Opinion
No. 18339.
Delivered May 20, 1936.
Bribery — Indictment.
Indictment for accepting a bribe which failed to charge or aver that the accused had legal custody of a prisoner, who it was alleged paid to defendant and others a named sum of money to permit his escape, or that the prisoner was released from custody, held insufficient.
Appeal from the District Court of Fayette County. Tried below before the Hon. M. C. Jeffrey, Judge.
Appeal from conviction for accepting a bribe; penalty, confinement in penitentiary for two years.
Reversed and remanded.
The opinion states the case.
W. H. Blanton, of Gonzales, and Theo W. Lueders, of La Grange, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Accepting a bribe is the offense; penalty assessed at confinement in the penitentiary for two years.
The indictment reads as follows:
"The Grand Jurors, for the County of Fayette, State aforesaid, duly organized, impaneled and sworn as such at the November Term, A.D. 1934, of the District Court of the 22nd Judicial District, in and for said County, upon their oaths in said Court present that Wylie McNatt, on or about the 31st day of July, A.D. 1934, and anterior to the presentment of this Indictment in the County of Fayette and State of Texas, was a duly qualified and acting ranger of the State of Texas, and as such ranger, he, the said Wylie McNatt, F. B. Hild, and Earl Zittleman did then and there unlawfully, willfully and corruptly accept from Jaroslav Krhovjak a bribe, in this, the said Wylie McNatt, as ranger aforesaid, then and there had in his lawful custody the said Jaroslav Krhovjak, a prisoner, and the said Wylie McNatt, F. B. Hild and Earl Zittleman, did then and there unlawfully, willfully and corruptly accept from the said Jaroslav Krhovjak the sum of One Hundred Dollars in money, the bribe being then and there offered by the said Jaroslav Krhovjak, and accepted by the said Wylie McNatt, ranger as aforesaid, and the said F. B. Hild and Earl Zittleman, upon the agreement and with the understanding between them the said Wylie McNatt, F. B. Hild and Earl Zittleman and the said Jaroslav Krhovjak, that the said Wylie McNatt, F. B. Hild and Earl Zittleman would permit the said Jaroslav Krhovjak, prisoner as aforesaid, to escape from said lawful custody, against the peace and dignity of the State."
We fail to perceive in the indictment any charge or averment that the appellant, F. B. Hild, had legal custody of the person of Jaroslav Krhovjak, the alleged prisoner; nor is it charged that the prisoner was released from custody. As understood, the averment goes no further than to declare that One Hundred Dollars in money was offered as a bribe and accepted by Wylie McNatt, ranger as aforesaid, and F. B. Hild and Earl Zittleman upon the agreement and understanding that the prisoner would be released upon the payment of one hundred dollars.
The case of Messer v. State, 37 Tex.Crim. Rep., written by Judge Hurt, is regarded very much in point as a precedent supporting the disposition of the present appeal, in which the judgment of the trial court is now reversed.
The judgment is reversed and the cause remanded.
Reversed and remanded.