
    GOLDSBERRY v. STATE.
    (No. 6864.)
    (Court of Criminal Appeals of Texas.
    May 3, 1922.
    Rehearing Denied June 21, 1922.)
    1. Bribery &wkey;>l 1 — Evidence of bribery held sufficient to support conviction.
    In a prosecution for bribery, evidence held sufficient to support conviction.
    2. Criminal law <&wkey;l5 — Offer of bribe not to arrest for what was then a crime not affected by subsequent change of law making offense not a crime.
    Where the accused offered a bribe to avoid arrest for the possession of intoxicating liquor which was then a crime, the fact that afterward, on account of a change of law, the possession of intoxicating liquors was not a crime, did not affect a prosecution for offering a bribe; Vernon’s Ann. Pen. Code 1916, art. 16, forbidding the punishment of one who has violated a law subsequently repealed, having no application.
    3. Criminal; law <&wkey;l 134(3) — Appellant may not raise question of constitutionality of lav/, validity of indictment, or sufficiency of warrant in subsequent prosecution for attempting to bribe officer making the arrest.
    On appeal from conviction for attempting to bribe an officer making an arrest, the accused may not raise the question of the constitutionality of the law under which the arrest was about to be made, the validity of the indictment afterward returned for the offense for which the arrest was made, or the regularity of the issuance of the warrant.
    4. Bribery <&wkey; I (I) — Arrest held not to have been made when “bribe?’ was offered1 by accused.
    Where an' officer found intoxicating liquor in defendant’s house and was offered money by defendant not to make an arrest, the offense of offering a bribe was complete, since the arrest had not actually been made.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Bribe.]
    5. Arrest &wkey;>7&wkey;Officer arresting for illegal possession of liquor has duty to file complaint.
    Under Vernon’s Ann. Code Or. Proc. 1916, art. 48, making it the duty of a sheriff arresting one for a felony to take the accused before a magistrate and file or cause to be filed a complaint against such person, where a sheriff arrested a person for illegal possession of intoxicating liquors in his presence he had the duty to file a specific complaint against the person arrested.
    6. Criminal law <&wkey;72l (3) — Reference by county attorney to law that failure of accused to testify could not be considered held not error.
    In prosecution for offering a bribe, where a county attorney, in reading a charge to the jury that they were not to consider the refusal of the accused to testify, remarked that the refusal to testify could not be considered for any purpose whatever, either for or against the accused, and that the jury should not comment upon it in the jury room one way, or another, such statement was not erroneous.
    7. Criminal law &wkey;>687(l) — Permitting additional evidence for state to be introduced after charges were read to jury held not error.
    In prosecution for offering a bribe, permitting the state to introduce evidence after reading the charges to the jury was not error.
    8. Bribery <&wkey;>l4 — Refusal of charge as to right of person accused of offering bribery to invoke assistance of arresting officer to protect reputation of accused’s place of business held proper.
    In a prosecution for offering a bribe to an officer not to make an arrest for the illegal possession of liquor, the refusal of an instruction that the accused had a right to intercede with the arresting officer for his clemency or for his aid in protecting the reputation of the accused’s place of business, and for his aid in procuring legal disposition of the charges against the accused, was proper.
    9. Bribery &wkey;»l4 — Refusal to charge that If offer of bribe not to make an arrest was to protect business of accused to acquit, held proper.
    In a prosecution for offering a bribe to an officer not to make an arrest for the illegal possession of liquor, the refusal of a charge that, if the offer of the bribe was to protect the reputation of a rooming house belonging to the accused, to acquit the accused, was proper.
    Appeal from District Court, Potter County; Henry S. Bishop, Judge.
    Zula Goldsberry was convicted of offering to bribe an officer, and she appeals.
    Affirmed.
    Stone, Miller & Guleke, of Amarillo, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMGRE, J.

Appellant was convicted iu the district court of Potter county of offering to bribe an officer, and her punishment fixed at two years in the penitentiary.

In April, 1921, appellant had a rooming house in Amarillo. On the 13th of said month the sheriff of the county, accompanied by several deputies, went to said house with a search warrant directing a search of same for intoxicating liquors and the arrest of appellant if such liquors were found. Quite a quantity of intoxicating liquor was found in said house. During the search appellant went into her own room and locked the door, which was forced by the officers, and appellant was found in the act of removing bottles of whisky from under her bed from a hole cut in the floor. She had four bottles of whisky in her hands when the door was broken open. Alcohol, tequila, and whisky were found in the house. After the liquor was found* appellant told the sheriff she wished to see him and told him she wanted to talk with him privately, and he walked with her into the kitchen of the house and she shut. and locked the door. Mr. Roach, the sheriff, testified on this trial as follows:

“She shut the door and told me that she couldn’t afford for this thing to get out, and it was going to ruin her business and so on, and she wanted me to have these other men just to let everything go, asked me to, and said that she would make it right with me somehow. We talked there for several minutes, and she said, ‘How would a thousand dollars look to you?’ I told her it would look awful good to me, but not under such circumstances, and she said: ‘You are a fool if you don’t take the money; all the rest of them are doing it.’ I have forgotten just everything, that was said there; several other things were said, but I know that was said. She locked the door when she went back there. She said, ‘This will be just between you and I, and no one else will ever know it.’ Prior to the time she made that statement, I had found the whisky in the house there.”

