Bigham v. State, 21364.

• Decision Date: 12 February 1941
• Docket Number: No. 21364.,21364.
• Citation: 148 S.W.2d 835
• Parties: BIGHAM v. STATE.
• Court: Texas Court of Criminal Appeals

148 S.W.2d 835

BIGHAM v. STATE.

No. 21364.

Court of Criminal Appeals of Texas.

February 12, 1941.

Rehearing Denied March 19, 1941.

Appeal from District Court, Midland County; Cecil C. Collings, Judge.

Gordon Bigham was convicted of accepting a bribe, and he appeals.

Affirmed.

T. D. Kimbrough, of Midland, and C. C. McDonald, of Wichita Falls, for appellant.

Gerald Mann, Atty. Gen. of Texas, Benjamin Woodall and Pat Coon, Asst. Attys. Gen., Martelle McDonald, Dist. Atty., of Big Spring, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was charged with accepting a bribe, and by the jury given a penalty of two years in the penitentiary.

The facts proven by the State show that appellant was a deputy supervisor of the oil and gas department of the Railroad Commission, and as such was stationed in the area embraced by the Iatan East Howard County field. R. J. Kelly was vice-president of the Shasta Oil Company, and was a resident of Midland County, in which area such company owned a large number of producing oil wells. These wells, under the rules and regulations of the Commission, had a certain allowable which was based to some extent on the possible amount of oil that could be produced from each well, called its potential. From time to time, if desired or necessary, it was the province of this deputy supervisor to make a test of these wells to see how much oil they could produce in a given time in order to allow the Commission to fix the amount of oil that such wells would be allowed to produce. It seems that such wells of the Shasta Oil Company were operating under an allowable that was satisfactory to the owners at the time laid in the indictment. However an interview was had between Mr. Kelly and appellant in which, as the State contends, appellant indicated that he thought the potential of these wells had decreased, and therefore that they were being allowed to produce more oil than they were entitled to produce, under the rules and regulations of the Commission, and that the appellant intended to make another test of their possible ability to produce oil and report the same to the Commission, and they would thus probably reduce the allowable on said wells, and might possibly cause such wells to cease production for a certain period because of their past over-production.

At such meeting between appellant and Kelly appellant demanded the sum of $5,000 in cash and a payment of $200 per month in return for an agreement that he, appellant, would not make a further test of the said wells, but would thus allow them to continue to produce on their present allowable. Mr. Kelly got in touch with the president of the oil company and the Attorney General's Department, and made an appointment to meet appellant in Midland on a certain date. The representatives of the Attorney General, a Federal agent and two State Rangers repaired to Midland, and placed dictaphones in the office of Mr. Kelly; and on the date set appellant appeared at Mr. Kelly's office. A stenographer had been placed in the next room to Kelly's office and, through earphones, heard the conversation and took the same down in shorthand, and transcribed her notes, which were afterwards introduced in evidence.

After this conversation the appellant left Kelly's office, and was immediately arrested by the Rangers, and there was found on his person two hundred and fifty $20 bills, which were identified by their numbers as certain moneys furnished to Mr. Kelly prior to the interview between him and appellant.

Appellant's bill of exceptions No. 1 relates to his motion to quash the first count of the indictment, which was the only count submitted to the jury, and upon which the conviction was based. This count is set forth on three pages of typewritten matter and is long and involved, and in the interest of brevity we will not copy the same in this opinion. Suffice it to say, the same sets forth the fact that appellant was the duly appointed and acting Deputy Supervisor for the Oil and Gas Division of the Railroad Commission of Texas, engaged in discharging such duties in the Iatan-East Howard oil field in certain counties in the State, and in enforcing the rules and regulations of such Commission therein. Said Commission had made and promulgated certain rules for such field relative to ascertaining the allowable for the wells in such field, and such rules were set forth therein; that it was the duty of appellant as such deputy to make certain tests of the productivity of oil wells in such field in order to carry out the orders and rules of the Commission, and thus allow the Commission to determine how much oil should be allowed to flow from such wells each day; that appellant did wilfully and corruptly consent to accept and did accept $5,000 in money from R. J. Kelly, and did agree not to make any tests of said wells in order to determine the daily allowable of such wells in violation of his duty as such deputy supervisor, etc.

