While appellant, in his motion for rehearing again assigns and urges all the errors originally presented by him, he presses specially three points. First, that the indictment is bad and that his motion to quash should have been sustained. In the original opinion we discussed this sufficiently and are still of the opinion that without question the indictment is good. It is unnecessary to further now discuss this point.
Second, he urges that the policemen, Joe Davis and Lee Thompson, were accomplices.
Third, that it is a legal impossibility for one man to commit bribery; that there must be the giver and the acceptor of the bribe and the acceptor must accept with the intent and purpose of being corrupted, to constitute the offense. *Page 649
We will further discuss these last two points. It is to be regretted that the opinion is already quite lengthy, but in order to properly present the questions, it will be necessary for us to give in detail the testimony, especially of the two policemen. We will give it substantially in full.
Joe Davis testified: "My name is Joe Davis. I am a police officer in the City of Dallas and have been such police officer about eight years. I know Lee Thompson, who is also a police officer in the City of Dallas. We were actually engaged in our duty on the 5th of August, 1911. I have known Jim Minter something like four or five years; knew him when I saw him; knew that he was Jim Minter, and that is all I knew about him. I know that his place is at 3121 Cochran Street, near the Central Railroad in the City of Dallas, Dallas County, Texas. I have had occasion to visit the place. . . . Well, on the first day of August, 1911, we were detailed on that beat, Mr. Thompson and myself, and we went up there and went to work on the evening of the 3d; well, Mr. Thompson was gone to supper. I was reporting from the Gamewell System, as we do every hour or two hours, whichever the beat may consist of, and I believe it was about 5 o'clock, probably a little after 5, when I was reporting from this box, and after I had rang in, as I turned around Mr. Minter stepped up to me and says: `I have been trying to see you fellows since you have been put here for the last day or two.' He spoke as I turned around, he made these remarks. I was by myself and Mr. Thompson had gone to supper at this time. `Well,' I says, `we have been up here ever since the first.' `Well,' he says, `I want to run a little game down here and I want to fix you boys'; `Well,' I says, `fix us how?' `Well,' he says, `I want to treat you like I have the rest of the boys that has been here.' He says, `I can stand $30 per month to give to you boys, that will be fifteen apiece not to bother me when I have a game. I don't want you boys to run in on me without notifying me. If you will let me know I will have my gang all out or scattered out when you come in, and when you come in everything will be all right. Of course, I want you boys to do your duty.' There was other conversations between me and the defendant at this time. At this time I told him he would have to see my partner, that I would rather he would talk to him about it. `Well,' he says, `I can just give you the money, you and him can divide it, that is the way I have done all the rest of the boys that has been up here,' and, he says, `You haven't heard of me having any trouble with them, have you?' And I said, `Well, you will have to see my partner and whatever he agrees to it will be all right to me,' and he said, `I am a little bit afraid of Lee,' that is my partner, Mr. Thompson, `but I know you are all right.' I says, `That may be true, too, Jim, but you will have to talk to Mr. Thompson about it,' and he insisted that I should take the money to let him run this crap game, and I would not do it, and told him I would have to see my partner, that I did not want to do anything without letting him know about it. That was all the conversation had that time. He at that time did not say *Page 650 anything with reference to the sale of whisky and beer, but after Mr. Thompson came back from supper we sat down on the gallery and I related the circumstances to Mr. Thompson. . . . After Mr. Minter had made this offer to me and I had related it to Mr. Thompson like it had occurred, to be sure and make ourselves feel better we sent to see Mr. Bartlett, the police and fire commissioner, and intended to see the board of commissioners. (Objected to and sustained.) I talked to Commissioner Bartlett on the 4th, is my best recollection, and this was on the evening of the 3d, and the next day I saw the defendant was on the evening of the 4th. We began to work at 12 in the daytime and finished our work at 12 at night, and on the evening of the 4th, Mr. Minter, when we pulled our first box after 12 o'clock, was sitting on the gallery of a cold drink stand two blocks up the railroad from his place of business, and we turned around and walked down the street, going south on the Central Railroad, and he got up and followed us to his place of business, and from there we went around over our beat as usual. He did not say anything concerning the case at that time. We were both together and stayed together, so on the evening of the 5th we went