I. A woman was brought before a justice of the peace on a charge of vagrancy. He committed her to the county jail, and delivered the commitment to the marshal of the town, who, while waiting for a train, put her for safe-keeping in the town “ calaboose.” The defendant and another, with violence, liberated the woman, breaking the lock of the door of the “ calaboose.” Upon an indictment charging substantially these facts, the defendant was convicted, and sentenced to two years’ confinement in the state penitentiary.

*6711 practice court1??™favoranúfenor court, *670II. It is now insisted that the woman was not in legal custody, for the reason that the justice of the peace com*671raitted her to the county jail for ten days, when the statute provides that in case of conviction á vagrant shall, in default of bail, be committed, ooci6) g g 4X34, 4135. In answer to this.objection it is sufficient to say tíiat the abstract fails to show the judgment of commitment. Whether it was in default of bail or for the specified time is not shown by the evidence. We are required to presume that the judgment is in accord with the law.

2 criminal mitmeu™of thority'oi?11" sha£ rescuing prisoner. ■ III. It is next urged that the woman was not in lawful custody, for the reason that the town marshal was orally appointed by the justice special constable, and that such appointment was void. It appears that probably both the justice and constable supposed that the marshal should be appointed special con-an(j p[iereilp0;il the justice orally made the appointment. But, as we shall proceed to show, the marshal, as such officer, was authorized to serve the commitment and other process in the case. The mistaken opinion held by the justice and himself, that he should be appointed special constable, did not render his acts void. He was not robbed of his authority as marshal by the mistake. The marshal was a peace officer. Code, § 4109, par. 3. It wras his duty to arrest the vagrant and take her before the justice. Section 4132. He was authorized to serve the commitment. Section 4247. It follows that the woman was lawfully in the custody of the marshal.

IY. Counsel insist that there is a variance between the proof and the allegation of the indictment. The indictment alleges that the woman was in the custody of the marshal. Counsel insist that the evidence shows she was held by one claiming to be special constable. But, as we have seen, the mistake of the marshal and justice did,not take away the authority of the marshal. He held the woman as marshal.

The foregoing discussion disposes of all questions in the case. The evidence sufficiently supports the verdict, and the *672sentence of the court below is just. It will teach a lesson of respect for the law and its officers to men of the class and character of defendant. The judgment is

Affirmed.