Mr. Roach further testified that after this conversation took place he arrested appellant and placed her in jail. The indictment herein charged appellant with willfully and corruptly offering to give and pay as a bribe to said Burton Roach the sum of $1,000, with the intent and purpose to induce and influence said Roach, in violation of his official duty as such officer, to not arrest and to not file complaint against her charging her with having in her possession intoxicating liquor in violation of law.

By request for peremptory instruction to acquit, appellant raised, and here argues at length, that the facts above mentioned, if true, would not in law amount to an offer to bribe. Evans v. State, 48 Tex. Or. R. 620, 89 S. W. 1080, is cited as authority. In that case an officer having the accused in custody was conveying him to jail, and as they drew near thereto the prisoner said, “How much will you take to turn me loose and let me go?” This court held that while the prisoner may have been feeling his way to see if the officer would accept a bribe, none was offered; 'that no sum was offered nor inducement held out further than to ask the question above mentioned; and that a violation of the law, was not shown. These facts are in no way similar to those in the instant case. Here we have the officer in possession of a warrant directing the arrest of appellant if intoxicants be found in her possession; same were so' found; the official duty of the sheriff thus became fixed. Appellant’s language to. him as above set out has but one effect and can have but one interpretation:

“This must not get out. My business will be ruined. Have these men just let everything go. I will make it right with you. How would a thousand dollars look to you? You are a fool if you don’t take the money; all the rest of them are doing it. This will be just between you and I, and no one else will ever know it.”

Article 194, Vernon’s P. C., says that the bribe need not be direct; if may be hidden in any manner designed to cover the true intention. The true intention of appellant is made perfectly apparent from her language. She even went so far, when the officer declined to consider her veiled offer, as to tell him he was a fool not to take the money.

The indictment herein charged that appellant offered a bribe to the sheriff not to arrest her and not to file complaint against her for the offense of possessing intoxicating liquor not for medicinal, etc., purposes. At the time of this trial the Dean Law had been amended and the offense of possessing liquor so changed as that the indictments, whicfi had been returned against this appellant charging her with possession of such liquor, had been dismissed. Appellant contends that for the same reasons requiring the dismissal of said indictments, the instant indictment was bad, and complaint is made óf the overruling of a motion to quash herein. We do not agree with appellant’s contention. The possession of intoxicating liquor not for medicinal, etc., purposes, was a violation of the law in April, 1921, when this bribe was offered. The offense here charged was offering to bribe the sheriff in order to induce him not to perform his duty. The duty, in question was to arrest appellant for what was then a violation of the law and to file complaint against her. Such offense was complete when the offer of bribe was made. There has been no amendment to the law of bribery. If the matter sought to be influenced was then one within the duty of the officer, the crime was then committed and by no sort of reasoning can a subsequent amendment of the law relating to possession of liquor affect the status of the crime charged against appellant. Article 16 of Vernon’s P. O., forbidding the punishment of one who has violated a law subsequently repealed, has no application here.

There is another view of the matter. Whether the indictment later returned against appellant based on the possession of such liquor was good or bad, and whether the law under which the search warrant was issued be later repealed or not, or whether same be then constitutional or not, is not a matter which can be raised by the appellant. Florez v. State, 11 Tex. App. 102; Moseley v. State, 25 Tex. App. 515, 8 S. W. 652; Smalley v. State, 59 Tex. Or. R. 95, 127 S. W. 225. The question of the criminality of the act of the accused, whose bribe or offer thereof be under investigation, may not be shifted to the question of the regularity of the issuan.ce of the capias or the search warrant, or the constitutionality of the law under which the officer was acting. We do not feel called upon to decide the soundness of the opinions in Moore y. State, 44 Tex. Cr. R. 160, 69 S. W. 521, or Ex parte Richards, 44 Tex. Cr. R. 565, 72 S. W. 838, for the reason that in our opinion neither case is applicable here.

Appellant also contends that the matter alleged as that sought to be influenced by the offer, if made, had already transpired and therefore an offer, if made, was not within the statutory definition of an offer to bribe; that is, appellant contends that she was already under arrest. We do not so read the record. The sheriff specifically states that he arrested her after this offer was made, and none of the other witnesses give any evidence to the contrary. We do not think the rules relative to an arrest, when the question under consideration is the admissibility of a confession, applicable to the question of an arrest in the sense in which that term is used in the instant prosecution. No arrest in the ordinary sense had been made, and from appellant’s viewpoint that which she sought to avoid and to influence, which was the arrest, had not yet taken place. We find nothing in Peacock v. State, 37 Tex. Cr. R. 418, 35 S. W. 964, adverse to this holding.

