Davis v. State

• Decision Date: 28 May 1913
• Citation: 158 S.W. 288
• Parties: DAVIS v. STATE.
• Court: Texas Court of Criminal Appeals

158 S.W. 288

DAVIS v. STATE.

Court of Criminal Appeals of Texas.

May 28, 1913.

Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.

Sam Davis was convicted of an attempt to bribe, and he appeals. Reversed and remanded.

C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted and convicted for attempting to bribe one of the assistant county attorneys of Dallas county, and his punishment assessed at two years' confinement in the state penitentiary.

Appellant filed a motion to quash the indictment on a number of grounds. As the first count was not submitted by the court to the jury, those grounds complaining of that count need not be considered. As to the second count, it charges that appellant did offer to J. G. Wilson, assistant county attorney of Dallas county, $100 to file a motion to set aside and recommend to the judge of the district court of Dallas county that a judgment of conviction then and there had against one Dilmous Davis, wherein the said Dilmous Davis had been adjudged guilty of an offense against the laws of the state, and sentenced to ten years in the penitentiary, be set aside.

Article 174 of the Penal Code (1911) states if any person shall bribe or offer to bribe any executive, legislative, or judicial officer he shall be punished by confinement in the penitentiary for a term not less than two nor more than five years. These words, "executive, legislative, and judicial," are meant in their broadest sense, and were intended to embrace every officer in this state — state, county, and precinct. The government is said to be divided into three separate and distinct departments — executive, legislative and judicial; and the Legislature, by the use of these words, intended and did make it plain that each and every officer in the state was embraced therein.

It is immaterial whether he was a state, county, district, or precinct officer; the allegation that he was assistant county attorney of Dallas county was sufficient, and it was not necessary to state whether this made him a state or county officer.

The indictment alleges that appellant did then and there unlawfully and corruptly offer to bribe J. G. Wilson, a duly and legally appointed and qualified assistant county attorney of Dallas county in the state of Texas, being then and there a judicial officer of the state, etc. Appellant insists that a county attorney is not a judicial officer. Under article 176, P. C., it would seem that the Legislature has classed him, under the bribery statute, a judicial officer; but this would be an immaterial allegation, as the indictment had alleged the office he held, and these words are not essential to charge the offense and could be treated as surplusage.

"`The gist of the offense,' says Mr. Bishop (2 Bishop's Crim. Law, § 86), `seems to be the tendency of the bribe to prevent justice in any of the governmental departments — executive, legislative, or judicial.' So in Walsh v. People, 65 Ill. 60, 16 Am. Rep. 569, in holding that an unsuccessful attempt to bribe is criminal, the court say: `The reason of the law is plain. The offer is a sore temptation to the weak or depraved. It tends to corrupt, and, as the law abhors the least tendency to corruption, it punishes the act which is calculated to debase and which may affect prejudicially the morals of the community.' Bribery is a crime which directly affects the community at large through its officers and representatives. Among ancient peoples, and even among the Romans, the giving of rewards and emoluments to public officers, and especially judicial officers, was tolerated and even encouraged; and, without such inducements, no audience could be had. See 4 Bla. Com. 139. The enlightened civilization of the present age quickly apprehended the danger of any such custom; and hence the fiat of the common law against it. And in modern times, the heinousness of the offense becoming more apparent as the power of wealth increased, the crime has been made punishable as a felony. The reason of the rule of the common law, and of the greater stringency of modern statutory law, is clear. The spirit of any democratic government is utterly abhorent to anything which tends to corruption in the representatives of the people, or threatens the purity of the administration of the government. And as wealth and power may become powerful forces in this dangerous direction, the protection of equal rights among the people demands that a severe penalty be visited upon any member of the community who gives, or offers to give, anything of value to any representative of the community, whether executive, legislative, or judicial, and upon any such representative who receives, or offers to receive, any such reward as an inducement to official action. In fine, the gist of the crime is the danger and injury to the community at large. Such being the case, attempts to bribe become clearly indictable, for the state must guard against the tendency to corrupt as well as against actual corruption, both being alike dangerous and injurious to the community at large. Therefore an indictment for attempting to bribe a township trustee to appoint a certain person as school teacher need not allege that there was a vacancy. Shircliff v. State, 96 Ind. 369. Here is the tendency to corrupt to the injury of the community at large; therefore the offer was an attempt to `bribe.' So one may be convicted of attempting to bribe a person to avoid the service of a subpœna, although the indictment alleges neither the existence, issuance, nor service of the subpœna. Scoggins v. State, 18 Tex. App. 298. For the same reason it is also bribery, though the act requested as the price of the bribe be not properly within the official power of the officer approached, provided it is contemplated that he act in an official capacity, and if necessary usurp functions not his own. At common law an offer of a bribe to a judge to decide a case not pending, but to be instituted afterwards before him, but which was never actually commenced, is...