Savage v. State

170 S.W. 730, 75 Tex. Crim. 213, 1914 Tex. Crim. App. LEXIS 454

Opinions

Appellant was indicted for offering to bribe the witness J.M. Barkley in a case wherein Frank Engman was defendant charged with violation of the local option law in Potter County.

The indictment charges a conspiracy and acting together between Savage and others. Barkley testified practically that appellant, Thomas, Engman and Plemons offered to bribe him as a witness in the case to disappear from the country and not testify. The indictment alleges also, after setting out the subpoenas alleged to have been served upon Barkley, that they were served by a deputy sheriff named S.D. Riddings. The statement of facts shows that Steve Riddings was introduced as a witness. The only question asked him was as to his name. The contention is made that inasmuch as the indictment charges that the subpoena was served by S.D. Riddings, that the subpoena ought to have been introduced in evidence before the jury, and that proof also should be made that Riddings served the papers as charged. Whether it was necessary or unnecessary to set out the subpoenas in the indictment, and the further fact that S.D. Riddings as an officer served the process upon Barkley as a witness, it should have been proved to meet the allegations in the indictment. The subpoenas were not introduced nor was S.D. Riddings asked any questions in reference to the matter so far as the statement of facts is concerned or bill of exceptions. This was error.

The first bill of exceptions recites that the witness Barkley was permitted to testify to a conversation occurring between himself and appellant at the Elks hotel subsequent to the transaction set out in the indictment, in which he states that appellant offered to pay him some money in connection with this and other cases in which Engman was defendant. Many objections were urged, among others, that it was not res gestae and an independent transaction and could not be introduced to show system or intent. There are quite a lot of cases cited showing that testimony of this character could not be introduced on the question of system, and also quite a number of cases showing that the testimony under the facts of this case could not be used to show intent on the part of Savage. It could not be introduced for these purposes. If Savage offered to bribe in the manner indicated in the indictment, there was no question of his intent, because the facts shown by the witness made the case complete so far as his testimony could make it. He says he was offered and received money to absent himself from the country, and not only so but did leave, and that Plemons and Scott went with him in the direction of Tucumcari, New Mexico. He says Plemons bought his ticket from Amarillo to El Paso and gave him in addition money amounting to thirteen dollars and some cents. If this money was paid to bribe Barkley there was no issue as to intent. The facts carry the intent with it in the consummation of the act. The subsequent offers to bribe could not be used for that purpose in this case. Extraneous crimes may be used to develop intent or connect the party with the transaction on trial, or to develop the res gestae or to show system in a proper case. This evidence does not bring the case within any of these rules. It could not be used to corroborate Barkley, because Barkley was an accomplice and could not corroborate himself, and no other witness testified to the fact that the conversation ever occurred. If it was admissible at all, it was upon the theory that the conversation between the defendant and Barkley was with reference to the case here charged. The contention seems to be that this is admissible under the case of Carden v. State, 62 Tex.Crim. Rep.. The writer, however, is of the opinion that the testimony was not admissible under that authority under the facts of this case. The majority are of the opinion the evidence was admissible.

Another bill recites that C.G. Thomas, one of the defendants, went before the grand jury and made a written statement in which he exculpated himself entirely from having anything to do with the bribery, but made statements criminative of his co-defendants. This was made after the transaction was complete on which the indictment was based and by a party who is charged with the same offense as the alleged co-conspirators. Many objections were urged to this testimony, which ought to have been sustained. It had no place before the jury. The statement of a co-conspirator inculpating other co-conspirators made after the transaction can not be used in evidence against anybody except the party making the statement, therefore it could not be used against Savage and Plemons and should not have been admitted. The statement was exculpatory entirely of the maker of the statement, and was an indirect way of getting before the jury the statement of Thomas before the grand jury stating matters upon which the State sought to make its case against the others, at least the statement of Thomas if true was inculpatory of them. The testimony could not thus be used, and was not admissible. We make the further statement that this was original testimony introduced by the State, therefore the question of impeachment does not arise. After the case on the facts was completed, the district judge instructed the acquittal of Thomas, and then withdrew Thomas' written statement above mentioned from the consideration of the jury. Many opinions have been written, and it would seem like a sufficient number, to the effect that illegitimate testimony can not be introduced and then controlled by the charge of the court. It being clearly inadmissible against Savage, the instruction of the court, first, that it could only be considered against Thomas, and then subsequently withdrawing it entirely from the jury, did not cure the error. It is of sufficient importance to reverse this judgment. The court makes this statement qualifying the bill: "The statement complained of in this bill, when admitted in evidence, was admitted solely as to defendant C.G. Thomas, who made the same, and the jury were then specially instructed by the court not to consider it as any evidence and for any purpose as against the other defendants. After the testimony was closed the court in the fifth paragraph of his charge withdrew this statement altogether from the jury." The court recognized by this statement that it was error to introduce this testimony against the other two parties and that it could only be used against Thomas. It entirely exculpated Thomas.

