Pierce v. State

• Decision Date: 11 March 1931
• Docket Number: No. 13815.,13815.
• Citation: 38 S.W.2d 589
• Parties: PIERCE et al. v. STATE.
• Court: Texas Court of Criminal Appeals

38 S.W.2d 589

PIERCE et al. v. STATE.

No. 13815.

Court of Criminal Appeals of Texas.

March 11, 1931.

Rehearing Denied May 13, 1931.

Commissioners' Decision.

Appeal from Criminal District Court, No. 2, Harris County; Langston G. King, Judge.

Sam Pierce and F. W. Smith were convicted of accepting a bribe, and they appeal.

Affirmed.

Heidingsfelder & Kahn, of Houston, for appellant.

O'Brien Stevens, Cr. Dist. Atty., Frank Williford, Jr., Asst. Dist. Atty., and E. T. Branch, all of Houston, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is accepting a bribe; the punishment, confinement in the penitentiary for two years.

It was charged in the indictment that appellants were deputy constables, and by appropriate allegations it was charged that they accepted a bribe from E. Sallie. A conspiracy was not alleged. Appellants moved to quash the indictment on the ground that they were improperly joined in a single indictment in the absence of allegations charging a conspiracy. They take the position that there could be no joint liability for failure to discharge a statutory duty, and that their acceptance of the bribe could not be a joint act inasmuch as each was responsible for his own official dereliction. We deem the contention untenable. A private person is also individually responsible for his acts, but he may be charged as a principal offender with another or others in the commission of an offense. It is not necessary to allege the acts which constitute the accused a principal. An indictment charging two or more with the commission of an offense need not contain an allegation that they acted together. Branch's Annotated Penal Code, § 676; Watson v. State, 28 Tex. App. 34, 12 S. W. 404; Loggins v. State, 32 Tex. Cr. R. 358, 24 S. W. 408.

Appellants' motion to quash the indictment was also based on the ground of duplicity, their contention being, first, that each appellant was guilty of a separate offense in that each was individually responsible for his own act in accepting a bribe, and, in the second place, that the indictment, in charging that the bribe was paid to appellants in specified sums on several different occasions, sets forth separate and distinct offenses in a single count. It is alleged in the indictment that the sum agreed upon between the parties was $500 in money, and that on the 11th day of December, 1929, $50 was paid by Sallie to appellants as part payment of said sum, and that on the 12th day of December of the same year the further sum of $200 was delivered to appellants, as part payment of said sum of $500. The remaining payments were appropriately set forth. "Duplicity" is defined by Mr. Branch, in his Annotated Penal Code, § 506, as follows: "Duplicity is the joinder in the same count of two or more separate offenses, or the joinder in the same count of two or more phases of the same offense where the punishment is different." See Hickman v. State, 22 Tex. App. 441, 2 S. W. 640; Hammons v. State, 29 Tex. App. 445, 16 S. W. 99. We understand from a reading of the indictment that one offense is charged, that is, the acceptance of a bribe by appellants in the sum of $500 for which E. Sallie was released from custody and no charges filed against him after he had been arrested by appellants for the offense of possessing a still and equipment for manufacturing intoxicating liquor. It might be that the indictment charges several ways by which the offense was committed. Again we quote from Branch's Annotated Penal Code, § 508, as follows: "Where several ways by which an offense may be committed are set forth in the same statute, and they are embraced in the same general definition and are punishable in the same manner and to the same extent, and are not repugnant to each other, they are not distinct offenses but different phases of the same offense, and may be charged conjunctively in the same count." Some of the cases cited in support of the text are Nicholas v. State, 23 Tex. App. 317, 5 S. W. 239; Comer v. State, 26 Tex. App. 509, 10 S. W. 106; Prendergast v. State, 41 Tex. Cr. R. 358, 57 S. W. 850; Holman v. State (Tex. Cr. App.) 90 S. W. 174; Johnson v. State, 75 Tex. Cr. R. 177, 171 S. W. 211, 212. We deem the rule above quoted applicable to the present indictment.

Appellants contend that the accomplice, E. Sallie, was not sufficiently corroborated. Appellants secured a search warrant and went to Sallie's place for the purpose of searching for a still and intoxicating liquor. Having discovered a still near Sallie's premises, they placed him under arrest, destroyed some of the equipment for manufacturing whisky, and started to take Sallie and the still to the office of the magistrate for the purpose of filing a complaint against appellant. These facts were uncontroverted. Appellants admitted that they found the still, placed it in the car, and took Sallie into custody. Accomplice witness Sallie testified that he had been manufacturing and selling intoxicating liquor and that upon the occasion of the search he was arrested by appellants. His testimony was further, in substance, as follows: After being arrested, he went with appellant Pierce to Johnny Hilderbrandt's home for the purpose of getting Hilderbrandt to accompany him to town and execute bond for him. Appellant Pierce remained in the car while Sallie went to the house and talked to Johnny Hilderbrandt and Charlie Hilderbrandt. The officer told the Hilderbrandts where to go to get the bond. Appellants and Sallie proceeded toward town in Sallie's car. Sallie's father and the constable followed them. The Hilderbrandts drove ahead of the officers. On the way to town appellants...