
    DAVIS v. STATE.
    (Court of Criminal Appeals of Texas.
    May 28, 1913.)
    1. Bribery (§ 1) — Statutory Provisions— “Executive, Legislative, oe Judicial Officer.”
    In Pen. Code 1911, art. 174, providing that any person who shall bribe or offer to bribe any “executive, legislative, or judicial officer” shall be punished as therein provided, the quoted words are meant in their broadest sense and are intended to embrace every officer, whether a state, county, or precinct officer.
    [Ed. Note. — For other cases, see Bribery, Cent. Dig. §§ 2, 3; Dec. Dig. § 1.]
    2. Bribery (§ 6) — Indictment—Sufficiency.
    Under Pen. Code 1911, art. 174, making it a criminal offense to offer to bribe any executive, legislative, or judicial officer, where an indictment charged an offer to bribe an assistant county attorney, it was not necessary for it to allege whether he was a state or county officer.
    [Ed. Note. — For other cases, see Bribery, Cent. Dig. §§ 8-8; Dec. Dig. § 6.]
    3. Bribery (§ 6) — Indictment— Sufficiency.
    Under Pen. Code 1911, art. 174, making it a criminal offense to offer to bribe any executive, legislative, or judicial officer, an indictment charging an offer to bribe an assistant county attorney was not defective because it recited that he was a judicial officer of the state, even conceding that he was not a judicial officer, since this recital was immaterial and could b.e treated as surplusage; the indictment having alleged the office he held.
    [Ed. Note. — For other cases, see Bribery, Cent. Dig. §§ 5-8; Dec. Dig. § 6.]
    4. Criminal Daw (§ 37) — Entrapment — Bribery.
    A person tendering a bribe to an assistant county attorney for the purpose of influencing his official action was guilty of offering a bribe, even though the county attorney made the first advance and by his words, acts, and conduct induced accused to make the offer, and although the assistant county attorney did not intend to accept the bribe.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 42; Dec. Dig. § 37.]
    5. Criminal Law (§ 780) — Instructions— Testimony of Accomplices — Corroboration.
    Where an assistant county attorney made the first proposition, and induced accused to offer a bribe, even though he did not intend to accept it, and was merely seeking to entrap or detect accused in the commission of an offense, he was an accomplice, and hence, where there was evidence tending to show that such was the case, the court should have charged that if such were the facts the assistant county attorney’s testimony must be corroborated as to those facts connecting accused with the commission of the offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1859-1863; Dec. Dig. § 780.)
    6. Bribery (§ 14) — Trial—Instructions.
    On a trial for offering a bribe to an assistant county attorney to induce him to file a motion to set aside a judgment of conviction against a third person and to recommend to the judge that the judgment be set aside, where accused claimed that he offered the money merely in payment of such third person’s fine, the court should have made it plain in its charge that, if the money was tendered under the belief that it was to be used in paying the fine, accused would not be guilty and would be'guilty only if he tendered the money to influence the attorney’s action as an official.
    [Ed. Note. — For other cases, see Bribery, Cent. Dig. § 13; Dec. Dig. § 14.*]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Sam Davis was convicted of an attempt to bribe, and be appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Ana. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted for attempting to bribe one of the assistant county attorneys of Dallas county, and his punishment assessed at two years’ confinement in the state penitentiary.

Appellant filed a motion to quash the indictment on a number of grounds. As the first count was not submitted by the court to the jury, those grounds complaining of that count need not be considered. As to the second count, it charges that appellant did offer to J. G. Wilson, assistant county attorney of Dallas county, $100 to file a motion to set aside and recommend to the judge of the district court of Dallas county that a judgment of conviction then and there had against one Dilmous Davis, wherein the said Dilmous Davis had been adjudged guilty of an offense against the laws of the state, and sentenced to ten years in the penitentiary, be set aside.

Article 174 of the Penal Code (1911) states if any person shall bribe or offer to bribe any executive, legislative, or judicial officer he shall be punished by confinement in the penitentiary for a. term not less than two nor more than five years. These words, “executive, legislative, and judicial,” are meant in their broadest sense, and were intended to embrace every officer in this state— state, county, and precinct. The government is said to be divided into three separate and distinct departments — executive, legislative, and judicial; and the Legislature, by the use of these words, intended and did make it plain that each and every officer in the state was embraced therein.

It is immaterial whether he was a state, county, district, or precinct officer; the allegation that he was assistant county attorney of Dallas county was sufficient, and it was not necessary to state whether this made him a state or county officer.

