Minter v. State

• Decision Date: 16 April 1913
• Citation: 159 S.W. 286
• Parties: MINTER v. STATE.
• Court: Texas Court of Criminal Appeals

159 S.W. 286

MINTER v. STATE.

Court of Criminal Appeals of Texas.

April 16, 1913.

On Motion for Rehearing, June 11, 1913.

COPYRIGHT MATERIAL OMITTED

Appeal from Criminal District Court, Dallas County; Barry Miller, Judge.

Jim Minter was convicted of bribery, and he appeals. Affirmed.

Appellant's counsel made the following points and cited the following cases:

(1) The court erred in overruling the motion to quash the second count, for the reason that it charges no offense, and is vague, indefinite, ambiguous, and unintelligible to an extent that defendant is not apprised of the facts attempted to be proven against him with sufficient clearness to prepare or present a defense thereto; it fails to charge that defendant had ever committed an offense for which he could bribe an officer not to arrest him; it fails to allege what legal duty the officers had to perform in regard to defendant or any other persons; it does not allege what the legal duties of the policemen of the city of Dallas are; because it charges that defendant paid a bribe to induce and influence the officers to corruptly violate their duties as peace officers, to not report and file complaints against defendant and any other persons for unlawfully keeping and being interested in keeping a gaming house and place where intoxicating liquors were sold illegally; because the laws do not require police officers to report and file complaints against any one, whether they have violated the law or not; because the allegation charging defendant with delivering a bribe to induce and influence the officers to not report and file complaints and arrest defendant and any other persons for unlawfully keeping and being interested in keeping, and in case they should keep and be interested in keeping for the purposes of gaming, certain premises, is vague, ambiguous, and unintelligible, and relates to some future happening and event, as to which no officer may have any special duty to perform, because the allegation that defendant delivered the bribe to corruptly induce the officers not to arrest, report, and file complaints against him and other persons for unlawfully keeping a house where liquors were sold and kept for sale does not name the other persons, because there is no duty upon police officers to report and file complaints under such conditions, and because the allegation is fatally defective, in that it charges defendant and other persons with keeping directly or indirectly, which does not constitute an offense; because the allegation that defendant paid such bribe to induce the officers to not arrest and file reports against him and other persons for keeping a certain house as a place where liquors were to be sold and kept for sale is conflicting with the allegation immediately preceding, in that one alleges that they did directly or indirectly keep, etc., while the other charges them with directly or indirectly "intending" to keep such house for the purposes therein set out.

(2) The evidence discloses that, though defendant may have made remarks indicating a desire to bribe the officers and that he desired to see them separately, the transaction, instead of being consummated as he intended, was carried into effect as the officers had previously determined on and there was no bribery. O'Brien v. State, 6 Tex. App. 668; Dever v. State, 37 Tex. Cr. R. 396, 30 S. W. 1071; Love v. People, 160 Ill. 501, 43 N. E. 710, 32 L. R. A. 139; Speiden v. State, 3 Tex. App. 156, 30 Am. Rep. 126; Connor v. People, 18 Colo. 373, 33 Pac. 159, 25 L. R. A. 341, 36 Am. St. Rep. 295.

(3) It is a legal impossibility for one man to commit bribery. There must be a giver and an acceptor.

(4) The evidence showing conclusively that the only witnesses for the state were accomplices, and there being nothing tending to show corroboration, the court should have instructed a verdict for defendant.

(5) The evidence showing that the only demand that defendant made of the officers was that they do their duty, the state cannot by innuendo or inference place a construction on the language to suit itself. The defendant can only be bound by what he did.

(6) The court should have instructed that, if the officers by their words and conduct encouraged defendant to consummate the offense, they were accomplices, and, there being no pretended corroboration, that they should acquit.

(7) If officers by act or conduct aid or encourage the defendant to commit an offense, and if such offense would not have been committed except for such encouragement and aid, for the purpose of catching and prosecuting him, they are accomplices, and a verdict of not guilty should be instructed, where there is no pretense of corroboration.

