Angle v. State, 28873
| Decision Date | 19 June 1957 |
| Docket Number | No. 28873,28873 |
| Citation | 306 S.W.2d 718,165 Tex.Crim. 305 |
| Parties | Joe L. ANGLE, Jr., Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Thomas M. Ryan, Houston (Dixie, Ryan & Schulman, Houston, of counsel), for appellant.
Dan Walton, Dist. Atty., Eugene Brady and Thomas D. White, Asst. Dist. Attys., Houston, and Leon Douglas, State's Atty., Austin, for the State.
The offense is consenting to accept a bribe, as denounced by Article 159, V.A.P.C.; the punishment, two years.
Our original opinion is withdrawn. When this case was first submitted, we declined to pass upon certain questions because the certificate attached to the statement of facts did not certify that it contained all the evidence adduced upon trial.
It is now shown that it was the intention of the attorneys for the State and the defendant, by signing the certificate attached to the statement of fact herein, to agree to it as a complete statement of facts, and the affidavits of said attorneys are to the effect that there were no additional facts elicited upon the trial on the merits which are not incorporated therein.
It is also made to appear that the form of certificate is the same as that used in many appeals to this Court, by reason of which fact appellant should not be charged with lack of diligence.
While there are cases which would appear to support a contrary holding, we have decided that the additional evidence that has come into the record by way of affidavits of the attorneys who approved the statement of facts is available and that under the present record the statement of facts may be considered.
In Berrian v. State, 87 Tex.Cr.R. 284, 221 S.W. 282, the statement of facts, though not approved, was considered upon the statement of the trial judge and the affidavits of counsel for appellant that the trial judge believed that he had signed and filed the statement of facts and his failure to do so was by inadvertence and oversight.
In Curry v. State, 156 Tex.Cr.R. 379, 242 S.W.2d 421, the statement of facts was not considered because not filed within the time allowed by law. On rehearing, it was considered, a showing having been made that it had been in the hands of the clerk before the expiration of the time allowed and the clerk had corrected his certificate.
It was pointed out that
Whether by reason of an admission by the State or the correction of the certificate to the agreement intended by counsel, we need not decide. In fairness to appellant, the statement of facts will be considered.
It was established that on or about the date charged in the indictment the city of Houston was engaged in a large scale purchase and condemnation of property for street right-of-way purposes and that the appellant was Superintendent of the Land Acquisition Division of the Treasury Department of said city and that one Nesbit was a subordinate appraiser under the appellant.
The accomplice witness Joe Sam testified that, as a representative of his father's estate, he held extensive real estate holdings in the city of Houston, among them being lots 18 and 19 in block 14 of the Forbush Addition to said city; that the appellant, whom he had known for some time, showed him what purported to be an appraisal of said lots which indicated their value to be something in excess of $14,000; and that he voiced his protest that such valuation was inadequate. Sam stated that the appellant made the suggestion that the price could be increased if Sam would share with him equally any advance in the price which he might be able to effect and that he agreed to such arrangement. Sam testified further that the city of Houston paid $19,694.52 for such lots sometime after he made this agreement with the appellant and, pursuant thereto, he handed the appellant a check in the sum of $2,475, which represented one-half of the approximately $5,000 increase which the appellant had been able to add to the price of the lots in question over and above the original valuation which had been shown to him.
Sam admitted that he had often asked the appellant's advice on real estate values but denied that he had ever agreed to pay or had paid the appellant for such advice and denied that the $2,475 check or any other check which he had given the appellant was in payment for such counsel.
Sam further testified that he had sold several other tracts of land to the city of Houston and that on each occasion he had likewise compensated the appellant for his services in securing an increased valuation on said tracts.
It was shown that sometime after the appellant's conversation with Sam the City Council Received in the regular order of procedure a valuation of the lots in question, signed by Nesbit and approved by the appellant, showing their value to be $19,694.52 and that the Council authorized such sum to be paid.
It was established by the bank records that the $2,475 check mentioned above was endorsed by the appellant and Nesbit, was deposited to Nesbit's credit at the bank, and that Nesbit then drew a check on his account in the sum of $1,237.50 and deposited such sum to the appellant's account. The checks and bank records were introduced in evidence.
The appellant did not testify in his own behalf but offered certain witnesses who testified that only one valuation on the lots in question had ever appeared in the records of the city, that the price paid by the city was in line with the prices paid for other lots in the same addition, and that Nesbit and the appellant had spoken of doing outside appraisal work for Sam.
The facts will be more fully discussed in connection with the contentions advanced by the appellant's eminent attorney in brief and argument.
Appellant moved to quash the indictment and for an instructed verdict on the grounds that the office which the indictment alleged the appellant held was not such an office as in named in the bribery statutes. Article 160, V.A.P.C., which enumerates the executive, legislative and judicial officers who come within the purview of the bribery statutes concludes with this phrase, 'and all other city, county and State officials.' We quote the pertinent portion of the indictment: 'was then and there the duly appointed, qualified and acting Acting Superintendent of Land Acquisition Division of the Treasury Department of the City of Houston.'
The appellant takes the position that he was named in such indictment as the 'Acting Superintendent' and that there is no such office.
The State's position is that the double use of the word 'acting' is a typographical error which would not vitiate the indictment.
Ordinance No. 60 of the city of Houston, which was introduced in evidence, creates the position of 'Superintendent of Land Acquisition Division of the Treasury Department.'
Ordinance No. 7740 lists the officers and employees of the Treasury Department as follows: 'Director of Treasury, Tax Assessor & Collector, Superintendent of Land Acquisition Division, Assistant Superintendent of Land Acquisition Division * * *.' This is followed by a list of more than one hundred employees in said department, such as accountants, clerks, draftsmen, etc.
The court in his charge required the jury to find before they might convict that the appellant was the duly appointed, qualified and acting Superintendent of the Land Acquisition Division of the Treasury Department of the city and that he was an 'executive officer of said city.'
The record reflects that more than a year prior to the date charged in the indictment the appellant had been promoted from Assistant Superintendent of the Land Acquisition Department to 'Superintendent' of such department upon the recommendation of his superior, the Director of the Treasury, and that such promotion was certified by the Director of Civil Service and Personnel Officer of the city.
The evidence establishes that the appellant as 'Superintendent of the Land...
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