In this connection, while the trial court gave a special charge asked by appellant to the effect that it was not the duty of the sheriff to file complaint against appellant, we are inclined to doubt the correctness of that proposition. Under article 48, Vernon’s C. O. P., it is the duty of the sheriff arresting one for a felony, as was this appellant, to take such person before a magistrate and there file or cause to be filed a complaint against such person. One held solely by virtue of an arrest made in search warrant is entitled and .it is necessary that there be filed some specific complaint, and we apprehend it is the duty of the officer making the arrest to file such complaint. In the instant case a felony was committed by appellant, and in the sheriff’s presence, and we do not think he could be said to have performed his duty when he took her before the proper magistrate and there failed or refused to file complaint against her.

It is made to appear by bill of exceptions that while the county attorney was reading the charge of the court in the course of his argument and discussing its applicability to various phases of the evidence, he came to that part of the charge which instructed the jury that they must not consider against appellant her failure to testify. He read a line of that part of the charge and then remarked, in substance, that her failure to testify was not to be taken against her, and turned away from the matter. The trial court qualifies the bill of exceptions by saying that when the county attorney discovered what he had started to read he then said:

“Well, there is no need to read that. You can’t consider that for any purpose whatever. Her failure to testify can’t be considered for or against her in arriving at your verdict, and you shouldn’t comment upon it in the jury room one way or the other.”

If this statement were susceptible of inference that it was intended as a discussion of . the appellant’s failure to testify, it might raise a question; but nothing in the bill warrants such conclusion. Nor do we think the other bills of 'exception Nos. 7 and 42 show any such reference to appellant’s failure to testify as might be called erroneous.

Bill of exceptions No. 12 shows that for what he deemed a sufficient reason the trial court permitted additional evidence on behalf of the state after the charges had been read to the jury. Numerous eases are cited in Branch’s Ann. P. 0. § 378, uniformly holding that when the due administration of justice requires that evidence be admitted at any time before the close of the argument, this may be done without error. The complaint of the matter in the instant case is that after the admission of such evidence the charge was not resubmitted to appellant’s counsel, nor were they allowed to withdraw such special charges as they desired. The trial court in his qualification to this bill of exceptions states that after said evidence was introduced he asked appellant’s counsel if they wished to make any objection or ask other charges and they declined to answer. No error is shown.

Appellant asked the following special charge:

“Gentlemen of the jury, you are instructed that the defendant, Zula Goldsberry, had the legal right to talk to the sheriff, Burton Roach, about her arrest, and as to any complaint or complaints which might be filed against her, and to intercede with the sheriff for his clemency, or for his aid in protecting the reputation of her place of business, and for his aid in procuring a legal disposition of the charges against her, and to invoke the sheriff’s assistance. Now, if you find and believe from the evidence that the defendant, Zula Goldsberry, did or intended to do no more than this, you will find the defendant not guilty and so say by your verdict.”

It is claimed that under the authority of Garner v. State, 50 Tex. Or. R. 364, 97 S. W. 99, this charge should have been given. We do not think so. Garner was an ignorant negro who was arrested for crap shooting. A pistol was subsequently found on his person. He and the officer differed materially as to what was said by him upon which the bribery charge was based. Garner claimed that he tried to get the sheriff to act for him in getting him off as light as possible, and that his money offer to the sheriff was only intended as an effort to put into the sheriff’s hands money with which to pay his fine. This court held that in such case a charge, similar to the one just .quoted, was proper. In the instant case the appellant did not take the stand, nor was there any testimony by any witness of any acts, words, or conduct on her part upon which such special charge should have been based.

Whether the burden of proof, that the liquor found by the sheriff was possessed by appellant for medicinal purposes, was on her or on the state, was not an issue in this case.

Appellant asked charges substantially to the effect that if the thousand dollars was offered to the sheriff to get him to not give publicity to the matters found out or occurring at the time of the search of her premises, and that her purpose in offering such bribe was to protect the reputation of her rooming house, she should be acquitted. That appellant feared injury to her business and the effect of an arrest and prosecution would afford no sort of justification for an offer of money to the officer to fail or refuse in his duty. We find nothing in evidence calling for any charge that appellant would not be guilty if any acts, words or conduct of the sheriff led her to make such offer. If the contention in this regard were true and sustained by facts, it would show no justification of appellant, but might make of the officer an accomplice. However, there was no evidence at all of any act or word on the part of the officer which might have led her to make such offer.

Complaint is made of various portions of the argument of the state. Without setting' these out, we content ourselves with saying that we have examined each matter carefully and believe none of same presents any error. We have also gone attentively through the various exceptions to the charge of the court, but we find ourselves unable to believe any of same call for extended discussion or approval as presenting error. There are many special charges, and other matters complained of in the record which are not presented in the able brief for appellant. These have had our attention, but seem to us to present no question worthy of discussion.

No evidence was offered on behalf of appellant save the documents showing her to have been indicted for the possession of intoxicating liquor, and motions made by the state after the amendment to the Dean Law by the First Called Session of the Thirty-Seventh Legislature, 1921 (Vernon’s Ann. Ren. Code Supp. 1922, art. 588⅛ et seq.) to have said indictments dismissed, which was done. We have given the case careful study. Appellant was ably defended, and if any objections could have been made which were not presented, we are unable to conceive of same.

We are constrained to believe that a fair trial was had in the court below, and that the evidence fully supports and warrants the judgment, and an affirmance is ordered. 
      <gz=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     