questions.

RE-DIRECT EXAMINATION

[145] BY MR. LARSON:

“Q Did the Plaintiff tell you more than once that he

wasn’t the person that was wanted?

“A Yes, sir. Several times.

“Q All right. Is it ordinary procedure for you to make

this phone call after someone is arrested on an out of county

warrant?

“A Well, sir, yes. On all county warrants the normal pro-

cedure is to make the phone call to verify it with the county

that has the warrant.

“Q All right. Now, this information you have here on your

arrest sheet has been entered into evidence on warrant num-

ber 8762 from Judge Roberts, and I can’t read your writing.

“A Court.

“Q Oh, Judge Roberts’ court?

“A Yes, sir.

“Q Per Chief Deputy McCarty.

“A Yes.

“Q Was this information that you got from someone or

how did you get that information?

“A That information on the warrant number and the court

and the deputy chief came through my supervisor who made

the phone call.

MR. LARSON: That’s all. Thank you.

[146] MR. KNORPP: That’s all.

MR. SoRELLE: I have no questions.

THE COURT: You're excused as a witness, Mr. Tate.

Call your next witness. |

MR. LARSON: I will call the Plaintiff, Your Honor,

Linnie McCollan.

LINNIE CARL McCOLLAN,

the Plaintiff, being duly sworn, testified as follows:

DIRECT EXAMINATION

BY MR. LARSON:

“Q State your name to the jury, please.

“A Linnie Carl McCollan.

“Q Mr. McCollan, you’re going to have to speak up or

put that microphone up so we can hear you.

“A Linnie Carl McCollan.

“Q When were you born?

“A December 8, 1949.

“Q Do you have any brothers and sisters?

“A Yes, sir.

“Q How many?

“A Ihave one brother and two more sisters.

“Q What’s your brother’s name?

“A Leonard McCollan.

“Q And is he older or younger than you?

“A He’s the oldest.

[147] “Q All right. I’m going to show you what has been

previously entered into evidence as Plaintiff’s Exhibit Num-

ber Three and Plaintiff's Exhibit Number Two and I will

ask you to tell us whether or not that’s your brother?

“A Yes, sir.

“Q About how many years older is he than you?

“A Six.

“Q Do you know his birth date?

“A No, sir, I don’t.

“Q Were you raised in Dallas or where?

“A I was raised in West Texas.

“Q Well, give us the towns, if you would, or cities.

“A I was born in Amarillo, Texas, and I was raised in

Lubbock, Texas.

“Q Now, there has been entered into evidence previously

here a driver’s license that has been previously marked as

Plaintiff’s Exhibit Number Five, do you see what I am talking

about?

“A Yes, sir.

“Q Now, that driver’s license has your name on it, is that

right?

“A Yes, sir.

“Q And whose picture is that?

“A That’s my brother’s picture.

“Q Did you in any way help him get that driver’s [148]

license?

“A No, no, I know nothing about it at all.

“Q You didn’t give him that driver’s license?

“A No.

“Q Did you help him get it?

“A No, sir.

“Q Do you have any idea how he got that?

“A No, I don’t.

“Q All right. Now, do you remember December 26th, 1972?

“A Yes, sir.

“Q All right, who were you working for at that time?

“A Purolator Service as a mail messenger.

“Q What kind of work was that?

“A It’s affiliated with Armored Motor Company where

you pick up and deliver money and different important

papers and stuff like that.

“Q You just heard the officer testify here, Officer Tate, is

that right?

“A Yes, sir.

“Q About the traffic ticket?

“A Yes, sir.

“Q Do you remember that?

“A Yes, sir.

“Q And were you on duty at the time this traffic [149]

ticket was given you?

“A Yes, sir. I was working.

“Q All right. What is your rate of pay and the hours that

you were working?

“A I was making two fifty an hour and ‘I was working

straight time, ten hours a day, I believe, forty five hours

a week, I believe,

“Q All right. Now, this was a Tuesday that you were

arrested on, is that right?

“A Uh huh.

“Q Would you have worked, had this not happened the

rest of that week?

“A Yes, sir.

“Q Do you work on Saturdays?

“A Yeah, uh huh.