There are quite a number of exceptions to the court's charge properly taken before being read to the jury and verified by the district judge. There are quite a number of special requested instructions refused by the court, which were offered in proper time, as verified by the judge. All of these questions are properly presented for adjudication. The court submitted the question to the jury as to whether Barkley was an accomplice or not. Appellant insists the court should have instructed the jury positively and directly that Barkley was an accomplice. Under this record this contention is correct. That Barkley was an accomplice is not a debatable issue under the facts. He testified, in substance, that they offered him money to leave the country, going into detail as to the transaction; that Plemons bought the ticket at Amarillo, paying $16.95 for it; that they would carry him in an auto to some point on the railroad leading from Amarillo to El Paso, and pay him in addition $23.05. That they reached the designated point where he was to take the railroad for El Paso and a controversy ensued between him and Plemons as to the amount of money he was to get, Plemons contending that he was to have ten dollars of the forty for conveying Barkley to this point on the railroad, and Barkley contending that he was to have the entire forty dollars, resulting, as Barkley says, in his getting $13.45 and the railroad ticket, $16.95, and Plemons retaining ten dollars. He then got into communication with the sheriff at Amarillo over the telephone, who came after him, as well as Plemons and Thomas, who had been in the auto with him to this point. They were all carried back to Amarillo next morning, and this prosecution followed. The evidence is further to the effect if there was any bribery at all, that he solicited the offer of the bribe and continuously so until it was offered and then he accepted it. He testifies that he was working on this matter in connection with the sheriff's department and the district attorney. That he had plead guilty to passing what he called "bad checks" and was working at the courthouse paying the fine. That he had other cases and trouble with the courts some of which were pending. It is unnecessary to repeat all of the statements showing the relation of this witness to the case. It is useless for the court to assume, under the circumstances and statements as made by this witness, that there was any question or issue as to his being an accomplice. The authorities in Texas are so clear and positive and uncontradictory upon this question that it ought not to be debatable. Under this witness' evidence he went into a scheme to work up a case against these parties at the beginning in order to get them into trouble, and that having done so he accepted the money and railroad ticket and agreed to leave the country and did start to El Paso and later on did in another instance leave the country, and he testifies that appellant Savage sent him money to different points in Texas, California and Arizona to keep him out of the country in the latter instance. There could be no question that Barkley was an accomplice, made so by his own testimony. The court should have instructed the jury positively that he was an accomplice. In this statement we are not going into the defensive side of the evidence. They deny the whole transaction and say they never paid him any money, and Plemons testified in regard to railroad ticket that Barkley came to him, Plemons, and gave him twenty dollars and asked him when at the depot to buy him a ticket to El Paso. That Barkley knew and had heard them talking about the fact that he, Plemons, and his brother-in-law, Thomas, were going to Tucumcari, New Mexico, to sell an automobile, and that they were working on it that particular morning, and Barkley came and asked them to carry him along, which they agreed to do, and he had occasion to go to the depot for some purpose, or at least went to the depot, and Barkley asked him to buy a ticket for him with the twenty dollars given him by Barkley, which he did and brought him back $3.05. The controversy about the money when they finally separated after leaving Amarillo grew out of the fact that he, Plemons, had loaned the witness Barkley money theretofore, and in paying him this money he wanted Barkley to pay him what he owed. This Barkley declined to do, so he finally gave Barkley the $3.05, and that was the end of the transaction from Plemons' viewpoint. But those are matters it is unnecessary here to discuss. The question here is, the attack on the court's charge because it failed to instruct the jury that this man Barkley was an accomplice. A discussion of the defendant's side of the case is unnecessary to an elucidation of that point, as their testimony was purely exonerative. The court should have charged the jury that Barkley was an accomplice. Also in this connection, the court charged the jury that they could not find the defendants guilty upon Barkley's testimony, "unless you first believe the testimony of the said J.M. Barkley is true, and that it shows, or tends to show, that the defendants, or some one or more of them, is guilty as charged in the indictment; and still you can not convict the defendants, or any of them, unless you further believe that there is other evidence in this case, outside of the testimony of said J.M. Barkley, tending to connect the defendants, or some one or more of them, with the commission of the offense charged in the indictment." There are quite a number of exceptions taken to this charge, which should have been sustained. That portion of the charge given by the court to the effect that Barkley's testimony must tend to show that the defendants are guilty, is in contravention of all the decisions where that question has been adjudicated. For collated cases see Branch's Criminal Law, sec. 320. These have been collated so often in the decisions we deem it unnecessary to do more than refer to the cases as collated by Mr. Branch. The charge is not sufficient when it tells the jury that the evidence of the accomplice must tend or tends to show guilt. The same objection is urged to the general definition of accomplice as well as in the application of the law to the case. The objection to the charge just quoted is where the court is applying the law to the case. In the general definition he uses the same language, that is, that the jury must first believe the accomplice's evidence to be true, and that it shows or tends to show defendant's guilt. That portion of this charge is also criticised which informs the jury that the accomplice's testimony would be sufficient if it shows or tends to show that the defendants, or some one or more of them is guilty as charged. The court nowhere limits the application of the law to the particular defendant who the jury might find guilty under the circumstances indicated. It would seem from the charge as given if the jury should find that the accomplice was corroborated, or there was evidence tending to corroborate him, or that his testimony tended to prove guilt, they could find them all guilty under those circumstances if the jury should come to the conclusion that some one of them was guilty. Applying the law to the case, after giving the general definition of principals and directing an acquittal as to Thomas, he then instructed the jury that if they should believe beyond a reasonable doubt that the defendants, Frank Engman, Z.Z. Savage and Bluford Plemons, acting together, on or about the third day of April, 1913, unlawfully, wilfully and corruptly offered to bribe the witness J.M. Barkley in the Frank Engman case then pending in that court, to disobey subpoena, they would convict. In charge previously quoted, with reference to accomplice testimony, he instructs them that if they should believe the testimony of the accomplice, and that it connected or tended to connect the defendants with the case, then they might find all of them guilty. It takes no reasoning to show that this charge is clearly erroneous. The court should have pointedly instructed the jury that they could only convict the man as to whom they might find the testimony sufficient, and not to convict all of them unless they found the evidence sufficient as to all of them, and that the accomplice was corroborated as to all of them. This is perhaps a sufficient discussion of the charge on indicated errors. These were pointed out by the defendant not only in exceptions to the charge before it was read to the jury, but in bills of exceptions, and special charges were asked covering these matters, which were refused by the court.