up there a little after 12 o'clock and we had been after him about a bursted hydrant, and I walked up to where the hydrant had been bursted when Minter said, `We have fixed the hydrant, now it ain't leaking'; and I said `Yes,' and after some conversation he said, `Have you seen your partner about this business?' I told him yes, I had talked to him; he said, `What did he say?' `Well,' I says, `He will do whatever is right about it.' I didn't tell him what I thought was right about it. When I pulled the last box in the evening of the 4th, Minter was at the cold drink stand at the time I pulled the box, and I went off north and went ahead to the mouth of a little alley into Hall Street. Mr. Thompson went down the Central track to a building in the shape of a V, and in a few steps we separated and when Minter got to this little alley he stopped me again and says, `Well, what does Thompson say about that?' and I says `He is willing to do what is right about it, he will treat you right,' and he says, `You just take the money and fix it with Thompson and everything will be all right,' and he made a motion and put his hand in his pocket, and I said, `I can't do it, Jim, you will have to see Thompson and talk to him.' He says, `You need not be a bit afraid of me, me and the chief are the best of friends and I will square this up with him. There is a dozen places on Main Street that is doing it,' and I said, `I would not take advantage of my partner anyway, but whatever is all right with him is all right with me'; then I caught the car and he says, `I will meet you here at this box at 8:30 or 8:40.' I says, `All right.' We went right and pulled our 8 o'clock box and Minter was not there on the night of the 4th, so the next day, on the 5th, we went to report at the box near the same little drink stand when Minter walked up and said, `Well, how does Lee feel about this matter?' I says, `He feels all right, I think.' He said, `I will just give you the money now, you can divide it with Lee or square it with Lee.' I told him I would not do it. *Page 651 `You will have to see Mr. Thompson,' I says, and I turned my head and saw Thompson was coming up the railroad track about 75 or 100 feet from me, and I said, `There comes Lee now, and you just speak to him about the matter, and whatever he wants to do I will do,' and he says, `All right.' Lee walked to where we were. Minter says: `Lee, we have just been talking about this money matter,' and he says, `Well, Jim, what do you want us to let you do, to run a wide open gambling house and sell bootleg whisky and sell all the whisky you can?' Well, Minter studied and he says, `I want you boys to do your duty.' So Lee told him, he says, `That would be putting us in a kind of a close place if we were to do a thing like that,' and he says, `No, you boys are dead safe. Don't worry about me, I have done all the men that worked this beat that way. I could square it with the chief of police, but it would cost me a little bit more. There is dozens of them on Main Street that is squaring it with him,' and he says, `Jim, if you can square it with the chief of police that is the man for you to go and see,' and he says, `No, I would rather give it to you boys just like I have the rest of them.' And he told us we would never have any trouble with him. I said, `Whatever my partner wants to do about it is satisfactory to me.' Well, he says, `One of you step in the little room (there was a little barber shop room about ten feet from where we were standing that had a chair in it, so if anybody came in for a shave the negro would come out of the confectionery stand and shave him). Now,' he says, `one of you step in here with me and I will pay the $15 and then the other step in and I will pay him,' and I says, `No, this is a good enough place, I don't see anyone near around here but just us,' and he says, `Well, if you boys are a mind to you could make my tail warm for handing you this money in the presence of both of you.' I says, `That is good enough right here.' He says, `All right'; just run his hand down in his pocket, pulled out his money and he was standing between me and Mr. Thompson at the time and as he just turned around me — I was standing on the west side of him and Lee was down the curb from him, and he just slipped it to me and when he had I raised up in front of Mr. Thompson and he handed him a five and ten dollar bill and then I just turned around at that end, walked over and unlocked the box and Jim said, `What are you fellows going to do?' and I said, `We are going to lock you up'; and we locked him up in the City Hall and we filed charges against him. Q. Is that the money he gave you, $30? A. That is the sum, $30, that he gave us. There was a mark put upon it in the jury room. I put the marks on it. With reference to selling beer and whisky, he told us, as I said before, when Mr. Thompson asked him what do you expect of us, to let you run a blind tiger up there and gamble and sell whisky, he told us there was a game and not to run in on him when he had the game, and he said, `I have got plenty of whisky here, if you boys want any you do not have to come to the place after it, let me know and I will furnish you with