Nisbet v. State
| Decision Date | 16 December 1959 |
| Docket Number | No. 30212,30212 |
| Citation | 80 S.Ct. 1601,336 S.W.2d 142,170 Tex.Crim. 1 |
| Parties | Luther M. NISBET, Appellant, v. STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Luther M. Nisbet, pro se.
Thomas M. Ryan, Percy Foreman, Holvey Williams, Joe Ed Winfree, Sr., Houston, for appellant.
Dan Walton, Dist. Atty., Thomas D. White and Samuel H. Robertson, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is conspiracy to commit a felony (Art. 1622 Vernon's Ann.P.C.); the punishment, four years.
The indictment is in one count and alleges that appellant and Joe L. Angle, Jr. did 'unlawfully conspire, combine, confederate and agree, and did enter into a positive agreement together and between themselves' to unlawfully take and steal money and property of the value over $50 from the City of Houston; that they further conspired to take and steal money, funds and checks of the value of more than $50 from various unknown persons, and that they further conspired to accept and agree and consent to accept bribes, Joe L. Angle, Jr., being an executive officer of the City of Houston.
The indictment continued at length the allegations as to the agreement setting out that Joe L. Angle, Jr. and appellant agreed they would accept money from persons who would sell land and property to the City of Houston; that Joe L. Angle, Jr., in his official capacity as Superintendent of the Land Acquisition Department, would make recommendations relating to the purchase and the consideration to be paid for such property so as to cause and influence the purchase price thereof to be increased, in consideration for which appellant and Joe L. Angle, Jr., would receive one-half of the increase, all in violation of Joe L. Angle's duties as an executive officer of the City of Houston.
An indictment charging a conspiracy to commit a felony need not allege the offense intended that the particularity necessary in an indictment charging the commission of the intended offense. Carter v. State, 135 Tex.Cr.R. 457, 116 S.W.2d 371.
The crime of conspiracy is a single offense, though the parties enter into a positive agreement to commit one or many felonies.
A conspiracy to commit a number of crimes may be included in a single count of the indictment without rendering the indictment duplicitous. The gist of the crime being the conspiracy, it may include a single offense or several. Frohwerk v. United States, 249 U.S. 204, 209, 39 S.Ct. 249, 63 L.Ed. 561; Norton v. United States, 5 Cir., 295 F. 136; Outlaw v. United States, 5 Cir., 81 F.2d 805.
Appellant does not question the rule stated, but contends that the indictment is duplicitous in that it alleges three separate and distinct conspiracies, namely:
(1) A conspiracy to commit felony theft of money and property from the City of Houston,
(2) A conspiracy to steal money and property from unknown persons, and
(3) A conspiracy to accept or agree to accept a bribe.
We have concluded that the indictment alleges a single conspiracy entered into on or about April 15, 1954, to commit a felony; the offense intended being felony theft of money and property belonging to the City of Houston, felony theft of money and property from persons whose names and descriptions were unknown, and the felony offense of accepting and agreeing to accept bribes. No conspiracy was alleged to have been entered into any time other than on or about April 15, 1954.
Under the indictment, it was not necessary that the evidence establish that the conspiracy entered into on or about April 15, 1954, extended to all of the intended offenses. The State abandoned the allegation that the intended offense was felony theft from unknown persons, and the court's charge required the jury to find that appellant and Joe L. Angle, Jr., entered into a conspiracy to steal money or property of the value of more than $50 from the City of Houston, or that they conspired to accept and agree to accept bribes in the manner alleged in the indictment. A verdict of guilty was all that was required. Floyd v. State, 164 Tex.Cr.R. 50, 296 S.W.2d 523; Stevens v. State, 157 Tex.Cr.R. 19, 245 S.W.2d 499; McArthur v. State, 132 Tex.Cr.R. 447, 105 S.W.2d 227.
The elimination of the allegation as to conspiracy to steal property from unknown persons by the court's charge was not unfavorable to appellant. The charge does not support the defense theory that three separate conspiracies were alleged rather than a single conspiracy to commit three separate offenses, and the State was not required to prove that appellant and Joe L. Angle, Jr., conspired to steal money from the City of Houston and from unknown persons and also conspired to accept and agree to accept bribes.
Bill of Exception No. 1 complains of argument, the complaint being that the district attorney, in his closing argument, made a direct and an indirect reference to the defendant's failure to testify.
The court qualified the bill of exception, in part, as follows:
'Mr. Ryan, attorney for Defendant, in his argument to the jury had stated that a number of the State's witnesses were either liars or crooks as they had participated in the transactions with the Defendant and Joe L. Angle, Jr., and, in fact, the Court had charged that such witnesses were accomplices as a matter of law.
'Mr. Walton, who made the closing argument for the State, discussed the testimony of such witnesses and then facing the defendant and pointing his finger at him continued with the following argument:
'The Court did not consider the complained of argument as either a direct or indirect reference to the failure of the defendant to testify, but construed the question as a rhetorical question in the course of legitimate argument.
'At the conclusion of the argument and before the jury was retired the Court out of an abundance of caution instructed the jury 'You will not consider and strike out what the District Attorney said when he asked a question of Mr. Nisbet.'
'Defense counsel then stated: 'We nevertheless reserve our exception to it, because it is of such a nature that it cannot be cured by instruction."
The bill as qualified certifies that the trial judge, who heard the argument and observed the district attorney's actions, did not consider the complained of argument to be a reference to appellant's failure to testify, but construed the question as rhetorical; made in the course of legitimate argument, and not a question calling for an answer by appellant or anyone else.
In the light of the trial judge's certification, to which there was no exception, we find no reversible error in Bill of Exception No. 1.
Appellant complains that the trial judge refused to order the district attorney to produce the grand jury testimony of the accomplice witness Joe Mitchell Sam, and declined to permit him to prove by the district attorney that he had such a statement.
Sam had testified that he had given certain checks to Angle under an agreement to pay Angle one-half of the amount by which an appraisal of property acquired from his father's estate through him by the City of Houston was raised above the first appraisal.
On cross-examination Sam was asked whether or not he had told the grand jury that such checks were payments for appraisal work Joe L. Angle, Jr., had done for Sam Realty Company and were in no wise connected with the acquisition by the City of Houston of properties of his father's estate.
The witness answered that he did not remember that testimony, and did not recall exactly what was said.
The complaint as to the court's ruling was not pursued after verdict. All that appears happened in the jury's presence. There is nothing in the record to show that the witness' testimony before the grand jury was in fact reduced to writing, and nothing to show that the witness' testimony before the grand jury was at variance with his testimony at the trial.
Under the record we hold, consistent with the prior holdings of this Court, that the trial judge did not err in these rulings.
Evidence offered by the State to establish the conspiracy included: (1) The testimony of Joe Mitchell Sam relating to five tracts of land acquired from the Jake H. Sam estate represented by him. He testified to an agreement made with him by Joe L. Angle, Jr., under which the city's offer was raised from the previous offer, one-half of the increase being paid to Joe L. Angle, Jr., by the witness Sam.
(2) The testimony of Jack Morriss to the effect that appellant obtained an increase in the city's offer for a tract of his land, in return for which appellant said he expected a mink coat but after the city paid for the land appellant demanded and received from him $3,500.
(3) The testimony of Richard M. Strauss to the effect that what was represented to be a final offer for property belonging to his mother-in-law the amount was raised under agreement with appellant that the additional amount 'we would split with Mr. Nisbet,' and $675 was paid to appellant in cash. Strauss...
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