“Q How many hours did you usually work on Saturdays?

“A Ten, I believe.

“Q And would you have worked the following week?

“A Yes, sir.

“Q What time — after you got out of jail in Potter County,

when did you get to go back to work?

“A I don’t — it was the next week, I believe.

“Q So, in other words, you missed almost two weeks of

work?

“A Yes, sir.

[150] “Q As a result of the arrest and incarceration in

Potter County, is that right?

“A Yes, sir.

“Q Now, did this officer give you a traffic citation?

“A Yeah, uh huh.

“Q All right. Then what did he do?

“A Well, he told me he was going to write me ticket for

running a red light and I could appear in court on a certain

date and I signed the traffic ticket. And then the call came

back on his radio that I was wanted, you know, in Potter

County, and so he told me he was going to have to take me

to jail. I told him I hadn’t been to Potter County for a year

or two, so, you know, he said it was still his job to, you

know, take me in. I kept telling him I wasn’t the right person.

I didn’t know who they were looking for but I wasn’t the

right man. Finally, he told me to shut up about it and he

was going to take me to jail and I shut up and so he just

did that.

“Q Describe the facility you were put in at first.

“A It was a substation, it was one big — one big cell that

I was placed in. This was just a big day room kind of cell

with bars around it.

“Q How long did you stay there?

“A I stayed there until late that afternoon.

“Q Then where did you go?

[151] “A They transferred me to the downtown City Jail.

“Q All right. Describe the facility that you were in down-

town in the City of Dallas.

“A I was in a small cell, smaller cell than the one that

I was originally in and it had, I think, about three or four

bunks in each one and I was in one of those.

“Q How long did you stay in the jail in the downtown

part of Dallas?

“A Until approximately or until about December thirty

I believe. Aca

“Q What happened on December 30th?

"A Two men from Amarillo came down about five thirty

that morning and woke me up. Well, the City woke me up

and they called me down and out and then they came

and said they came to get me to take me back to Amarillo.

He had a talk with me first.

“Q What did he tell you?

“A He told me that he was with the sheriff’s department

and he came down to take me back to Amarillo and I was

going to go peaceful or either he — if I tried to run or tried

to escape or anything like this, he was going to definitely

shoot me and that was it, you know, he told me he was

going to take me dead or alive back with him. I told him I

wouldn’t give him no trouble because I wasn’t the man that

he was looking for. I kept telling him that over and over [152]

and over. By the time we got to Amarillo, he was convinced

that I wasn’t the one, he knew —

MR. KNORPP: Your Honor, I would have to object to this

voluntary opinion, there is not any evidence on that, that’s

highly objectionable.

THE COURT: I sustain the objection and instruct the

jury not to consider it.

“Q Mr. McCollan, it’s the law that you are not allowed

to give your opinion as to what you felt that someone else

thought so I would appreciate it if you would refrain from

doing that.

“A Yes, sir.

“Q Do you understand?

“A Yes, sir.

“Q All right. Now, you told the deputies from Potter

County you weren’t the one, is that right?

“A It was just one deputy.

“Q Just one?

“A Yes, sir.

“Q All right. Now, did one or two people take you ina

vehicle up there?

“A Two.

“Q What kind of a vehicle was it?

“A It was a sheriff’s department police car, it was a station

wagon with a jail made inside of it.

100

[153] “Q What kind of jail? What did it look like?

“A Well, the front seat was divided off from me. I was

sitting behind and it was a steel rack between us. There was

no way you could get out, you know, from where I was at.

“Q All right. Now, did they have you restrained in any

other way?

“A Yes, sir. They had handcuffs on my hands.

“Q Were your hands in front of you or in back?

“A No, they was in the back and they had a chain running

down to my leg with cuffs on my legs, you know, a chain

on my legs to my arms, to my wrist.

“Q All right. Now, from the time they left Dallas until

they arrived in Amarillo did they ever stop the car?

“A Yes, sir, they stopped.

“Q Where?

“A They stopped to fill up. They stopped at a service

station to fill up. Then they made another stop, I believe

in Wichita Falls to eat.

“Q Did they give you anything to eat?