all you want and it won't cost you a cent.' . . . The way he put it to us, it was on anything he *Page 652 might be doing not to arrest him or bother him, but to let him know and he would have the bunch out when we came in and everything would be all right. . . . Well, when we went there he had this booze up there; he had five kegs of Dallas Brewery beer in a little room locked up . . . and he had his whisky there behind the bar, that is, whisky glasses. The same evening that we arrested him, after we came back from being down here, we had started by his place, to the west side of the building, into a negro pool hall; he called us and says, `Come over here a minute,' and we walked over there; now, he said, `You fellows have done me a dirty trick,' and, he says `I want you to distinctly understand, stay off of my premises, don't come in my place of business.' I says, `Man, what are you talking about?' I says, `You are running a public place, ain't you?' Now, I says, `If you think you can keep us out of a public place, go ahead; we were sent up here to work this beat and we are going to do it, if you have to leave here,' and we found this booze that I have mentioned heretofore, and under the end of the bar, the south end of the bar, there were two kegs on tap; all you had to do was to turn the faucet. The court: Two kegs of what? A. Dallas Brewery beer. Q. Was it beer capable of producing intoxication? A. Yes, sir. . . . We found two kegs of beer and had occasion to go around behind the bar, and I investigated this particular corner. It was a closed box and if you did not know it or did not suspicion it or look at it you would not know there was any beer in there. It was a closed box under the south end of the bar, and I found these two kegs there and the faucet tapped. Found some small size whisky glasses and also beer glasses there; regular set of bar fixtures. Found some whisky but I did not taste it. There were about eight-ten or a dozen whisky glasses and seven or eight beer glasses sitting on the bar. I also saw five kegs of beer in a little back room right at the rear of the building where the bar was. It was the same building in which I afterwards had a conference with Minter in which he told me to keep out of his place of business. He was sitting in a chair right by the corner, leaning back against this building where all of this originated when he told us to keep off his premises and place of business, and just up at the rear at the back end they had doors and there were holes that had cork in it and if you pushed the cork out you could see plainly the five kegs sitting in there with ice all over the tops. I knew some of the colored men that worked around there, a negro by the name of John Forrest that worked there; one named Wynn; one named Green, and one named Geo. Milam. I saw a Federal license which was tacked up behind the south wall. Within a few hours after we arrested Minter we had a conversation with him in which he told us never to come into his house; that was the last time I remember talking to him. All he told I have stated. This is out of the saloon limits in the dry district."
The State then introduced in evidence the said money. It was thoroughly identified as the same that was handed by appellant to said witness Joe Davis and was shown to be lawful current money of the United States of America. *Page 653
Cross-examination: "I encouraged the appointment of John Ryan as chief of police. We have been the very best of friends for years. I was not ambitious to be promoted from patrolman, only sought the assistance of my friends for the purpose of being promoted in this way. I said if a man was entitled to it that he ought to have it, and I think I ought to have a little bit better job than what I got, and if they did not see fit to give it to me it was satisfactory. It never occurred to my mind to be chief of police, and I was not ambitions to be such. I did not report to John Ryan, the chief of police, what the defendant told me about that he could square it with the chief of police as testified about in my direct testimony. I reported it to Mr. Bartlett, the police commissioner. I looked at it that he has the nomination and control of the appointment of the chief of police. I can not say positively whether I saw the Federal license I testified about before or after Minter's arrest, but it was something along about the first part of August up until the 6th or 8th. I looked at the license and saw that it was made out in the name of Brewer, if I am not mistaken, the initials were J.B. Brewer." Here the witness was handed a license to inspect, and he testified: "I would not swear whether it was the same one or not, but I could swear that it is the same name as was on the license I looked at. The number and street indicated on the license is 3121 Cochran Street, where the place of business was. I do not remember whether it was at a time during the year after the license was issued or before the date of the expiration of that license. I saw it in August between the 1st of August and 6th or 7th in 1911. From its face that license was issued July 3, 1911. I could not say that I see any difference in any way between this license