
    John Sowells v. The State.
    No. 8724.
    Delivered February 25, 1925.
    Rehearing denied April 1, 1925.
    1. — Bribery—Accomplice—Witness—In Law — In Fact.
    While it has been held that in bribery cases, one who initiates the transaction and takes part in the commission of the offense is an accomplice, an officer who does not initiate the transaction, nor induce the perpetration of the offense, but simply furthers the design conceived and put in motion by the accused is not in law an accomplice, and whether such officer is an accomplice witness becomes a question of fact. Following Chitister v. State, 33 Tex. Crim. App. 635 and other eases cited.
    3. — Same—Accomplice Witness — Intent As a Test.
    The element which distinguishes a feigned accomplice from a real accomplice, is the absence of a criminal intent. Where the evidence is without conflict and susceptible of no inference other than that of innocent intent, there is no issue of fact for the jury, but the witness as a matter of law, is not an accomplice. See Smith v. State, 89 Tex. Crim. Rep. 147. Ruling Case Law Vol. 1, page 159.
    3. —Same—Intent of Giver — Controlling factor.
    It is not essential to the conviction of an accused for bribery that the officer receiving the bribe acts with a criminal intent. In delivering the money, with the intent to bribe the appellant committed the offense, without regard to the motive of the officer in receiving the money. See cases cited.
    4. —Same—Bills of Exception — Practice on Appeal.
    Generally speaking the failure to grant a motion to postpone or to continue cannot be reviewed in the absence of a bill of exception showing that the motion was made, the action of the court, and the reasons assigned. In exceptional cases the court has reviewed such matters, when presented for the first time in a motion for a new trial. See Jackson v. State, 48 Crim. Rep., 373. The instant case does not come within the rule of exceptional cases.
    5--Same — New Trial — No Counsel — Properly Refused.
    In his motion for a new trial appellant set out as a ground for a new trial that he was not represented by counsel on his trial, and that a postponement was refused to enable him to secure counsel. In a felony case, less than capital the presence of an attorney, is not essential. The law recognize’s the right of the accused to be represented by counsel, but it imposes upon him the duty of using diligence to secure their services; and where appellant by his own neglect failed to make arrangements with an attorney to represent him, he has no legal cause of complaint.
    
      Appeal from the District Court of Henderson County. Tried below before the Hon. Ben. P. Dent, Judge.
    Appeal from a conviction for bribery; penalty, two years in the penitentiary.
    The opinion states the case.
    
      Ernest Landman, of Athens, for appellant.
    
      Tom Garrard, State’s Attorney, and Grover C. Morris, Assistant State’s Attorney, for the State.
   MORROW, Presiding Judge.

The offense is bribery; punishment fixed at confinement in the penitentiary for a period of two years.

Patton for the State testified that he was a constable; that one Wesley Tucker had been running a place which had been closed up; that appellant called the witness aside and said that he wanted to open up the place which Tucker had been operating. The witness told him that it might be opened provided it was conducted properly, but that nothing else would be tolerated. Appellant said: “I can make you some money, and make some money for myself.” The witness replied: “What do you mean?” Appellant said: “I can pay you eight or nine dollars a week.” The witness said: “John you can’t do that. I am not going to have anything like that at all.” According to the witness the appellant came to his house a few days later and handed him five dollars. Patton asked what it was for and appellant said: “We have been having some games down there, and I will give you more next week.” Patton said: “No, you won’t give me more next week.” Pie then took charge of the appellant and placed him in jail. The witness said that he still had the money which the appellant had given him and exhibited it upon the trial. It consisted of two one-dollar bills and three silver dollars. The witness further said:

“’He said that he wanted to open up this gambling house, allow them to come there and gamble. He gave me the money for that purpose, to keep me from coming down there to bother him.”

On cross-examination, he said:

“Yes, I said that you gave me that money to allow you to run a gambling house. That is what you told me.”

