Aaron v. State

275 S.W.2d 693, 161 Tex. Crim. 156, 1954 Tex. Crim. App. LEXIS 2081

• Court: Court of Criminal Appeals of Texas
• Decided: November 17, 1954
• Docket: 27113
• Status: Published

Opinions

BELCHER, Judge.

Appellant was convicted for offering a bribe to Roy Hillin, Sheriff-elect of Crosby County, the indictment alleging that appellant offered Sheriff-elect Hillin $1,500 per month to thereby influence and induce him to omit to arrest or suppress violations of the local option liquor laws in Crosby County by seven men to be named by appellant; the punishment, 2 years in the penitentiary.

It was stipulated that Crosby County was a dry area.

It was stipulated that Roy Hillin was elected sheriff of Crosby County at the general election on November 7, 1950, and took his oath of office as sheriff of said county on January 1, 1951.

Roy Hillin, Sheriff of Crosby County, testified that he first met appellant, who was alone and driving his automobile, about November 10, 1950, on a public road in Crosby County, at which time appellant told him that he wanted to name five bootleggers to operate by handling intoxicating liquor in Crosby County and would pay him $1,000 on the first of each month after he qualified as sheriff in 1951 if he would “not arrest them or nothing. Just let them have their own way here with the bootlegging in Crosby County”; that he told appellant he could not do that; and then appellant said that he wanted to talk to him about the matter again before Christmas.

Sheriff Hillin further testified that appellant came to his home at 7 a.m. on December 16, 1950, and asked if he had made up his mind about what he was going to do about the bootleggers; that he replied that he would not wilfully let anyone violate the law and that the appellant then raised his original offer to $1,500 a month to let him operate seven bootleggers delivering and selling intoxicating liquor in Crosby County “and you not arrest them or bother them in any way”; that he refused such offer and asked appellant to leave his place which he did.

Appellant, while testifying in his own behalf, stated that during the months of November and December, 1950, he was ill and unable to drive an automobile; that he did not see Sheriff Hillin on November 10, 1950, and did not see him at his home near Crosbyton on December 16, 1950, and at no time made Sheriff Hillin an offer of money for protection in the handling of intoxicating liquor by bootleggers to be named by him in Crosby County; and that he was in Amarillo on December 16, 1950. Appellant offered considerable evidence showing his physical condition and his whereabouts on the days in question which supported his testimony.

The jury resolved the disputed issue of fact against the appellant, and we find the evidence sufficient to support its verdict.

By Bill of Exception No. 2, appellant contends that the court erred in overruling his original and supplemental motion for a change of venue.

The record shows that both parties announced ready for trial on November 23, 1953, and that appellant orally requested that the members of the jury panel be examined separately until a 32-man panel was qualified from which the jury to try the case would be selected, which request was, by the court, granted.

These motions for change of venue were made and filed after both parties had announced ready for trial and thirty jurors had been held qualified by the court from which the trial jury was to be chosen. The state controverted these motions for change of venue.

We have carefully read the voir dire examination of the twelve jurors who tried this case and do not find therefrom that any prejudice against the accused or any bias for the state’s principal witness found its way into the jury box. This we think, in a case of this nature, is the fairest test of whether the venue should have been changed. Lopez v. State, 158 Texas Cr. R. 16, 252 S.W. 2d 701.

Appellant’s motion for change of venue, as we understand it, is based upon Art. 563, Vernon’s Ann. C.C.P., which provides that when an unsuccessful effort has been once made to procure a jury for the trial of a felony, and all reasonable means have been used, if it be made to appear to the court by the affidavit of the attorney for the state, or any other credible person, that no jury can probably be had in that county, the court may order a change of venue, and cause the reasons therefor to be placed upon the minutes of the proceedings.

The record shows that this is the first time this case had been called for trial, therefore no unsuccessful effort had once been made to procure a jury. 12 Texas Jur. 472, Sec. 178.

Appellant contends that the court erred in overruling his motion to quash the regular panel and the list of talesmen summoned, which motion was filed after thirty prospective jurors had been selected from which the trial jury was to be chosen, because of their prejudice and also their bias toward the state’s witness, Roy Hillin, and the improper manner of summoning the talesmen by the officers.

Under the terms of Arts. 641 and 608, C.C.P., a challenge to the array cannot be made to a jury selected by jury commissioners. It was not shown that the officers acted corruptly, or that they performed their duties with any intention of selecting talesmen prejudiced against appellant or for the state. Mills v. State, 123 Texas Cr. R. 395, 59 S.W. 2d 147. Thus, no error is shown.

Appellant contends that the trial court erred in failing to quash the indictment upon the ground that it should have alleged a tender of something of value at the time the offer was made or an allegation of an ability to do so.

Under the terms of the statute defining this offense, it is not necessary to allege a tender of anything of value at the time of the alleged offer or to allege an ability to do so at such time. The offense is complete when the offer is made under the facts here charged in the indictment. Art. 158, P.C.

Appellant complains of the court’s refusal to give his special requested charge in which he would have the jury instructed as to the meaning of the term “bribe,” as used in the court’s charge. This requested charge was, in substance, submitted in the court’s main charge, except for the following:

“* * * The actual tender of a bribe is not necessary to perfect the offense of offering a bribe, as contemplated by the statute. Any expression of an ability to produce a bribe, as a gift to the official to induce him to do an illegal act or refrain from performing his official duty is all that is necessary to perfect the crime charged in the indictment.”

It is not necessary that a showing be made of ability to perform by the person making the offer to constitute the offense here charged. This offense is complete when the offer is made. Art. 158, P.C. We perceive no error in refusing this instruction.

Finding no reversible error, the judgment of the trial court is affirmed.

Opinion approved by the Court.