There are twenty exceptions leveled at this indictment, and it is patent that we cannot take up and discuss such exceptions seriatim, but must content ourselves with saying that in our opinion the indictment is sufficient to inform the appellant of the offense with which he stands charged. We thus dispose of bill of exceptions No. 1.

Bill of exceptions No. 4 relates to a request for an instructed verdict, which we think was properly overruled, and to the same effect is bill of exceptions No. 5, with the same ruling upon our part.

We do not think that the requested instruction set forth in Bill No. 6 was called for by the evidence presented us, nor does the bill attempt to set forth any such evidence. It is therefore overruled.

Bill No. 7 sets forth a requested charge on circumstantial evidence, and excepts to a failure upon the part of the trial court to give such in charge to the jury. We are not impressed with such a duty herein upon the part of the court; the testimony relative to such matters herein was direct and not circumstantial.

Bill of exceptions No. 8 is concerned with a charge requested by appellant that embodies a doctrine setting forth the difference between an accomplice offender and an accomplice witness. We can see no good reason for the trial court entering into a dissertation before the jury of the different kind or classes of accomplices, nor in what manner a witness becomes such an accomplice. It should be sufficient to say that such a witness was an accomplice, regardless of the route such witness pursued in order to arrive at such accompliceship; and we here note that the court did peremptorily instruct the jury that the witness R. J. Kelly was an accomplice, and also gave a comprehensive charge on the necessity of a corroboration of an accomplice's testimony.

Bill No. 9 complains because the trial court failed to submit to the jury for their decision the fact as to whether or not the witnesses J. R. Lewis and Mrs. R. J. Silberman were accomplices, and if thus found to be by the jury, then the necessity of their testimony being corroborated. We are doubtful as to whether the court should have peremptorily instructed the jury that R. J. Kelly was an accomplice, but if such was an error, it redounded to appellant's benefit, and he does not complain thereof. Relative to the witness J. R. Lewis, the record shows that he was an agent of the Federal government and had naught to do with the commission of any offense, nor its detection other than to be present at Odessa at a conference with the Assistants to the Attorney General, as well as to have flown in an airplane to Midland in company with a large box which presumably contained dictaphones. It is to be further noted, however, that this witness did take down the serial numbers of two hundred and fifty $20 bills and identified such a number of bills, supposedly taken off appellant's person, as the same bills whose numbers he had previously taken down. We do not think there is shown in the record any circumstance that would evidence his connection with this transaction in any form than otherwise here indicated. As to the witness Mrs. R. J. Silberman, it is shown by the record that she was a skilful stenographer who for many years had been working for the Shasta Oil Company and Mr. Kelly, and as such stenographer she was told to wait in the room adjoining Mr. Kelly's office and take down any conversation she heard in his office. She did so, and swore that she correctly took down such conversation in shorthand and correctly transcribed her notes, and same was introduced in evidence. The record shows nothing to intimate that her testimony was that of an accomplice, but was merely that of one who did not seem to know anything about the transaction whatsoever. Mr. Branch says in his Penal Code, p. 360, Sec. 702: "The witness must be criminally connected with the crime on trial before a charge on accomplice testimony is required," citing many cases.

Bills Nos. 10 and 11 relate to the refusal of a further charge on accomplice testimony setting forth the doctrine that one accomplice cannot corroborate another, which charge we do not think called for by the testimony.

Bill of exceptions No. 12 is based on the following occurrence: It will be remembered that the witness Mrs. Silberman testified that she took down in shorthand a conversation between R. J. Kelly and appellant, which occurred at the time the State contended that appellant accepted the bribe of $5,000, and that she reduced said notes to typewriting in the English language, and this translation of these notes was introduced without objection before the jury. After the jury had retired, they sent to the trial court this request in writing: "The jury wishes to know if Mrs. Silberman's transcribed statement is to be considered as corroborative evidence of the witness R. J. Kelly. We also wish to see a copy of same."

After this request was received, appellant r...