and the license I saw on that occasion. I do not detect any difference and it bears the same name of J.B. Brewer. I never looked at any bill while I was inspecting the property at 3121 Cochran Street about the 4th or 5th of August, 1911, when I saw the United States license and beer and whisky and did not see any bill. I do not know J.B. Brewer and do not know that such a man existed. I mentioned to the jury that I inquired for such a man and was not able to find a man by that name. I found a man by the name of C.W. Cullen; I know him very well. I did not have a warrant issued for one J.B. Brewer. I did not cease in trying to locate a man by the name of J.B. Brewer whose bond had been forfeited in the County Court at Law of Dallas County, but I was not able to find him. I do not know that I asked any police officer, either predecessor of mine or otherwise about J.B. Brewer. I do not recall whether I did or not, but I asked a number in that neighborhood if they knew J.B. Brewer. I testified in the examining trial on the 15th day of August, 1911, somewhere around either nine or ten days after I arrested the defendant. My memory was then sharper about the transaction than it is now. I testified about the facts as I understood them. I think I testified in these very words on the examining trial, if I am not mistaken about it. That in the first conference had with this defendant he told me that he wanted to run a *Page 654 crap game up there and what he wanted me to do was to notify him and he would get the crowd out of the way. . . . I reported in and turned around . . . and when I turned around Minter says, `I would like to run a little game up there,' and he says, `How about fixing you boys?' and I says, `Fixing us how?' and he says, `I can give you $30 a month to let me run up here, I want to run a little game,' and I told him that I didn't know, that I would have to consult my partner, Mr. Thompson. . . . On that occasion he never offered us any money at all. He never pulled any out of his pocket. I do not know whether he had his hand in his pocket or out of it. There were three conferences pulled off before we accepted the money, and during one of these conferences he did put his hand in his pocket. I would not say whether he did or not put his hand in his pocket in the first conference on the evening of the 3d, but if it is in that writing there, I testified to it then. I did not ask Minter in the conversation in which Mr. Thompson was present and in which I said defendant told me that he could fix it with the chief of police, and Mr. Thompson said that was the man to go and see; whether or not he had the exact change, I never asked him anything and I am sure about it. I did not testify on the examining trial as follows: `Mr. Thompson says to him that is the man for you to go and see. That is the man for you to see.' He did not say, either. He answered that he would rather give it to the men on the beat, and I did not testify either on the examining trial as follows: `I asked him if he had the exact change. I do not remember what he did say, whether he had the exact change or not.' I am certain that I did not so testify. When Lee asked the defendant, `Now, what do you expect us to do?' he told us in that conversation that he wanted us to do our duty, and it is true that the only thing he answered when Lee Thompson asked him, `What do you expect us to do?' that his only answer was, `Of course, I want you boys to do your duty.' I was examined at the examining trial by counsel for the State and cross-examined by counsel for defendant. Mr. Walter Seay was counsel in cross-examining me. I am pretty sure I said at the examining trial, if I did not overlook it, about the defendant saying anything about keeping off his premises. I testified that he ordered us to stay away from his premises. If I am not mistaken I so testified at the examining trial. I would be more likely to think of things nine days after it happened than months after. Q. Now, you and Lee Thompson, after the conversation, you agreed between yourselves that you would carry the matter on to a point where you would get him to deliver the money to you and then arrest him? A. We did not try to get him to do anything. He did it himself. We knew what we would have to swear against, and we would not accept it single. If we were to be bribed, we were both to be bribed; $15 apiece he said that is what he had been paying all of them. I accepted the $15 but Mr. Minter was standing between us. The $30 was given to both of us. We agreed to take the money together, that is, Thompson and I, not separate. This is all we agreed upon. We discussed *Page 655 the matter that the way to make the case. was to get him to offer us the money together and not separately. It was our judgment in the case that unless the money was delivered to myself and Thompson we could not make out a case against him. We knew it was as much against the law to bribe as to accept it. At no time was there any other person present except myself and Lee Thompson and Minter, and these are the only three witnesses in the world to that occurrence, and no one else did see or could have seen or heard this matter. I am absolutely sure."