The indictment alleges that appellant did then and there unlawfully and corruptly offer to bribe J. G. Wilson, a duly and legally appointed and qualified assistant county attorney of Dallas county in the state of Texas, being then and there a judicial officer of the state, etc. Appellant insists that a county attorney is not a judicial officer. Under article 176, P. 0., it would seem that the Legislature has classed him, under the bribery statute, a judicial officer; but this would be an immaterial allegation, as the indictment had alleged the office he held, and these words are not essential to charge the offense and could be treated as surplusage.

“ ‘The gist of the offense,’ says Mr. Bishop (2 Bishop’s Crim. Law, § 86), ‘seems to be tlie tendency of the bribe to prevent justice in any of the governmental departments — executive, legislative, or judicial.’ So in Walsh v. People, 65 Ill. 60, 16 Am. Rep. 569, in holding that an unsuccessful attempt to bribe is criminal, the court say: ‘The reason of the law is plain. The offer is a sore temptation to the weak or depraved. It tends to corrupt, and, as the law abhors the least tendency to corruption, it punishes the act which is calculated to debase and which may affect prejudicially the morals of the community.’ Bribery is a crime which directly affects the community at large through its officers and representatives. Among ancient peoples, and even among the Romans, the giving of rewards and emoluments to public officers, and especially judicial officers, was tolerated and even encouraged; and, without such inducements, no audience could be had. See 4 Bla. Com. 139. The enlightened civilization of the present age quickly apprehended the danger of any such custom; and hence the fiat of the common law against it. And in modern times, the heinousness of the offense becoming more apparent as the power of wealth increased, the crime has been made punishable as a felony. The reason of the rule of the common law, and of the greater stringency of modern statutory law, is clear. The spirit of any democratic government is utterly abhorent to anything which tends to corruption in the representatives of the people, or threatens the purity of the administration of the government. And as wealth and power may become powerful forces in this dangerous direction, the protection of equal rights among the people demands that a severe penalty be visited upon any member of the community who gives, or offers to give, anything of value to any representative of the community, whether executive, legislative, or. judicial, and upon any such representative who receives, or offers to receive, any such reward as an inducement to official action. In fine, the gist of the crime is the danger and injury to the community at large. Such being the case, attempts to bribe become clearly indictable, for the state must guard against the tendency to corrupt as well as against actual corruption, both being alike dangerous and injurious to the community at large. Therefore an indictment for attempting to bribe a township trustee to appoint a certain person as school teacher need not allege that there was a vacancy. Shircliff v. State, 96 Ind. 369. Here is the tendency to corrupt to the injury of the community at large; therefore the offer was an attempt to ‘bribe.’ So one may be convicted of attempting to bribe a person to avoid the service of a subpoena, although the indictment alleges neither the existence, issuance, nor service of the subpoena. Scoggins v. State, 18 Tex. App. 298. For the same reason it is also bribery, though the act requested as the price of the bribe be not properly within the official power of the officer approached, provided it is contemplated that he act in an official capacity, and if necessary usurp functions not his own. At common law an offer of a bribe to a judge to decide a case not pending, but to be instituted afterwards before him, but which was never actually commenced, is indictable. See People v. Markham, 64 Cal. 157, 30 Pac. 620, 49 Am. Rep. 700. All the reasons of the rule here prevail. The tendency to corrupt justice is present at the time of the offer, and .the offense is then complete. Mr. Stephen says: ‘Every gift or payment paid in respect of, or in relation to, any business having been, being, or about to be, transacted before any such person in his office, is a bribe, whether it is given in order to influence the judicial officer in something to be done, or to reward for something already done, and whether the thing done or to be done is itself proper or improper.” Stephen’s Dig. Crim. Law, art. 126. See 97 Am. Dec. 713, 714.

The court did not err in overruling the motion to quash the indictment, for it clearly and succinctly charged a violation of article 174 of our Code. The testimony of Mr. J. G. Wilson, assistant county attorney, would support a conviction, corroborated as he is by the two deputy sheriffs. Mr. Wilson specifically denies that he solicited or induced appellant to tender him the bribe, while, on the other hand, appellant testifies in his own behalf, and first states that he did not offer to pay the money tó Mr. Wilson as a bribe; but, as he understood the matter, he was offering to him the money to pay a fine that was to be assessed against Dilmous Davis in lieu of the penitentiary sentence. He also testifies that he was induced by Mr. Wilson to make the proposition he did, that Hr. Wilson suggested, "You are always asking us for favors; and doing nothing for us,” and they then went into a private office, where the remainder of the negotiations took place. As stated before, Mr. Wilson denies making the first advance, but says, when appellant made a suggestive remark, they did go into a private office, and “he lead him on by apparent acquiescence and questions.”

