Savage v. State , 75 Tex. Crim. 213 ( 1914 )

The indictment was returned by the grand jury charging appellant, Frank Engman, Bluford Plemons and C.G. Thomas with offering to bribe one J.M. Barkley, who had been summoned to appear as a witness against Frank Engman in a case then pending against him, to leave the State and not appear as a witness against said Engman. We will not undertake a full statement of the case, as we have concurred in a reversal of the case, but not agreeing to all the holdings of Judge Davidson, we will state our views on such questions.

The record discloses fully that Barkley had been legally and duly summoned as a witness, therefore the failure to introduce the subpoena would not present error. When this fact was testified to by a number of witnesses, and no evidence offered to the contrary, this fact was sufficiently proven.

The testimony of the witness Barkley as to conversations had between him and defendant Savage at the Elks hotel, we think admissible under all the rules of law. In the first place, in cross-examination of Barkley, the defendant brought this matter in the record. The testimony offered by the State in its direct testimony related solely to the offer to bribe as charged in the indictment, the forty-dollar transaction. On cross-examination of the witness Barkley the defendant, to destroy his credit as a witness, asked Barkley if he had signed Savage's name to two checks. Barkley admitted that he had done so. Then the State was permitted to show on redirect examination of the witness how he came to sign Savage's name to these two checks, and the witness testified that after the indictment had been returned charging appellant with the offer to bribe him, that Savage came to his room and offered and agreed to pay him $1000 to leave the State and not appear as a witness against him in this bribery case and other cases pending; that he agreed to accept it, and did leave the State, and in accordance with instructions from Savage had signed appellant's name to these two checks. This was merely in explanation of why he had signed appellant's name to the checks, and as appellant had elicited that fact, it certainly was permissible for the State to show that he had done so by the instructions of the man whose name he signed to the checks. But the testimony was admissible for another reason and on another ground. Savage had been indicted for an alleged attempt to bribe Barkley. This testimony was in reference to the offer of $1000 to leave the State and not testify against him in the bribery case then pending — this case of which he was convicted. It has always been held admissible to show the flight of the person charged with crime, or a tampering with the witnesses for the State by him as a circumstance tending to show his guilt. As said by Mr. Branch in his work on Criminal Law: "If defendant authorized or was present when money was offered or paid a witness to leave, or himself attempted to or did tamper with the witness, it is not error to admit proof of such fact." Branch's Criminal Law, sec. 862; Clark v. State, 43 S.W. Rep., 522; Ezell v. State, 71 S.W. Rep., 283; Booth v. State, 52 Tex.Crim. Rep.; Parks v. State, 46 Tex.Crim. Rep.; Wharton's Crim. Ev., sec. 923, 10th ed.

The record discloses that C.G. Thomas was charged with the others as a principal. He had appeared before the grand jury and made a voluntary statement. This was reduced to writing and signed by him. All four defendants elected to be tried at the same time — no severance being requested or demanded, — and all four were not only jointly indicted but jointly tried. In making its case, the State introduced this voluntary statement of Thomas as evidence tending to show his, Thomas', guilt — the court stating at the time that it was admitted only as evidence against Thomas, and instructed the jury that it could not be considered as any evidence against the other three defendants. Under all the authorities this evidence was clearly admissible against Thomas, who was on trial. At the close of the testimony the court did not deem the evidence sufficient to authorize the conviction of Thomas, and withdrew this statement made by Thomas, and instructed the jury it could not be considered for any purpose. We do not think the record discloses that the district attorney was guilty of improper conduct in the premises. Certainly there is no evidence that he acted in bad faith. Throughout the trial his efforts seem to have been in earnest in an effort to adduce evidence to convict all four defendants, Thomas as well as the others, and if, in the opinion of the trial judge, at the close of the testimony, the testimony did not authorize the conviction of Thomas, it does not show or tend to show improper conduct on the part of those prosecuting officers. It shows only a difference of opinion as to the strength of the testimony adduced on the trial. Thomas being on trial at the time it was offered, and the testimony, with the other evidence, having a tendency to show his guilt, there was no error in admitting it at the time it was admitted, limited as it was by the court.