Lee Thompson testified: "I am a policeman and have been one off and on for ten or eleven years, and am now a policeman in the City of Dallas, Dallas County, Texas, and am a partner of Joe Davis. I know Jim Minter. I have talked to him about a bribe. It was about noon of the 5th of the month, Joe Davis, himself and I were present. I met Mr. Minter and Mr. Davis at the corner of Hall and the Central Railroad a little after noon that day, and he broached me on the subject. I forget the words, anyway, we met there and the subject came up in regard to this money, and I told Mr. Minter that I did not know about that, that I was a little bit shaky on that proposition, or something to that effect. Anyway, I asked him if that was the best he could do, that that was a mighty little money, and I told him I thought he ought to do better than that, and he says, `That is what the other boys have been taking,' and I says, `You ought to do better than that, Jim; what do you expect to do?' He hesitated a moment, and I said, `You expect us to let you run a game?' and he said, `You boys go and do your duty.' He says, `Don't run in on me. Give me a chance and I will scatter. `Joe,' I think he says, he says, `Joe, come on and I will get the money,' and Joe says, `Give it to us right here,' and I says, `Yes, don't go away from here, we will take it here the same as anywhere else.' It throwed me between them, but we were all in a bunch. He just walked up to Mr. Davis and put his hand in his pocket like this and stuck it out like that, a five and ten and a ten and a five, and Joe turned it so I could see it. I said, `Just consider yourself under arrest right now. You have gotten yourself in the same fix you wanted to put us in.'"
Cross-examination: "There was something said about change. I am not sure that Joe asked him if he had the exact change, but there was some remark made in regard to change. I didn't really expect he would do a thing of that kind, come in a manner that way. It come very much in the way Joe and I had talked over the matter about how we would bring it about. We had agreed that we would both be together when we got him to deliver the money to us. Minter did not say that there was $15 apiece for us, $15 each, we was together and he only handed it to one of us. He did not say, `I will take you in a little barber shop and give you your $15 and then take Joe in and give him $15,' as there was not any barber shop there. It was the understanding, however, that he was to bribe both of us and we expected both to get the money or be present if it was gotten at all."
The State proved by other witnesses and deputy sheriffs that shortly *Page 656 prior to this alleged bribery appellant, at said designated place, practically run a saloon there; that he had whisky and beer and whisky and beer glasses and the paraphernalia in connection with a saloon; that said place was raided by said officers and they found all this in his said place. By other witnesses it was shown that just before the time of this bribery they bought beer from appellant at that place and that the beer was intoxicating; that they bought it in bottles and in buckets and, in effect, that appellant kept it there regularly on tap for sale.
It was admitted by both sides on the trial that the City of Dallas was non-local option territory and that appellant's said place of business was outside of the saloon limits of the City of Dallas, and that a saloon license could not issue under the laws of the city to operate a saloon at that place; that appellant's said place was in the City of Dallas, outside of the said saloon limits; that in the charter of said city there are certain limits prescribed where saloons may run and where license may be issued, but that this place was outside of the said saloon limits and no sale of liquor at retail could obtain at that place.
The question of who is an accomplice and what it takes to make an accomplice is not always kept clear by our decisions. The cases are frequently indiscriminately cited on this subject. In speaking of accomplices and in treating of it in this case, we do it in its broadest sense, — that is, to include principals, accomplices as such, and accessories.
There are two rules on this subject as clear and distinct as can be. One is: An accomplice is a person who, knowingly, voluntarily and with common intent with the principal offender, unites in the commission of the crime.
The other is tersely stated by this court in Bush v. State, 151 S.W. Rep., 556, in substance: Where an officer or other party understands or is led to believe that a violation of the law is in contemplation and takes steps to detect that crime, or get evidence by which the guilty party may be punished, he would not be an accomplice. In such case he is not an original party to the bringing about the crime and is not guilty of originating or initiating it. In that character of case his connection with it is after the inception of the crime and after it has been determined upon and he only then gets into it as a detective or for the purpose of arresting the party and bringing him to punishment.