“A No, sir.

“Q Where did they leave you while they were eating?

“A They parked outside the building right in front of

the window and left me in the car. They ate and they told

me that I would eat when I got to Amarillo.

“Q All right. Now, about what time did you get to [154]

Amarillo?

“A It was about two thirty, approximately three o’clock

in the afternoon.

“ 101

“Q How were you dressed at this time?

“A I just had my work clothes on and I had a little thin

jacket, it wasn’t that cold. It was kind of cold but it wasn’t

that cold, not here.

“Q Did the City of Dallas give you any clothes to wear

while you were in the jail there?

“A No, sir.

“Q So you had the same clothes on you had on when you

were arrested?

“A Yes, sir.

“Q On the 26th, is that right?

“A Yes, sir.

“Q All right. Now, what did they do to you when they

got you to Amarillo? Did they put you in jail or what?

“A Yes, sir, they put me in jail.

“Q Did they take your fingerprints or a photograph of

you?

“A Not then, no.

“Q Did they ever?

“A Just before I got ready to be released they took my

thumb print, I believe.

“Q All right. And how long did you stay in the jail [155]

up there before they let you loose?

“A It was after New Year’s, it was the second, I think,

the second of January.

“Q About what time on the second of January did they

let you loose?

“A It was late in the afternoon, almost night, almost dark.

——————————— [CQ —

102

“Q Where did they take you when they let you loose?

“A They took me to the bondsman, the bondsman took me

to the bus station and bought me a ticket. And then they

took me back over to this cafe and gave me a drink and

then they took me over to this friend girl’s house and dropped

me off.

“Q All right. When did you get on the bus?

“A The next day. The next morning she took me to the

bus station.

“Q Did the Sheriff or of his deputies tell you what hap-

pened when they got you down out of the jail?

“A I told them what happened.

“Q What do you mean? Tell us what happened.

“A Well, I was telling everybody that was in the same

tank with me that I wasn’t the guy, you know, I hadn’t

been in Amarillo. So there was this special fellow there,

he was from Mexico or he was over the cell, he was something

like the cell boss and he said, “yeah, they —

[156] MR. KNORPP: I am going to object to what he said

on the grounds of heresay.

THE COURT: I sustain the objection.

“Q Mr. McCollan, you can’t testify as to what someone

else said. Go on and tell your story.

THE COURT: Well, he can testify to any conversation

he had with the deputy sheriff.

MR. LARSON: I understand, Your Honor, and I was

about to explain that to him.

“Q You can tell what conversations you had with deputy

sheriffs —

103

THE COURT: Suppose you just ask questions, Mr.

Larson, and I will instruct the witness and I will sustain the

objections and overrule them. You just ask questions.

MR. LARSON: All right, Sir.

“Q Go ahead, Mr. McCollan, answer.

“A Well —

THE COURT: What are you asking him?

MR. LARSON: I had asked him what conversations he

had with the deputies and the sheriff just before he was

released.

“A Well, this Johnny Carter came in and this friend girl

came down and brought this man over to look at me. And

after he found out I wasn’t the one, he said, no, he definitely

[157] is not the man And he said, just hold on, you know,

a couple of minutes and I will talk to the sheriff and we wil

have you out of here pretty soon. There was another sheriff

with him, a black man. And they looked me over and went

down. In about two hours — in about an hour or two hours

later they came back up and called me down and out.

“Q Did you go down and visit the sheriff?

“A Yes, sir.

“Q Did you have any discussions with him?

“A Yes, sir.

“Q What did the sheriff tell you?

“A He told me he certainly didn’t want to lock the

wrong man up. I said I had been telling them all the time

I wasn’t the one. So he showed me this driver’s license and

said, that’s the fellow were looking for. Well, I said that’s

my brother, you know. He asked me where he was and I had

104

no idea, I hadn’t saw him. So he told me or he asked me did

I have any money and I told him no. He said well, don’t

worry about it, and if you need a reference or something back

home on your job, just give me a call collect and I will tell

them. Just give me a call collect and I will straighten this

up.

“Q Was there any other conversation or discussion with

the sheriff?

“A Well, they asked me to sign out a release or [158]

something but I didn’t do it.