Appellant requested the court to instruct the jury that, if the first suggestion leading to the bribery was made by Wilson and by his acts and conduct he was the inducing cause of appellant offering the bribe, this in law would make him an accomplice to the crime, even though at the time he had no idea of accepting the bribe and was merely inducing appellant to make the offer that a prosecution might follow. The court refused the special charge requested and refused to submit the issue of whether or not Mr. Wilson was an accomplice, and refused to instruct the jury that if Mr. Wilson was an accomplice they could not convict appellant, unless there was other testimony tending to connect the defendant with the offense charged. The court seemed to hold to the view that Mr. Wilson could not be an accomplice, holding that, if Wilson made the first advance and induced appellant to make the tender, no offense would be committed. And the case of O’Brien v. State, 6 Tex. App. 665, would seem to support the court in such holding; but we do not think this is the law. Every person is responsible alone for his own criminal conduct, and the lack of criminal intent on the part of Mr. Wilson could not and would not inure to the benefit of appellant if he, in fact, tendered him.the money as a bribe. If he did so, he would necessarily have the intent to bribe; he not knowing that Wilson did not intend to accept it as a bribe. The correct principle of law is tersely stated in the case of People v. Liphardt, 105 Mich. 80, 62 N. W. 1022, as follows: “We know of no case that holds that one who has committed a criminal act should be acquitted because induced to do so by another. It is merely when the criminality of the act is shown to be absent by the fact of the inducement that such proof justifies an acquittal.” The evidence as to Mr. Wilson, introduced both by the state and defendant, shows- an absence of criminality. But not so as to appellant. Even though Mr. Wilson induced him to make the tender, yet he made the tender (if the money was not to pay a fine) with the intent to influence Mr. Wilson in his action in the premises, and his act under such circumstances would be criminal.

Considerable legal hairsplitting has been indulged in by courts and text-writers in discussing this subject. It must be admitted at the outset that it is beyond the power of a private person to license the commission of a crime. As to these more serious crimes which are purely transgressions of the public right, it must follow that consent thereto of private persons directly injured thereby cannot, to any extent, purge such crimes of their character as public wrongs, nor render those who commit them less liable to punishment. The consent of a woman upon whom an abortion was performed constitutes no defense to a prosecution therefor. Commonwealth v. Wood, 77 Mass. (11 Gray) 85; Commonwealth v. Snow, 116 Mass. 47. Similarly, consent of the deceased is no defense to a prosecution for homicide. Regina v. Allison, 8 Car. & P. 418. In a prosecution for bribery, the fact that the prosecuting witness was the giver of the bribe in question cannot excuse defendant. Newman v. People, 23 Colo. 300, 47 Pac. 278. Nor is the latter exculpated by proof that the bribe was instigated for the purpose of entrapping him. People v. Liphardt, 105 Mich. 80, 62 N. W. 1022; State v. Dudoussat, 47 La. Ann. 977, 17 South. 685.

The offer to bribe a public official is a transgression of a public right, and the consent or nonconsent of the officer cannot affect the criminality of the act of the person who makes the offer, and even though Mr. Wilson by his words, acts, and conduct may have been the inducing cause of the offer to bribe, yet, if appellant did, in fact, tender money to the officer with the intention and for the, purpose of influencing his action as such officer, he would be guilty under our statute. It would not be an offense against Mr. Wilson so much’as an offense against the public welfare, and one which no officer would have the authority nor power to give his consent to.

Therefore we are of the opinion that the court erred in holding that if Mr. Wilson induced appellant by. his words, acts, and conduct to make a proposition to pay him so much money to influence his action as an official, and appellant did make the proposition, under such circumstances he would be guilty of no offense. However, under such circumstances, Mr. Wilson would, under the rules of evidence, be held to be an accomplice, and appellant could not be convicted upon his testimony alone, and the court should have instructed the jury that, if Mr. Wilson made the first proposition and induced appellant to make the tender, he would be an accomplice, even though he did not intend to accept the bribe, and by his acts was but seeking to entrap or detect appellant in the commission of an offense, and, under such circumstances, he must be corrrobated in those facts which connected defendant with the commission of the offense, if an offense had been committed.

There are several other matters complained of in the record, but we do not deem it necessary to discuss them. The court should make it plain in his charge that, if appellant tendered the money to Mr. Wilson under the belief that it was to be used in paying the fine of Dilmous Davis, he would not be guilty of any offense, and he would only be guilty of an offense if be tendered tbe money to Mr. Wilson to influence bis action as an official.

Reversed and remanded.  