In the case of Allison v. State, 14 Texas Crim. App., 122, this court, through Presiding Judge White, said:
"From the evidence before us it does not appear that the witness Massey was an accomplice. He had been informed by defendant of his (defendant's) intention to steal Justice's horse, and he immediately told Justice's sons, and Justice himself subsequently of defendant's intention. It is true that Justice and Massey then arranged that Justice should have his horse at a certain place, doubtless with a view that they might capture defendant in the very act of committing the theft, and it is inferable that there was a further understanding between the parties *Page 657 that Massey was to accompany the defendant to the place and at the time when the theft was to be committed, ostensibly as his confederate, but in fact that he might aid in his arrest after the crime was consummated. Had this agreement been carried out, and the horse stolen at the time, place and under these circumstances mentioned, Massey, in law, would not have been an accomplice in the theft. (Pigg v. State, 43 Tex. 108; Johnson v. State, 3 Texas Crim. App., 590.)
"But this agreement was not carried out, and the horse was stolen on another occasion and in a different place. Instead of being an accomplice, it appears to us from the evidence that Massey acted throughout the part of a law-abiding citizen who, knowing that a crime was about to be committed, did, or was willing to do, all in his power to prevent it or bring its perpetrator to punishment. There was no occasion for the court to charge the law with regard to accomplice testimony in this case."
In Chitister v. State, 33 Tex.Crim. Rep., Presiding Judge Davidson, in discussing whether or not a witness in that case was an accomplice, for the court, said:
"That he (the witness) induced appellant to give him property to secure his departure from the State in order to be rid of his testimony did not, of itself, constitute the witness Crowley an accessory. In order to render the witness an accessory, he must have concealed the accused or given him some aid so that he may have evaded an arrest or trial, or the execution of his sentence. Penal Code, art. 86. This was not done. The witness did accept the property, and also agreed to leave the State. He, however, did not leave the State, and it is shown that he sought the bribe as a means of securing testimony for the purpose of convicting appellant for the theft of the animal set out in the indictment. He was active in the prosecution of the case, and testified in behalf of the State on the trial. This evidence did not require a charge upon the law applicable to accomplice testimony, and the court did not err in failing to so charge."
In Wharton's Crim. Ev., vol. 1, in sec. 440 (10 Ed.), he says: "An accomplice is a person who knowingly, voluntarily, and with common intent with the principal offender, unites in the commission of the crime. . . . There are certain relations recognized by the law, in which the voluntary co-operation of a person with the accused does not render such person an accomplice. Thus, those who co-operate with a view to aid justice by detecting a crime, such as accepting money with which to purchase intoxicating liquors to obtain evidence of a violation of the law, for the purpose of prosecuting the seller for an unlawful sale, is not an accomplice; nor is an informer technically an accomplice; nor a detective who joins a criminal organization for the purpose of exposing it, even though, to aid such exposure he unites in and apparently approves its counsels; nor the agent who purchases a libelous publication for the purpose of giving evidence against the publisher; nor a disguised *Page 658 emissary who, by purporting to be a friend of the parties suspected, seeks to draw from them inculpatory information."
In 4 Enc. of Ev., p. 630, the law on this subject is thus stated: "The fact that a detective in securing evidence of a crime is the instrument or means through which the law is violated does not make him an accomplice within the rule requiring the testimony of accomplices to be corroborated. Thus one who purchases liquor sold in violation of law for the purpose of securing the conviction of the offender is not an accomplice, nor is one who receives a counterfeit, or stolen goods, or buys a lottery ticket, or participates in a gambling game for the same purpose.
"So, also, one who pretends to be an accomplice, and apparently assists in the preparations for a crime with the purpose and intention of frustrating the design of the guilty parties and securing their punishment is not an accomplice whose testimony requires corroboration, even though he actually takes an apparent part in the commission of the offense."
