Martin v. State

Decision Date06 January 1965
Docket NumberNo. 37037,37037
Citation395 S.W.2d 631,86 S.Ct. 307
PartiesJames Bryson MARTIN, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Clyde W. Woody, Houston, for appellant.

Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Carl E. F. Dally and Gus J. Zgourdes, Asst. Dist. Attys., Houston, David Brooks Coffer, Jr., County Atty., Bryan, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The conviction is for bribery; the punishment, four years in the penitentiary and a fine of $2,500.

Appellant, James Bryson Martin, and Ross Evahn, David Hudson, E. R. Coffey, and R. M. Duren were jointly charged by indictment with the offense of bribery of one Clem McClelland, a probate judge of Harris County.

Motions for severance were filed in Criminal District Court No. 5 of Harris County, in which court the indictment was pending, by appellant and also by his four codefendants. The codefendants' motion was by the court granted and, the defendants being unable to agree upon the order of trial, appellant was ordered to be tried first.

After granting the severance, the court on his own motion ordered venue of the cause changed to Brazos County and trial in the 85th Judicial District Court of said county. In the order changing venue, the court found that a trial alike fair and impartial to the accused and the state could not be had in Harris County because of the existence in the county of such great prejudice against appellant.

This is an appeal from appellant's trial and conviction in Brazos County.

The indictment, omitting the formal parts, charged:

'* * * that on or about the 2nd day of December, A.D. 1960, in said County and State, Clem McClelland was then and there the Judge of the Probate Court of Harris County, Texas, a judicial officer, the said Clem McClelland having been duly elected and qualified as such officer and having entered upon the duties of said office, a part of said duties being the appointment of appraisers, administrators and guardians in matters, causes, and proceedings filed in the Probate Court; and ROSS EVAHN, DAVID HUDSON, E. R. COFFEY, R. M. DUREN, and JAMES BRYSON MARTIN did then and there unlawfully, wilfully, and corruptly bribe and offer to bribe the said Clem McClelland by giving him the sum of Twenty-Five Thousand Seven Hundred Eighty-Three Dollars and Ten Cents ($25,783.10) in money with the intent to influence the acts, decisions, judgments and recommendations of the said Clem McClelland in his judicial capacity to thereafter appoint them, the said ROSS EVAHN, DAVID HUDSON, E. R. COFFEY, R. M. DUREN, and JAMES BRYSON MARTIN as appraisers, administrators, and guardians in matters, causes, and proceedings then pending before the said Clem McClelland in his judicial capacity, and in matters, causes, and proceedings which would thereafter be brought before and come before the said Clem McClelland in his judicial capacity in violation of his duty as said officer.'

The state's evidence shows that on the dates in question, Clem McClelland was the duly elected and acting probate judge of Harris County.

As probate judge, it was Judge McClelland's duty to appoint administrators, guardians, and appraisers in cases filed in his court. During the period from January 1, 1961, through May, 1962, Judge McClelland appointed the appellant and his codefendants, Ross Evahn, David Hudson, E. R. Coffey, and R. M. Duren, as appraisers in estates for a total of 3511 times. In this same period he appointed 257 other persons as appraisers in estates for a total of 2225 times. It was shown that until January 1, 1962, the appraisers in each estate received a fee of $5, which was charged as court costs, but that additional appraisal fees were paid the appellant and his codefendants in certain estates. In one estate, appellant and two of his coindictees received the sum of $1,200; in another estate appellant, together with one of his coindictees and another person, received $300; and in a third estate appellant received a fee of $50.

On December 2, 1960, the appellant and two other persons obtained articles of incorporation from the secretary of state, authorizing the corporation to do business under the name of Tierra Grande, Inc. The appellant, acting as president of the corporation, on December 2, 1960, opened a bank account in the name of Tierra Grande, Inc., in the Citizens State Bank of Houston. The only two persons authorized to make withdrawals from the account were the appellant and Helen Smith, who had been Judge McClelland's secretary for a number of years. Beginning in December, 1960, and in each succeeding month through May, 1962, the appellant and his four coindictees made numerous deposits into the Tierra Grande, Inc. account. During such period, Evahn's deposits totaled $6,775; Hudson's totaled $4,750; Coffey's totaled $3,666.10; Duren's totaled $7,975; and those of the appellant were in the total sum of $558. During this same period of time numerous checks were drawn on the Tierra Grande account which were either payable to Judge McClelland or, from the notations thereon, were shown to be for his benefit. The total amount of checks payable to Judge McClelland or to cash and endorsed by him was in the sum of $10,550. Many other checks in various amounts were shown to have been issued for the judge's benefit. Some of the checks drawn on the Tierra Grande, Inc. account and payable to Judge McClelland had been endorsed by him and deposited to his personal account in another bank.

