Bigham v. State , 141 Tex. Crim. 332 ( 1941 )

Appellant has filed a very comprehensive motion for a rehearing presenting his contention in an able and logical manner in which he strenuously insists that there is not any evidence, direct or circumstantial, corroborating the accomplice witness, J. R. Kelly, as to material and essential facts constituting the offense charged. It will be noted from the original opinion herein that the State made a complete case against appellant by the testimony of Kelly. Therefore, if there is any other evidence, either direct or circumstantial, which tends to connect appellant with the offense charged, then the measure of proof required by law has been met by the State. Let us see if there is any evidence which tends to identify appellant as the man who was in Kelly's office at the time in question and received from Kelly two hundred and fifty $20.00 bills. The uncontroverted evidence shows that appellant was, by the Railroad Commission, appointed supervisor of the oil fields in that area of the State; that his duties were to check the potential production as well as the amount of oil actually produced by each well in that area and make a report thereof to the Commission. Mrs. Silberman testified that on the morning in question, she had occasion to take down a conversation which occurred between Mr. Kelly and a man who answered to the name of Bigham in Mr. Oles' office, which is one office removed from that of Kelly; that she listened to the conversation with ear 'phones; that she heard what was said in the other room; that she took down the conversation in shorthand and later transcribed her notes with a typewriter; that she had a copy thereof and it was correct. She did not know the appellant but assumed that it was he because the young man who answered the door said, "Good morning, Mr. Bigham," and the person so addressed replied, "Good morning." If it had been anyone else she guessed he would have said, "This is not Bigham." Here we have a man coming to the door leading into Kelly's office. He is addressed as Bigham and no denial was made by him that such was his name. Does this tend to show that it was Bigham who came to visit Kelly at the latter's office? We think so. This, however, is not the only fact which tends to identify him and connect him with the offense. Bearing in mind that appellant was appointed by the Railroad Commission as supervisor of crude oil production for that area of the State, we find from the conversation at the time in question that they discussed the oil that had been and was being produced by the Shasta Oil Company at Midland, Texas, of which Kelly was in charge. During the discussion Kelly inquired, "How much would the allowable be changed if they were changed?" The other person replied, "They would be cut down a good deal, more than half." The conversation further shows that Kelly inquired as to what would cause the change. The reply was:

"Nothing in the world unless some one goes out there and retests the wells. * * * No one would want them retested but the Austin office and they (meaning the Railroad Commission) would refer it to me. * * * I am in charge of this West Texas district, and it's up to me to satisfy myself."

Then Kelly asked if he could pay him $1,000.00 then and $1,000.00 per month, stating that he disliked to pay out $5,000.00 and then the next month be cut back. This was not acceptable to the party who was talking to Kelly. Finally Kelly said, "Here are two hundred and fifty $20.00 bills. Count it out to be sure." The reply was:

"No, just leave it there. I do not want to fool with it in here. If there is anything wrong with it, I will let you know. If anything happens, you get in touch with me and you will get your money back."

We have purposely refrained from setting out the entire conversation because it appears in full in our original opinion, but enough of it is stated to warrant the conclusion that the person who was talking to Kelly was the person who checked the production of the oil wells in that area of Texas, and saw to it that the wells were not producing more than that provided by the proration order of the Railroad Commission. Who was this man? Bigham. Consequently, the appellant's identity as the man who was in Kelly's office and the man who received from Kelly $5,000.00 in twenty-dollar bills as a bribe not to cut the production of the oil wells of the Shasta Oil Company is sufficient to corroborate the testimony of Kelly. Corroboration, to be sufficient, need only be as to some matter that legally tends to show appellant's guilt. The corroborating evidence may be circumstantial as well as direct. See Minor v. State, 299 S.W. 422, 108 Tex.Crim. R.; McCue v. State, 75 Texas. Cr. R. 137, 170 S.W. 280.

We have given the motion for rehearing and every contention urged therein our most careful consideration but see no reason for receding from our conclusion as expressed in our original opinion.

The motion for a rehearing is overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.