Nisbet v. State, No. 30212

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtWOODLEY; DAVIDSON
Citation80 S.Ct. 1601,336 S.W.2d 142,170 Tex.Crim. 1
PartiesLuther M. NISBET, Appellant, v. STATE of Texas, Appellee.
Docket NumberNo. 30212
Decision Date16 December 1959

Page 142

336 S.W.2d 142
170 Tex.Crim. 1
Luther M. NISBET, Appellant,
v.
STATE of Texas, Appellee.
No. 30212.
Court of Criminal Appeals of Texas.
Dec. 16, 1959.
Certiorari Denied June 20, 1960.
See 80 S.Ct. 1601.

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 [170 Tex.Crim. 2] H. Robertson, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

The offense is conspiracy to commit a felony (Art. 1622 Vernon's Ann.P.C.); the punishment, four years.

Page 144

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, [170 Tex.Crim. 3] 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

Page 145

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 [170 Tex.Crim. 4] 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:

"Now, there was one matter here about Mr. Ryan's argument that amused me. That was the matter that these witnesses who came here and testified to their participation in these transactions, or whatever part they played in them, that they were either liars or crooks. I think you can easily understand and can discern for yourselves from having seen them, and heard their testimony, and having had the opportunity to review the numerous exhibits in the record, you are completely satisfied they are not liars.

"Now, Mr. Ryan says if you believe them they are crooks. Then J ask you Mr. Ryan and I ask you, Mr. Nisbet, what does this make Mr. Luther M. Nisbet and Joe L. Angle, Jr.?'

'Mr. Ryan then made an objection as shown in Defendant's Bill of Exception. The Court overruled the motion for mistrial as shown in the bill, to which action the defendant excepted.'

'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.

[170 Tex.Crim. 5] '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

Page 146

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[170 Tex.Crim. 6] 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...

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43 practice notes
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    ...Inc. v. N. L. R. B., 250 F.2d 791, 792 (C.A.6); Raser Tanning Co. v. N. L. R. B., 276 F.2d 80, 84 (C.A.6), cert. denied, 363 U.S. 830, 80 S.Ct. 1601, 4 L.Ed.2d (c) We now come to the most difficult question in the case, and one which will be determinative of some of the other issues. This i......
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    ...State v. Graziani, 60 N.J.Super. 1, 18, 158 A.2d 375 (App.Div.1959), aff'd o. b. 31 N.J. 538, 158 A.2d 330 Cert. den. 363 U.S. 830, 80 S.Ct. 1601, 4 L.Ed.2d 1524 (1960). Nor does the fact that Cicala had no personal knowledge of the outcome of his plan or of the identities of the persons wh......
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    • United States State Supreme Court (New Jersey)
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    ...Graziani, 60 N.J.Super. 1, 13, 158 A.2d 375 (App.Div.1959), affirmed, 31 N.J. 538, 158 A.2d 330 (1960), certiorari denied, 363 U.S. 830, 80 S.Ct. 1601, 4 L.Ed.2d 1524 (1960); State v. Hall, 55 N.J.Super. 441, 447, 151 A.2d 1 In Goodman, supra, the defendants were convicted on a charge of co......
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43 cases
  • Philip Carey Mfg. Co., Miami Cabinet Div. v. NLRB, No. 15289
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 31 Marzo 1964
    ...Inc. v. N. L. R. B., 250 F.2d 791, 792 (C.A.6); Raser Tanning Co. v. N. L. R. B., 276 F.2d 80, 84 (C.A.6), cert. denied, 363 U.S. 830, 80 S.Ct. 1601, 4 L.Ed.2d (c) We now come to the most difficult question in the case, and one which will be determinative of some of the other issues. This i......
  • Lockheed Aircraft Corp. v. US, No. 382-70.
    • United States
    • Court of Federal Claims
    • 23 Marzo 1977
    ...to produce a new and useful result is patentable. Saulnier v. United States, 180 F.Supp. 412, 148 Ct.Cl. 507, cert. denied, 363 U.S. 829, 80 S.Ct. 1601, 4 L.Ed.2d 1525 (1960); Zonolite Co. v. United States, 149 F.Supp. 953, 138 Ct.Cl. 114 (1957); Badowski v. United States, 140 F.Supp. 544, ......
  • State v. Stefanelli
    • United States
    • United States State Supreme Court (New Jersey)
    • 10 Enero 1979
    ...State v. Graziani, 60 N.J.Super. 1, 18, 158 A.2d 375 (App.Div.1959), aff'd o. b. 31 N.J. 538, 158 A.2d 330 Cert. den. 363 U.S. 830, 80 S.Ct. 1601, 4 L.Ed.2d 1524 (1960). Nor does the fact that Cicala had no personal knowledge of the outcome of his plan or of the identities of the persons wh......
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    • United States
    • United States State Supreme Court (New Jersey)
    • 6 Noviembre 1961
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