“Q Did they explain to you what the release was?

“A No. One man told me it was for my property but

I didn’t have anything but this coat, but my jacket, I didn’t

know what it was.

“Q All right. Now you were present in Court, were you

not, when the Sheriff drew the diagram of the jail?

“A Yes, sir.

“Q Would you step down beside the diagram, please?

“A Yes. ‘

“Q Now, is this — do you remember what floor you were

on to begin with?

“A No.

“Q Do you believe this to be an accurate representation

of where you were?

“A Well, I know there was — I know across from me there

was another cell, you know, I believe it was the Federal

tank or something.

“Q Draw that on there if you would.

“A It was something like that.

105

“Q Put it in there.

“A Like so.

“Q Now, you have just marked a place on here where

there is a door, is that right?

“A Yes, sir.

[180] “Q And I’m going to read what it says over your

signature here, “’Phis is to certify that I am the person named

and described on the reverse side and that my license or

driving privilege is not currently suspended, or revoked,

cancelled or denied. I further certify that my license has

not expired and that I am eligible for a duplicate.” And you

signed it “Linnie McCollan”?

“A Yes, sir.

“Q In fact, the front of that was not correct, was it?

“A Yes, sir, it was correct to my knowedge.

“Q The birth date is 12-8-48.

“A Well, like I said, that lady filled that out. I didn’t

know that was what was originally on my driver’s license.

“Q I understand, Mr. McCollan, but you have a number

of applications here and each time you signed the back

certifying that the information was correct, did you not?

“A Well, yes, sir.

“Q And you always knew that your birth date wasn’t

12-8-48?

“A It was 12-8-49.

“Q Right. And you also knew on at least two occasions

that the address was not correct?

“A The address was correct on both.

106

(JURY OUT.)

[182] THE COURT: All right. Gentlement, now that the

jury has retired or taking a recess, go ahead.

“Q (By Mr. SoRelle) Mr. McCollan, you were charged,

were you not, with violating the laws of the State of Texas

in making false applications for duplicate driver’s license

relating to the obtaining of these duplicates, were you not?

“A I believe it was entering a false statement for having

a Texas driver’s license.

“Q Right, that you had made false statements when you

signed those, and you stated that your license was not sus-

pended or revoked.

“A Well, see, at the time when I got those, I didn’t

know anything about my driver’s license had been suspended.

They later sent me a letter at the same time they sent me a

deal from down at the County showing that I owed a fine, I

believe of fifty-eight dollars and something and I paid it.

And then they sent me another fine and I paid that and later

they sent me my money back. I got a check for some of it

back.

“Q Mr. McCollan, didn’t you in fact plead guilty to these

charges of making false state;nents on your application for

duplicate driver’s licenses?

“A I didn’t go to Court.

“Q Did you not go in and enter a guilty plea when you

[189] “Q What name does it have on it?

“A Linnie Carl McCollan.

“Q All right. And what is your date of birth shown as?

“AK 12-8-48.

107

“Q Would you state or just read the Texas driver’s license

number that’s on there?

“A It’s 7842417.

“Q Was that the driver’s license that you held in 1972?

“A No, sir.

“Q All right. Do you still have the driver’s license you had

at that time?

“A No, sir. Those are the ones that I lost.

“Q All right. You had previously, when I took your dep-

osition, another driver’s license that was in the possession

of your Counsel?

“A That was the duplicate.

“Q That was a duplicate?

“A Yes, sir.

“Q Mr. McCollan, is this a driver’s license that you have

previously held?

“A Yes, sir.

“Q I will hand you what has been marked as Defendant’s

Exhibit Number Thirteen and I will ask you if this was

your [190] driver’s license with your picture on it?

“A Yes, sir.

“Q Is that your signature on that driver’s license?

“A Yes, sir.

“Q And what period of time did that license cover?

Do you know?

“A Until 1974.

108

“Q Do you know when you received it?

“A No, sir, I don’t. This was when I got my commercial

license.

“Q This is a commercial operator’s license?

“A Yes, sir.

“Q And I believe your prior testimony, if I am not mis-

taken, was that you got that license some time in 1973, is

that correct?