Another special charge was asked with reference to the transaction that Barkley says occurred between himself and appellant Savage at the Elk hotel. In that conversation Barkley testified that Savage offered him money. They had a controversy as to the amount of it, but finally agreed on something like one thousand dollars if he would leave the country. He then went into detail as to how the matter was to be handled, and that he did leave the country and went away, and Savage sent him money. The special charge requested in this connection, which was not given by the court and no similar charge given, is as follows: "The witness John Barkley testified before you in regard to other transactions with some of the defendants and other alleged offers of bribes. Now, in regard to such other and subsequent transactions you are instructed that before you can consider them for any purpose whatever you must first find from the evidence that such transactions took place as testified to by Barkley, and further, that such transactions in themselves constituted also the offense bribery as that term is defined in the court's charge, or at least constituted or were an offer to do away with evidence in this case, and unless you do find from the evidence both that such other alleged transactions are true and also that they constituted such offense, or one of them, you will not consider same for any purpose." They also asked special instructions which were refused and none of similar import given by the court, that before the jury could consider the transactions testified to by Barkley subsequent to the filing of the indictment in this case for any purpose, they should find from the evidence that such transactions actually took place as testified to by Barkley, and further that such transactions in themselves constituted also the offense of bribery or at least constituted an effort to do away with evidence in this case, for the reason, that testimony of subsequent transactions to an indictment are in no event legal testimony to be considered by the jury unless the jury first finds the testimony to be true and that the transactions actually took place and that same constituted a penal offense, etc. Other portions of the charge also brought to the attention of the court and asked that the jury be instructed with reference to the corroboration of Barkley in reference to subsequent transactions, upon the theory that Barkley being an accomplice, could not corroborate himself not only as to this case but as to subsequent matters that he testified occurring between himself and other parties. We are of the opinion these charges should have been given, or at least the principle involved in them should have been given to the jury fully and fairly. Barkley being an accomplice could not corroborate himself by any inculpatory evidence that he might give in connection with bribery. He was a party to it and organized it from beginning to end under his own testimony, and whatever other conversation occurred with reference to the matter between him and one of the parties after the alleged design, necessarily implicated him as much as it did either of the defendants to whom he may have talked. The jury may have been impressed with the fact that the subsequent statements and conversations were corroborated by reference to the original transaction. Of course, the courts and lawyers would not so understand it, but the jurors are not versed in these matters, and this phase of the case should have been carefully guarded so that the testimony might not be appropriated to an illegal or unlawful purpose.

It is contended the evidence is not sufficient to support the conviction. The writer is disposed to agree with the contention. Barkley made himself a principal in the matter from the beginning. He originated and helped originate and brought about the scheme by which he was to accept the bribe. We are of the opinion that so far as the facts are concerned he was not corroborated by any fact or circumstance of sufficient importance to show that appellant Savage gave him any money to convey him out of the country in the original transaction. Barkley undertook to so testify, but nobody else does, and the testimony shows that he had twenty dollars with which the ticket was bought, and he did not get it from Savage, and so far as the testimony goes no witness shows that Barkley received money from Savage. The writer is not willing to see a man incarcerated in the penitentiary on this character of testimony. That Barkley was an accomplice is shown by his own testimony, and he is not corroborated, so far as I understand the facts, in any manner that would tend to connect appellant with paying him money or running him out of the country.

The judgment is reversed and the cause remanded.

Reversed and remanded.