Smith v. State

• Decision Date: 06 April 1921
• Docket Number: (No. 5952.)
• Citation: Smith v. State, 229 S.W. 523, 89 Tex.Cr.R. 145 (Tex. Crim. App. 1921)
• Parties: SMITH v. STATE.
• Court: Texas Court of Criminal Appeals

Page 523

229 S.W. 523

SMITH v. STATE.

(No. 5952.)

Court of Criminal Appeals of Texas.

April 6, 1921.

Appeal from District Court, Houston County; John S. Prince, Judge.

H. S. Smith was convicted of bribery, and he appeals. Reversed and remanded.

Adams & Adams, of Crockett, and Garrison, Pollard, Morris & Berry, of Houston, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

MORROW, P. J.

Conviction is for bribery; punishment fixed at confinement in the penitentiary for a period of four years.

It was charged that appellant sought to bribe the County Superintendent of Public Schools to omit the performance of his official duty. See article 174 of the Penal Cole.

Certain negroes were applicants for teachers' certificates. The law made the County Superintendent their custodian and charged him with the duty of forwarding them to the State Superintendent of Education. See Vernon's Civil Statutes, arts. 2786 and 2787. During the examination an agreement was made between the County Superintendent of Public Schools and the appellant and his coconspirator Robinson to the effect that the examination papers would be delivered to appellant so that he might substitute others in their stead. There was difficulty in agreeing upon the procedure. The suggestion of the Superintendent as to the method of exchange was adopted, and pursuant thereto he took a bundle of papers to the home of a negro woman at nighttime and received in exchange therefor certain money in an envelope which by prearrangement he had furnished. We quote from his testimony:

"I carried this bundle to the house and left them with Robinson (Robinson was a confederate of the appellant), and Robinson handed me this envelope which was lying on the floor when I called his attention to it. Before handing him the bundle I stepped to where I could use the light that was on the inside of the building to see what was in the envelope, and I found it to be money, and I handed him the package and left."

The sheriff arrived at the scene of action by a different route from that taken by the Superintendent. The sheriff saw the exchange of papers, went into the house, arrested the appellant, Robinson, and another negro who was there. According to the sheriff, they were all working with papers; and the bundle which the Superintendent had furnished was hidden behind the bed.

Upon the trial appellant sought to have the jury so instructed that they might determine whether the County Superintendent was an accomplice or not, and informed touching the necessity of corroboration in the event he was an accomplice. See article 801, Code of Crim. Procedure. The rule of law, as stated in Corpus Juris (volume 16, p. 678, § 1370), is as follows:

"Where the facts with respect to the participation of a witness in the crime for which defendant is on trial are clear and undisputed, it is for the court to determine whether or not he is an accomplice; but the question of accomplicity is one to be decided by the jury where, although there is evidence tending to connect the witness with the crime, the facts are disputed or susceptible of different inferences.

"Where the complicity of the witness is admitted, but the prosecution claims that he was merely a feigned accomplice acting with a view to the detection of the real criminals, it is for the jury to determine whether the witness was an actual or only a feigned accomplice."

Numerous decisions from this and other states are found in the notes. Among those supporting the general rule are Preston v. State, 41 Tex. Cr. R. 300, 53 S. W. 127, 881; Williams v. State, 33 Tex. Cr. R. 128, 25 S. W. 629, 28 S. W. 958, 47 Am. St. Rep. 21; Spencer v. State, 52 Tex. Cr. R. 289, 106 S. W. 386. Among those agreeing with the text touching a feigned accomplice are Guyer v. State, 37 Tex. Cr. R. 489, 36 S. W. 450; Wright v. State, 7 Tex. App. 574, 32 S. W 599; People v. Bolanger, 71 Cal. 17, 11 Pac. 799; State v. McKean, 36 Iowa, 343, 14 Am. Rep. 530; Saunders v. People, 38 Mich. 218. The cases last referred to and others illustrate the correctness of the rule. See Ruffin v. State, 36 Tex. Cr. R. 566, 38 S. W. 169; Dever v. State, 37 Tex. Cr. R. 396, 30 S. W. 1071.

The courts have had many occasions to deal with the subject of feigned accomplices. See Ruling Case Law, vol. 1, p. 159. The element which distinguishes them from real accomplices is the absence of criminal intent. Where the evidence is without conflict and susceptible of no inference, other than that of innocent intent, there is no issue of fact for the jury, but the witness, as a matter of law, is not an accomplice. The propriety of officers engaging in transactions of the character in question has been criticized. Holding in the case of Guyer v. State that reversible error was committed in failing to permit the jury to pass upon whether the sheriff, who testified as a witness, should require corroboration as an accomplice, the court said:

"We can conceive of no conduct more reprehensible on the part of officers, whose duty it is to prevent crime, and `nip it in the bud,' instead of so doing, to lend aid and encouragement in carrying it out. As was said by Marston, Judge, in Saunders v. People, 38 Mich. 218: `Where a person contemplating the commission of an offense approaches an officer of the law, and asks his assistance, it would seem to be the duty of the latter, according to the plainest principles of duty and justice, to decline to render such assistance, and to take such steps as would be likely to prevent the commission of the offense, and tend to the elevation and improvement of the would-be criminal,...