“A IT think so.

“Q And was that when you were going to work for Gay’s

Delivery Service?

“A I believe so.

“Q Is that what you recall?

“A Yes, sir.

“Q You would have gotten that at that time and all of

these other exhibits that I showed you previously you also

identified as having your signature on them, is that correct?

“A Yes, sir.

[191] “Q Mr. McCollan, when you were arrested by the

Dallas police in December of 1972 and placed in jail, was that

your first experience in being in jail?

“A No, sir.

“Q How many times had you been in jail before?

“A J don’t know the exact number.

“Q Had you ever been in the Dallas jail before?

“A Yes, sir.

109

“Q Had you ever spent any lengthy time in jail?

“A The Dallas City Jail?

“Q Yes.

“A No, sir.

“Q Had you ever spent any lengthy time in any other

jail?

“A Yes, sir. In the County Jail.

*“Q How long had you been there?

“A I think sixty days, I think, I stayed one time.

“Q And had you also been in jail in any other cities?

“A In my home town in Lubbock.

“Q I see. And had you spent any particular length of

time in jail at that time?

“A No, sir.

“Q So you had been in jail in Lubbock and, I take it,

the Dallas City Jail and the Dallas County Jail?

“A Yes, sir.

[192] “Q All right. And the length of time was, I am sorry,

thirty days or sixty days, what did you say?

“A I believe about sixty days, I’m not sure.

“Q About sixty days?

“A Yes, sir.

“Q All right. Mr. McCollan, I hand you what has been

marked as Defendant’s Exhibit Number Fourteen, it appears

110

to be another duplicate license application. This one carries

the date, I believe, of March 9th, 1972, and I will ask you

if that is your signature on that exhibit?

“A No, sir

“Q Is the other information on the exhibit consistent with

your other applications for license, is it the same driver’s

license number and date of birth and name?

“A I believe so.

“Q Does that application or the signature on it appear to

be the same as Defendant’s Exhibit Number Five if you

exclude the photograph?

“A Yes.

“Q And whose picture did you say was on Plaintiff's

Exhibit Number Five?

“A My brother’s, that’s my brother’s picture.

MR. LARSON: Excuse me, Your Honor, for the record

he referred to that as Defendant’s Exhibit Number Five

and I want to be sure that the record is clear that [193]

that’s Plaintiff’s Exhibit Number Five.

MR. SoRELLE: When I said Defendant’s Exhibit Num-

ber Five, I was speaking of Plaintiff’s Exhibit Number Five.

THE COURT: All right.

“Q Do you know if that is your brother’s signature?

“A I think so, it looks like it, I’m not certain.

MR. SoRELLE: I would like to offer into evidence De-

fendant’s Exhibit Number Fourteen.

MR. LARSON: No objection.

111

THE COURT: It’s admitted.

“Q Mr. McCollan, your brother or there is evidence that

your brother had that driver’s license at one time, I believe

you heard the evidence. Now, you also have stated that

you may have been in Amarillo around March of 1972, is

it possible that you gave your brother the information that

is on your driver’s license such as your date of birth?

“A No, sir, no way.

“Q Can you think of any way your brother got the in-

formation that you were listing your date of birth as Decem-

ber 8, 1948?

“A No, sir.

“Q Your brother wouldn’t have any reason to pick that

date unless he obtained it from you or from your driver’s

license, would he? -j

[194] “A I don’t guess so.

“Q Because that’s not your birth date, is it?

“A No, sir.

“Q Even though to this day your driver’s license reflects

that date?

“A, Yes, sir.

“Q You have never attempted to change that?

“A No.

“Q Mr. McCollan, have you ever been convicted of a

crime for which you could receive punishment in excess

of one year?

“A Yes, sir.

112

“Q What was the crime involved?

“A Marijuana.

“Q Was it for selling marijuana?

“A Yes, sir.

“Q And you were convicted in what court?

“A I don’t remember the court.

“Q Where was it? ,

“A It’s in Dallas.

“Q And did you receive a sentence for that?

“A Yes, sir. I received probation.

“Q How many years?

“A Seven.