In the recent work of Mr. Underhill (2 Ed.) on Crim. Ev., in section 69, he says: "A person who, as a detective, associates with criminals or communicates with or aids them solely for the purpose of discovering commission of crime, and procuring the punishment of the criminals, is not an accomplice."
In 12 Cyc., p. 447, the rule is thus laid down: "One who, as a detective, associates with criminals solely for the purpose of discovering and making known their crimes and who acts throughout with this purpose, and without any criminal intent, is not an accomplice, and it is immaterial that he encourages or aids in the commission of the crime."
It is needless to cite other authorities along this line. The books are full of them. There is not, and can not be, any doubt as to the correctness of the rule, and the application of it in the case.
In this case the evidence we have given above, in our opinion, demonstrates that the witnesses Joe Davis and Lee Thompson, the policemen, are strictly within this rule and were not accomplices. The testimony excludes the idea that they were. One test is, was the evidence sufficient to justify their indictment or conviction as an accomplice? No honest grand jury would or could have indicted either or both of these officers on this testimony. No court would for one moment on trial, submit to the jury for a finding their guilt or the guilt of either of them if they had been indicted and tried as accomplices, or principals in this crime of bribery on this testimony. A peremptory instruction would have been given to acquit them, even if any grand jury had ever indicted them and they were tried on his evidence.
In appellant's brief and argument in this case, the case of Dever v. State, 37 Tex.Crim. Rep., was pressed with the utmost vigor and it was claimed that the opinion in this case was in direct conflict with that. We have in connection with this case, and many times recently, had occasion to study and cite the Dever case. In our opinion there is *Page 659 no conflict whatever between this case and the Dever case. In the recent case of Holmes v. State, decided April 23d, this court pointed out some of the distinguishing features of the Dever case, and, we think, made it clear that it has no application to this, as it had none in the Holmes case. In the Dever case it was demonstrated that the witness Mayfield was an accomplice by actual participation in the crime with the intent to do so and to get a reward. In this case we think the evidence demonstrates the reverse of this, and that neither of the witnesses, Davis or Thompson, had any intent whatever to participate or unite with appellant in the commission of the crime; but, on the contrary, all that they said to appellant, or did in connection therewith, was solely for the purpose of procuring the evidence against him to secure his conviction and that this was their sole purpose and intent.
On the other question of appellant's contention, that it is a legal impossibility for one man to commit bribery; that there must be the giver and the acceptor with corrupt purpose and intent of the bribe to constitute the offense, we have but little further to say.
The guilt of an accused is not measured by the intent of another but by his own intent.
Appellant has cited no authority to sustain his position other than the statute and the case of Newman v. People, 47 Pac. Rep., 278, a case decided by the Supreme Court of Colorado. In that case that question was not an issue. The judge, in delivering the opinion, merely, as argument, stated: "To constitute bribery the act of at least two persons is essential, — that of him who gives and him who receives. The minds of the two must concur." We do not regard the Colorado case as authority and would not follow it, even if it were not in the face of reason and the decisions of other able courts cited and quoted in the original opinion herein.
In addition to this, our own court has repeatedly decided the same question precisely, in principle, and it is well established.
In the case of Mercer v. State, 17 Texas Crim. App., 452, wherein this court said it was ingeniously and ably argued by counsel for defendant that our statute defining incest in using the words, "carnally know each other," presupposes the consent of both parties and makes it necessary that they should mutually carnally know each other; that the offense will not be complete where the man only acts voluntarily in the illicit connection; but, to make the offense complete, both the man and the woman must have the carnal knowledge of each other mentally as well as bodily, the court, through Judge Willson, on this point in that case, said:
"But, in our opinion, the great weight of reason and of authority is against the doctrine announced in the authorities cited and contended for by counsel for defendant. Mr. Bishop says, in treating of this class of offenses: `As every offense to be punishable must be voluntary, so in particular must be adultery. But alike in adultery and, it is believed, in fornication and in incest, where the crime consists in one's *Page 660 unlawful carnal knowledge of another, it is immaterial whether the other participated under circumstances to incur guilt or not, — just as sodomy may be committed either with a responsible human being, or an irresponsible one, or a beast. Therefore, the same act of penetrating a woman who, for example, is too drunk to give consent, may be prosecuted either as rape or as adultery, at the election of the prosecuting power. There are cases which deny this, and hold that adultery, fornication and incest can be committed only with consenting persons, and what is rape can not be one of the others. But they are believed to proceed partly, and perhaps entirely, on special terms of statutes; certainly, in principle, they have no other just foundation.' (Bish. on Stat. Crimes, sec. 660.)
