Clark v. State, 14369.

• Decision Date: 13 November 1931
• Docket Number: No. 14369.,14369.
• Citation: 45 S.W.2d 575
• Parties: CLARK v. STATE.
• Court: Texas Court of Criminal Appeals

45 S.W.2d 575

CLARK v. STATE.

No. 14369.

Court of Criminal Appeals of Texas.

November 13, 1931.

State's Rehearing Denied January 6, 1932.

Application for Leave to File Second Motion for Rehearing Denied February 10, 1932.

Commissioners' Decision.

Appeal from Criminal District Court, Harris County; Langston G. King, Judge.

E. B. Clark was convicted of accepting a bribe, and he appeals.

Reversed and remanded.

J. S. Bracewell, of Houston, for appellant.

O'Brien Stevens, Crim. Dist. Atty., and E. T. Branch, both of Houston, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is accepting a bribe; the punishment, confinement in the penitentiary for two years.

Appellant, who was a constable in Harris county, had appointed two deputy constables named Peterson and Gregg. Dick Woods, a state's witness, lived in appellant's precinct. Woods testified, in substance, as follows: He was running a house where people were permitted to congregate for the purpose of gambling. Gregg and Peterson often came to his house when a game was in progress, but did not enter. The would drive to the house in an automobile and blow the horn, and he would take ten dollars out to the car and give same to said parties. He finally quit giving the parties money and was arrested by appellant, and required to pay a fine for gambling. A third party had told him if he would pay Gregg and Peterson they would not interfere with his game. He had also heard Gregg tell said third party that they might go ahead with the game. Prior to the time he began paying money to Gregg and Peterson they had come to his place and beaten up several of the participants in the game. Before appellant was arrested, a Mr. Ward and Peterson came to see him (witness) and asked him to sign a paper, making the statement to him that if he would sign it they would all get out of trouble. He declined to sign the paper until Gregg was present. After Gregg appeared and told him it was all right, he signed the paper. Later, Woods was told by Gregg that he signed a statement involving appellant. He then stated to Gregg that he had had no business dealings with appellant.

Peterson, who was an accomplice witness, testified that appellant and Gregg advised him that they would give him 10 per cent. of the amount he collected from Woods; that he went to Woods' house every Saturday night and made the collection; that he turned the money over to Gregg, and on some occasions had seen Gregg give the money to appellant; that Gregg and appellant did not tell him what Dick Woods was doing; that appellant and Gregg told him to stay away from Woods' house; that he had never given Clark any money himself. The justice of the peace testified that after the indictment had been returned against appellant, and appellant had been released from custody, he came to him and asked him to see the district attorney in regard to a suspended sentence. We quote from his testimony as follows:

"He (appellant) said he did not see this darky Woods on this particular date (the date charged in the indictment), but that he had received money, but he didn't get the money and that he hadn't made this arrangement with Woods, but those men working for him, I believe Peterson and Gregg, had gotten the money and it didn't amount to anything much and it just went away like it come, just for a few little things here and there, and he didn't have any money to pay for any defense or anything. He said that he didn't individually get the money from the negro. He said that Peterson and Gregg got it. He said that he, defendant, got some of it, that it was divided."

The justice of the peace further testified that appellant never told him, while he was constable, that Woods was running a gambling house, and that he was taking money from him. He said: "He never told me that until after he was indicted."

It appears that W. H. Warren, who was a special officer in the bureau of prohibition, and who had authority to make arrests, went to appellant, several weeks prior to the return of the indictment, for the purpose of determining why certain conditions with reference to violations of the liquor laws prevailed in his precinct. He stated to appellant that as an officer of the government he would appreciate him making a statement to clear the matter up. He testified that he advised appellant that it would be better to make a statement and tell the truth. He said that appellant asked him what he supposed they would do with him if he came clean and told the whole truth, and that he told appellant he had no authority in the matter, but would try to get an expression from the United States district attorney. After having this conversation with appellant, the officer conferred with the district attorney. Thereafter he went back to see appellant and told him the district attorney said he would be considerate of him on account of his being only 24 years of age. The witness testified further that he did not remember whether anything was said to appellant about a suspended sentence; that he gave appellant to understand that he had some pretty good information against him; that there was some discussion about a lawyer, and that after appellant had made the confession he advised him not to have a lawyer. He further testified that he at no time arrested appellant or told him that he was going to arrest him. After the officer had seen the district attorney and advised appellant that the district attorney said that he would show consideration, appellant made a statement which was reduced to writing and signed by him. We quote the inculpatory portion of this statement as follows:

"As I remember we collected five dollars per week from Dick Wood, a negro, who operated a gambling place and sold some whisky, I think that we started with five dollars per week and went up to ten dollars per week. He also told me about Dick Wood leaving money with Fondon for him. After W. O. Peterson quit collecting for me about the first of September, 1930, C. H. Davidson did some collecting for me, paying me about fifty dollars during the month of September, 1930. Mr. Davidson told me he collected some from Dick Wood, ten dollars per week."

Appellant offered several witnesses who testified that his general reputation for being peaceable and law-abiding was good. The state offered no testimony to the contrary. Appellant did not testify in his own behalf.

We think the indictment is sufficient under the decision in Pierce v. State (Tex. Cr. App.) 38 S.W.(2d) 589. We pretermit further discussion of appellant's motion to quash.

When the state offered in evidence the written statement of appellant, as an admission against his interest, appellant's counsel asserted that appellant was under arrest at the time the statement was made, and that the statement was not made under the formalities required by article 727, C. C. P. Request was made that the court withdraw the jury and hear evidence upon the point. The court declined to have the jury withdrawn, and permitted the jury to hear evidence upon the question. The only evidence heard came from the officer who took the confession. Appellant offered no testimony on the point. The court should have retired the jury and heard testimony, as requested by appellant. Bingham v. State, 97 Tex. Cr. R. 594, 262 S. W. 747. In view of the fact that we are unable to determine from the record whether appellant could have offered testimony showing or tending to show that he was under arrest, we must hold that reversible error is not presented.

Appellant objected to the reception in evidence of his written statement on the ground that the testimony of the officer conclusively showed that the statement was not voluntarily made. The opinion is expressed that the testimony went no further than to raise an issue as to the voluntary character of the statement. Hence, it was properly received in evidence.

Appellant excepted to the charge of the court on the ground that the issue as to whether his written statement was voluntary should have been submitted to the jury. We think the exception was well taken. Appellant declined to make a statement until the officer conferred with the United States district attorney relative to the consequences appellant might expect if he made a statement. After the officer told him that the district attorney said he would be considerate on account of appellant's age, and after appellant had been advised by the officer that it would be better for him if he made the statement, appellant confessed. In connection with our discussion of this question, reference is made to the statement of the testimony...