“Q Have you been convicted of any crimes for which

[195] you could be punished in excess of one year?

“A Not that I can think of. No, I haven’t.

“Q Mr. McCollan, have you ever been fined or convicted

of any type of an offense for giving a false statement?

“A Those licenses that you are talking about a while ago,

I paid a fine of fifty-two fifty.

“Q And the fine that you paid on that was based on making

a false statement, was it not? .*

“A Yes, sir.

“Q Mr. McCollan, I believe you stated or correct me

if I am wrong, that the only time you ever saw Sheriff

Baker was at the time he released you from jail, is that

correct?

“A Yes, sir.

Si ee ~

113

“Q And Sheriff Baker was the one that determined to re-

lease you, was he not?

“A I believe it was Johnny Carter, the bondsman, the

bail bondsman.

“Q Well, Johnny Carter came in and got you, didn’t

he?

“A Yes, sir.

“Q And Sheriff Baker made the decision that you could

go?

“A Yes, sir.

“Q And explained to you how it occurred and why there

was a warrant for you, did he not?

[196] “A No, sir.

“Q Now, didn’t he show you the driver’s license?

“A Yes, sir.

“Q And say here’s how we determined to issue a warrant

for Linnie Carl McCollan?

“A He asked me who it was on that picture.

THE COURT: A little louder, please.

“A He told me who he was looking for, the guy on the

picture, that he’s the one responsible for me being arrested,

you know.

“Q I see. And that it was your brother that had been

using your name, your birth date, and displaying this to

other people, is that correct?

“A Yes, sir.

114

“Q Do you recall if you were in Amarillo during August of

1972?

“A No, sir.

“Q You don’t know whether you were or weren’t, is that

correct?

“A Right.

“Q Do you recall receiving a traffic ticket at that time?

“A No.

“Q All right. Mr. McCollan, you reviewed your income

tax returns earlier. Now, is the income reflected on those

115

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WARRANT OF ARREST OR CAPIAS RE

at 00,8

THE STATE OF TEXAS

To the Sheriff or Amy Constable of Potter County, Seid State—GREETINGS:

NOV 31972

POTTER COUNTY, TEXAS

vou ore Commended to the the body of —LINNIE. CARE. MoCOLLAN yy faye

wate

——DEPUTY

and bring him before me at my office in Amarillo, in said County, on the instanter, then end there to answer the

STATE OF TEXAS, for an offense against the laws of said state, to-wit: SALE_OF NARCOTICS.

AFFIDAVIT FILED RY WJOHNNTE CARTER TO BE RELEASED AS SURETY ON BOND———

of which offense he is accused by the written Complaint under oath of JOHNNIE CARTER

filed before me.

HEREIN FAIL NOT but have you then end there, before me, this writ with your return endorsed thereon, thow-

ing how you have executed the same.

Witness my signature on this, the 2rd day of __ November , 19.22.

Ce aN arse

Justice of Peace, Precinct No. One, Potter County, Texes

C. L. Roberts :

' 120

Sasa 2D Mh EM NAN 1S GIO, IIE ECOL LES STALE RE rae

119

OFFICER'S RETURN

Came to hand as ——dey of Rents A. 0. Zend executed | ‘im SUB TRANS THIS DATE ON

Z) Vy / #8762 BOND 10,000 OR

the 2) (— dey of Oe a Les, A. D. se i 1,000 CASH

by arresting the within named defendent and bringing him Hore the NG os herein pees ~~ 4 pacar nlennystorncign

Lk .

—wwewersw.~ —_ a

be Re ee “Sheriff

COUNTY JAILER:

: we \ oh & e ; ~ Kindly release trom custody, 10 for os the offne 4 concerasd,

| | 4 . 3 | > ot ° $7 Lynote MeCollea

} | Ae x Bt REPENS ES a eee

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PERMISSION TO CENSOR MAIL

: $4213

‘ .- , DO HERESY GRANT

| THE SHERIFF OF POTTER COUNTY PERMISSION TO OFEN AND

% ‘

. ri ‘ READ ALL INCOMING AND OUTGOING MAM, ETHER WRITTEN

BY ME OR ADORESSED TO ME fe ft!

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