Appellant’s testimony ivas to the effect that he had conducted no gambling house and had not intended to do so. He introduced several witnesses to support his theory that he had not been engaged in keeping a gambling house. According to the appellant’s testimony, his boy had run off and had gone to Crockett. He went to Patton’s house and said: “I want to talk to you a little.” Patton, with an oath, said: “Come on here and get in this car. I will put you in jail. I will learn you how to come up here and try to bribe me.” Appellant said: “Mr. Patton, I am not trying to bribe you.” He further said that he did not give Patton five dollars; that he had no previous conversation upon the subject of opening up the establishment.

Appellant insists that the State’s testimony consists of that of an accomplice; that the record being bare of corroboration and by reason of the statute declaring that a conviction cannot be had upon the accomplice testimony alone, the judgment must be reversed. The soundness of this contention depends upon whether under the evidence Patton was an accomplice. It has been held that in a bribery case, one who initiates the transaction and takes part in the commission of the offense is an accomplice as a matter of law. See Davis v. State, 70 Texas Crim. Rep. 530. It is thought, however, that where there is cogent evidence that an officer does not initiate the transaction or induce the perpetration of the offense but simply im tliers the design conceived and put in motion by the accused, whether the officer is an accomplice witness becomes a question of fact. Chitister v. State, 33 Texas Crim. Rep. 635; Minter v. State, 70 Texas Crim. Rep. 645; and cases there collated. See Corpus Juris, Vol. 16, p. 678, sec. 1370, note 63, in which are cited many Texas cases; Ruling Case Law, Vol. 1, p. 159; Smith v. State, 89 Texas Crim. Rep. 147. In the latter case, speaking of feigned accomplices, it was said:

“The element which distinguishes them from real accomplices is the absence of criminal intent. Where the evidence is without conflict and susceptible of no inference other than that of innocent intent, there is no issue of fact for the jury, but the witness, as a matter of law, is not an accomplice.”

Appellant’s testimony is that he gave no bribe; that he was not engaged in any illegal business. The testimony of the State’s witness is that the appellant gave money to Patton to bribe him, but that Patton, instead of accepting the money as-a bribe, immediately arrested the appellant for the offense of bribery. We confess that we perceive no evidence upon which to base such inference of criminal intent in the witness Patton as would characterize him as an accomplice as a matter of law. Patton not being an accomplice witness as a matter of law, if the facts would justify the inference that he was such witness in fact, it would have been incumbent upon the accused to demand that the jury be called upon to determine the question. This demand not having been made, the verdict would not be vitiated by the evidence, if such there wa,s, tending to characterize Patton as an accomplice witness.

Appellant insists, however, that accepting the State’s theory that Patton did not accept the bribe, the case is not one of bribery but of an offer to bribe and that therefore the proof is variant from the averment, and the judgment cannot stand. According to the State’s theory, the appellant tendered the money as a bribe and Patton received it. It was not essential to the appellant’s conviction that in receiving the money Patton acted with a criminal intent. Minter v. State, 70 Texas Crim. Rep. 646; Com. v. Murray, 135 Mass. 530; State v. Dudoussat, 47 La. 977; O ’Brien v. State, 7 Texas Crim. App. 181; Rath v. State, 35 Texas Crim. Rep. 142; see also Amer. Law Rep., Vol. 18, p. 152, note. In delivering the money to Patton with the intent to bribe him, the appellant committed the offense without regard to the motive of Patton in receiving the money.