"In the case of The People v. Rouse, 2 Mich. N.P., 209, it was held upon a trial for incest, where the proof tended to show that the intercourse was forcible and against the will of the female, — the complaining witness, — with whom the intercourse was had, that the accused might be convicted for incest even if the jury should find that the force used was such as, under the circumstances, to amount to rape. In Raiford v. State,68 Ga. 672, it was held that, in the perpetration of the crime of incest, there may be a certain force or power exerted, resulting from the age, relationship, or circumstances of the parties, which, nevertheless, may not amount to the violence necessary to constitute rape. In Alonzo v. State, 15 Texas Crim. App., 378, the question now before us was discussed and the authorities reviewed at some length, the conclusion arrived at and announced being adverse to the view contended for by defendant's counsel in this case. If our view of the law as enunciated in the last cited case be correct, and we believe it is, then that case is decisive of the question we have been discussing, and accordingly we hold that, notwithstanding the evidence in this case may show that the defendant committed rape upon his daughter, he may be prosecuted and convicted for incest; and that, to make him guilty of incest, it was not necessary that his daughter should have consented to his carnal knowledge of her. She might be entirely innocent of any crime, and yet he might be guilty of rape or incest, or both, by having carnal knowledge of her. We can see nothing in our statute defining the crimes of rape and of incest which militates against this view."
Again, this court in Alonzo v. State, 15 Texas Crim. App., 378, in discussing the same principle, in an adultery case wherein it was contended that where one party had been tried and acquitted of the offense, the other party could not be tried and convicted because it took the act of both to make the offense, and if one was not guilty the other could not be, this court, through Judge Willson, said:
"We can not give our assent to the doctrine of the above cited cases, nor to the reasoning upon which the same are founded. We think the reasoning of these decisions is based upon false premises and is fallacious. While it is true that, to constitute adultery, there must be a joint physical act, it is certainly not true that there must be a joint criminal *Page 661 intent. The bodies must concur in the act, but the minds may not. While the criminal intent may exist in the mind of one of the parties to the physical act, there may be no such intent in the mind of the other party. One may be guilty, the other innocent, and yet the joint physical act necessary to constitute adultery may be complete. Thus, if one of the parties was, at the time of committing the physical act, insane, certainly such party has committed no crime; but it certainly can not be contended that the other party, who was sane, has committed no crime. So, if one of the parties was mistaken as to a matter of fact, after exercising due care to ascertain the truth in relation to such fact, which fact, had it been true, would have rendered the alleged criminal act legal and innocent, the party so acting under such mistake of fact would be innocent of crime. (Penal Code, art. 46; Watson v. State, 13 Texas Crim. App., 76.) But suppose the other party was not mistaken as to such fact, but, on the contrary, well knew the true fact which rendered the connection illicit, would this party be regarded as guilty of no offense because the mistaken party was innocent?
"If the North Carolina rule is correct, it must apply also to fornication, bigamy and incest. Now, suppose a father and his daughter are indicted for incestuous intercourse with each other. Upon trial of the daughter it is conclusively proved that at the time of committing the physical act she was an idiot, or that she was wholly ignorant of the relationship existing between herself and her father, without any fault of hers; of course, in either of these cases she must be acquitted. Would it not be monstrous to hold that because of her innocence — her acquittal — the beastly father must go unpunished for his unnatural crime? Such can not be the law, and such, we believe, is not the law as declared by the weight of authority."
And the court in that case cites the decisions and text-book writers abundantly, sustaining the opinion and principle decided in that case.
It is needless to cite other authorities on this point. The motion is overruled.
Overruled.