(8) The court erred in refusing defendant's instruction No. 5, that the state had attempted to show the ownership of the premises where liquor was stored by Deputy Sheriff Sebastian, that the witness testified that he told him that it was not his place, but belonged to another, that the state was bound by this statement, and that if the jury believed such evidence, and found that the place and premises were not defendant's, or had a reasonable doubt in that regard, they should acquit.

(9) The court erred in refusing to charge that, if it was the act and conduct of the officer advising defendant that he would see the other partner and talk to him later about the bribe which encouraged defendant to commit the offense, if any, and but for such conduct defendant would not have committed the crime, the jury should return a verdict for defendant.

(10) The court erred in refusing the defendant's special instruction No. 7 as to the construction to be placed upon defendant's statement that he expected the officers to do their duty.

(11) The court erred in refusing to charge that if, at the time the money passed, defendant told the officers that he expected them to do their duty, this would constitute no offense.

(12) The court erred in not charging, as a matter of law, that the witnesses Davis and Thompson were accomplices. Morawietz v. State, 46 Tex. Cr. R. 436, 80 S. W. 997; Ruffin v. State, 36 Tex. Cr. R. 565, 38 S. W. 169; Collins v. State, 51 S. W. 216.

(13) The court erred in charging that if the jury had a reasonable doubt that the officers, or either of them, had a corrupt or unlawful purpose to accept the bribe, etc., thus placing the burden on defendant of showing both a corrupt and unlawful purpose, whereas either a corrupt or unlawful purpose would have made them accomplices.

(14) The court erred in charging that the jury could not convict on the testimony of Davis and Thompson, or either of them, unless they believed their, or either of their, testimony to be true, and that it was corroborated by other independent testimony, tending to connect defendant with the offense, and that corroboration would not be sufficient if it merely showed the commission of the offense; this being erroneous, and there being no evidence tending to corroborate such witnesses.

(15) The court erred in charging that the testimony relative to defendant being interested in keeping premises for the unlawful purpose alleged was for the purpose alone of showing that he was the keeper of such premises, and could not be considered for the purpose of corroborating Davis and Thompson, if the jury concluded that they were accomplices.

(16) The court erred in charging that if the jury found defendant guilty beyond a reasonable doubt, and further believed beyond a reasonable doubt that Davis and Thompson had no corrupt purpose in joining defendant in the commission of the offense, but went into the transaction originally as officers with the intention of securing defendant's arrest and conviction, they would not be accomplices. The court erred in charging that a conviction could not be had upon the uncorroborated testimony of an accomplice, unless the jury believed it to be true, and it connects defendant with the offense, and not then unless there was other testimony corroborating the accomplices' testimony, and tending to connect defendant with the offense, and that corroboration was not sufficient if it merely showed the commission of the offense.

(17) The court erred in not charging that Davis and Thompson were accomplices and that defendant should be acquitted.

(18) The court erred in failing to give the jury any definition of bribery.

(19) The court erred in charging that before they could convict they must believe that defendant was unlawfully engaged in keeping or directly interested in keeping and concerned in keeping a certain house as a house where spirituous, vinous, and malt liquors were sold and kept for sale, etc.; this not being confined to the language or intent of the statute defining the offense of selling intoxicating liquor without a license. One man cannot commit bribery, and where the court holds that there is not even sufficient evidence to make the giver an accomplice there was no acceptance. The Court of Criminal Appeals erred in holding that defendant induced the court to charge upon the law of accomplices or to submit the question to the jury.

Walter F. Seay, M. T. Lively, W. W. Nelms, and Jed C. Adams, all of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was convicted of bribery of a policeman in Dallas, Tex., and his penalty fixed at four years in the penitentiary.

Appellant has many bills of exception, and many complaints of the indictment, the charge of the court, the refusal to give his special charges, and other matters. Although we have considered all of his complaints, we deem it unnecessary to take them up separately and discuss them. His attorneys have filed a forcible brief, and made on able oral argument wherein he presents, as we take it, all of the material questions necessary to a correct decision of this case. We will undertake to state, discuss, and decide these questions so presented.

The...