In his motion for new trial appellant avers that he had employed a firm of attorneys to represent him; that on the day the case was called for trial his attorneys demanded a sum of money as balance due on the attorney’s fee. Appellant being unable to pay the same, the attorney’s withdrew from the case. He then requested time within which to see another attorney, and was allowed a short time, but being unable to procure counsel, his case proceeded to trial. The record is bare of any bills of exception verifying these averments or anything other than the appellant’s affidavit. Generally speaking, the failure to grant a motion to postpone or to continue cannot be reviewed in the absence of a bill of exceptions showing that the motion was made, the action of the court, and the reasons assigned. This has been held in many cases. See Nelson v. State, 1 Texas Crim. App. 44, and numerous other cases, cited by Mr. Branch in his Ann. Texas P. C., Sec. 304. In exceptional cases the court has reviewed such matter when presented for the first time in the motion for new trial. See Jackson v. State, 48 Texas Crim. Rep. 373. In that case the motion for new trial was re-enforced by affidavits of witnesses showing a strong probability of the innocence of the accused. In his motion it appears that he had secured the services of an attorney who represented him before the magistrate court, that he understood and believed that the attorney would represent him upon his trial; that he learned the contrary upon the day of the trial. He informed the trial judge of his predicament and was forced to trial. Witnesses supporting his defense whose affidavits accompanied his motion for new trial had not been subpoenaed, he having relied upon the attorney to cause the issuance of process for them.

In the present case, reliance seems to be had solely upon the fact that his attorneys abandoned his ease because the terms of employment had not been met. In a felony ease of less than capital, the law does not make the presence of an attorney. essential. It recognizes the right of the accused to be represented by counsel, but it imposes upon him the duty of using diligence in securing their services. In the motion there is nothing revealing what would have been done had the attorney been present other than that which was done. The evidence does not suggest the absence of any witnesses due to the failure of the attorneys to perform their duty. On the contrary, a number of witnesses testified in behalf of the appellant. No suggestion is made in the motion of any evidence that might have been produced in his favor. Neither does it show that any improper evidence against him was received. As we comprehend it, a reversal is sought solely because the appellant was not rej) resented by an attorney. This position this court cannot sanction. The appellant apparently by his own neglect failed in advance to make arrangements with attorneys to represent him. failed to comply with the rules of procedure with reference to making.a written motion to postpone, and in his motion for new trial sets up no equitable ground upon which this court might feel warranted in acting or in concluding that the presence of an attorney would have brought about a more favorable result of the trial. See Johnson v. State, 84 Texas Crim. Rep. 567.

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.

LATTIMORE, Judge.

Appellant lays much stress in oral argument and motion for rehearing upon the fact that he had no attorney to represent him upon his trial. Attention was called in the original opinion to the fact that this matter was not presented by any bill of exceptions, nor was it properly before the court for consideration. Had it been in such condition, however, under the showing made this court would not have reversed the case. ¥e presume fairness in the action of the officers of the court, such as attorneys are, until the opposite is made to appear. Our inference from all that appears in the record before us on the subject, would be that the fault, if any, in the failure to have attorneys to represent him, was due to negligence of appellant in not perfecting some arrangement beforehand, or complying with an agreement already made in order that he might have an attorney to represent him through his trial. Again, it is not shown but that all the witnesses in his behalf were present and gave testimony before the jury fully as to all matters favorable to his defense. Nor is it shown that there.was any error committed on the part of the court which could have been corrected or better prepared for presentation on appeal.

Appellant urgently argues that the State witness Patton was an accomplice. This matter was fully discussed in the opinion, and we do not see how we can make it plainer by discussion now, that the officer who merely took into his possession from the accused the money intended by the latter as a bribe, the officer at the time having no sort of intent of complying with the request of appellant, or of receiving the money as an inducement to do the thing which appellant wanted him to illegally do, — was not the acceptance of a bribe in law, and does not present such situation as would even call for the submission to the jury in the charge of the question as to whether the officer was an accomplice. Nothing in the testimony of the appellant suggested the idea of the officer being- an accomplice, because the appellant denies the whole transaction. Nothing in the testimony of the officer suggested that he was an accomplice, because it is perfectly plain that he merely took into his possession the money offered by appellant, without any intent at all of compliance with the proposition announced by appellant in the oiler or payment of the money as a bribe. The mere fact that in bis testimony the officer referred to it as a bribe, would not make it such in law.

Being unable to agree with appellant’s contention, the motion for rehearing will be overruled.

Overruled.  