Appellant did not testify or call any witnesses in his behalf.

In submitting the issue of appellant's guilt to the jury, the court charged upon the law of principals and circumstantial evidence.

We find the evidence sufficient to support the judgment of conviction.

The record is before us without any formal bills of exception.

Complaint is made to the court's refusal to quash the indictment. Appellant timely filed and presented to the court a motion to quash the indictment, in which he alleged numerous reasons why the indictment failed to charge an offense. In the motion, appellant further excepted to the indictment on the ground that it was returned by a grand jury which had before it evidence that had been illegally obtained in a court of inquiry held before Justice of the Peace W. C. Ragan, of Precinct No. One of Harris County, in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States.

The record contains the motion to quash the indictment, together with the court's order thereon and a statement of facts of the evidence adduced in connection therewith. The court's order does not show an exception by appellant to the court's ruling, as required by Art. 760e, Vernon's Ann.C.C.P., to constitute an informal bill of exception under such article. Brooks v. State, 170 Tex.Cr.R. 555, 342 S.W.2d 439.

We have, however, examined the indictment in the light of appellant's exceptions and find that it follows the statute, and the allegations are sufficient to charge the offense of bribery, under Art. 158, Vernon's Ann.P.C.

Appellant's attack upon the indictment on the ground that it was returned upon evidence illegally obtained in a court of inquiry is similar to that urged and overruled in McClelland v. State, Tex.Cr.App., 373 S.W.2d 674, where it was held that such was not a ground for quashing an indictment in this state.

Complaint is made to the court's action in denying appellant's motion for severance and in granting his codefendants' motion and ordering him tried first. In his motion, appellant alleged that Judge Clem McClelland was under indictment for an offense growing out of the same transaction, and requested that he be tried first. Request was further made that following Judge McClelland's trial, app...

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6 cases
  • Martin v. Beto
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 14 Agosto 1968
    ...the court had a basis for such finding, and no error is shown. Ross v. State, 153 Tex.Cr.R. 312, 220 S.W. 2d 137." Martin v. State, Tex.Crim.App.1965, 395 S.W.2d 631, 634. As to this objection, the federal district court found as "On the constitutionality of the change of venue from Harris ......
  • Martin v. Beto, Civ. A. No. 65-H-849.
    • United States
    • U.S. District Court — Southern District of Texas
    • 22 Agosto 1966
    ...the scene of the principal transaction. The conviction occurred in January of 1964. It was affirmed in Martin v. State of Texas, Tex.Cr.App., 395 S.W.2d 631 (January 6, 1965), and motion for rehearing was denied by the same Court of Criminal Appeals of Texas in Martin v. State of Texas, 395......
  • In re McClelland
    • United States
    • U.S. District Court — Southern District of Texas
    • 6 Octubre 1966
    ...v. Briscoe, 359 S.W.2d 640 (Tex.Civ.App.1962) ref.n.r.e.; O'Brien v. State, 376 S.W.2d 833 (Tex.Cr.App. 1964); Martin v. State, 395 S.W.2d 631 (Tex.Cr.App.1965); Martin v. Texas, 382 U.S. 928, 86 S.Ct. 307, 15 L.Ed.2d 340 (1965); Martin v. Beto, 260 F.Supp. 589 (S.D.Tex. Aug. 22, 1966). 4 M......
  • Parkview General Hospital, Inc. v. Ashmore
    • United States
    • Texas Court of Appeals
    • 30 Diciembre 1970
    ...v. Brookshire, Tex.Civ.App., 195 S.W.2d 181.' Also see Morgan v. Arnold, Tex.Civ.App., 441 S.W.2d 897, wr. ref. n.r.e.; Martin v. State, Tex.Cr.App., 395 S.W.2d 631, 634. The questions of estoppel and waiver, raised by appellants in the trial court and on appeal, became fact issues which we......
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