The opinion of Judge Davidson also holds that the court erred in submitting to the jury the question of whether or not Barkley was an accomplice — that he should have peremptorily instructed them that Barkley was an accomplice. In this I do not concur. By this record it is a question of whether or not Barkley is in law an accomplice in so far as the forty-dollar transaction is concerned, on which he was being prosecuted in this case. According to this testimony, he was approached by the defendants and offered forty dollars to leave and not testify against Engman in cases then pending against Engman. That this forty dollars was put up by Savage and thirty dollars thereof paid to him by Plemons. He says that when he was approached with the proposition by the defendants he reported the matter to the county attorney and the sheriff; that they instructed him to accept the money, and agree to leave, and then to bring the money to them. He says he did at once report the matter to the sheriff and county attorney, delivered the money to them, and the defendants were at once arrested by the sheriff; that he had no idea of leaving or accepting the money, but only took it at the instigation of the officers. If this is true, this did not make him an accomplice in law. This question is discussed by Judge Davidson in Bush v. State,68 Tex. Crim. 299, 151 S.W. Rep., 554, and the true line of demarcation is there marked out — if one originates the crime or is instrumental in its initiation, even though a detective or other officer, he would be an accomplice; if, however, he is approached, and all his steps are taken with a view of detecting crime, he is not an accomplice to such crime, and we can agree to no other rule. This question was fully discussed in Minter v. State, 70 Tex.Crim. Rep., 159 S.W. Rep., 286, and Holmes v. State, 70 Tex.Crim. Rep., 156 S.W. Rep., 1172, and authorities collated, and to which we here refer. Defendants in their testimony do not say they were solicited by Barkley to offer a bribe, but they deny all knowledge of the matter, and certainly Barkley's testimony and the other testimony does not do more than raise the question that he may have been an accomplice, which question it was proper to submit to the jury for their determination, and this the court did.

Neither do we think the charge of the court is subject to the criticism that if they should believe one guilty they must find all the defendants guilty. The court instructed the jury: "Where several defendants are tried together, as in this case, the jury may convict such of the defendants as they may believe from the evidence beyond a reasonable doubt are guilty and acquit the others." The jury in their verdict show they so understood the law, for their verdict is: "We, the jury, find the defendants Bluford Plemon, Frank Engman and C.G. Thomas not guilty, and find the defendant Z.Z. Savage guilty as charged in the indictment and assess his punishment at confinement in the penitentiary for two years." This shows they were not misled; that the court's charge was clear and explicit enough to let them understand the law in this particular, and certainly such criticism of the charge is not and can not be justified when only one out of four defendants is convicted.

Neither do we think any charge was called for as to the transaction at the Elks hotel. This was as to an attempt to bribe Barkley to leave the State and not testify against these defendants in this case, and as such testimony was admissible, as would be testimony of flight or any other circumstance of tampering with a witness on the issue of guilt, it would have been improper to have sought to limit it in the charge and such a charge would have been upon the weight of the testimony. The authorities on this question have heretofore herein been cited. Neither was corroboration necessary as to the testimony of subsequent transactions to the one on trial, showing a tampering with or offer to bribe a witness not to appear and testify on the trial of this case.

I do not agree that the testimony does not support the conviction, if there was no error in the trial. As it will be tried again, I will not comment on it, but if the testimony offered by the State is true, it shows a deliberate effort to bribe Barkley not to appear and testify against Engman in any case then pending against him; a payment of thirty dollars for that purpose, and the corroborating circumstances are sufficient to sustain a conviction.

These are all the questions discussed by Judge Davidson except the one in which I concur in the opinion that it shows error. I have not discussed the above questions at any great length; but just desired to enter my protest to any such holdings and ruling of law. As to the ground, and the only ground, upon which I concur in the reversal of the case, it is in the charge on accomplice testimony. The court instructed the jury in this paragraph that if they believed Barkley was an accomplice and his testimony "tended to connect the defendants with the commission of the offense." This was error, and it has been so often so held and pointed out, that it seems strange to us that this error should continue to creep into the record. Appellant in his objection specifically pointed out this error in the charge, and it should have been corrected. In the cases of Oates v. State,51 Tex. Crim. 449; Barrett v. State, 55 Tex. Crim. 182; Tate v. State, 55 Tex.Crim. Rep.; Maples v. State,56 Tex. Crim. 99, and other cases cited in Branch's Criminal Law, section 320, where the rule is stated to be that "a charge is error which only requires testimony of an accomplice to ``tend' to connect the defendant with the offense. The charge on accomplice must require that the testimony of the accomplice ``connects' the person on trial with the offense charged, not merely ``tend to connect.'" As to the corroborating testimony, this only need "tend to connect" the person on trial with the offense, but the accomplice testimony must show that the defendant was connected with the transaction. We trust this distinction will be understood in the future.

For this error in the charge we agree to a reversal of the case.

Reversed and remanded.