In a lengthy motion appellant complains of practically every disposition made of each contention offered by him and evidences much dissatisfaction with such dispositions. We have again gone over this record and will, as much as we are able, endeavor to dispose of such matters as were not written on fully in the original opinion.
It is again contended that the statute upon which this prosecution is based did not contemplate a bribe offered an officer-elect, such as a sheriff-elect. The basis of this contention that Steve Guthrie was not a sheriff-elect seems to be that he had not been thus declared by the proper authority canvassing the votes and returns of the election and thus properly announcing its results. He also contends that the statute, Art. 158, P. C., did not denounce as an offense an offer to bribe a sheriff-elect.
In our original opinion, we quoted the provisions of Art. 158, P. C., and placed a sheriff in the category of the Executive Department of our government, and thus one whose attempted bribe was denounced. Unquestionably, Mr. Guthrie is now a sheriff and was such at the time of this trial, and as such is an officer of the government and had been elected as such in November, 1947, by a vote of the people, although he had not taken the oath of office nor qualified at the time set forth in the indictment. Therefore, appellant says that Mr. Guthrie was not such an officer until he had taken the oath and qualified as such, and the statute did not denounce an effort to bribe him as such officer-elect. We think the statute itself demonstrates the fallacy of such reasoning. It says in part:
"Whoever shall bribe or offer to bribe any executive, legislative or judicial officer after his election or appointment, and either before or after he shall have been qualified or entered upon the duties of his office," etc.
Surely the words "either before or after he shall have qualified or entered upon the duties of his office" contemplates the bribery of an officer who has been elected by the people but has *Page 527 not yet qualified. Unquestionably Guthrie had been elected by the people in November as the sheriff of Dallas County, and after such election and before he had qualified, the proof shows that certain propositions were made to him which were the basis of this offer to bribe. The canvassing of the returns of an election is merely a declaration of the result — a ministerial duty — and not the election. Nobody votes at such canvassing. The voting as well as the election is past, and it is but an ascertainment of the number of votes cast and for whom, the election having already been had; and from the date of the election until the taking of the oath and filing of the bond, the man receiving the highest number of votes therefor was an officer-elect, and should be designated as such in the event of a proposition of someone for an attempt to bribe such officer-elect.
We next find appellant again complaining under his insistence that if he did make an offer to bribe the sheriff-elect, then such an idea relative to a bribe was originated by Guthrie and Butler and that appellant was the victim of an inducement to violate the law by these two State's witnesses and by them induced to enter into such negotiations relative to such bribe.
It is made clear in Davis v. State, 70 Tex.Crim. R.,158 S.W. 288, that even though an accused had been led to make an offer to bribe by inducing, by words or in writing, acts upon the part of the person thus intended to be bribed, nevertheless, such inductment would not relieve the act of accused of its criminality; it might affect the status of those who had induced the offer to bribe, but could not relieve the odium attached by law to the offense. Evidently, in view of the holding in Davis v. State, supra, the careful trial judge defined the law of accomplice to the jury and submitted to them the question as to whether the witnesses, Guthrie and Butler, were accomplices and their relation to the case in the event the jury found them to be such. We think this was sufficient under the facts here present as to the appellant's contention. See Holmes v. State, 70 Tex.Crim. R., 156 S.W. 1172; Minter v. State, 70 Tex.Crim. R., 159 S.W. 286; Hyde v. State,73 Tex. Crim. 542, 165 S.W. 195.
We think the record is replete with matters corroborative of Guthrie and Butler, regardless of their status as accomplices, although we say we do not think that the testimony indicates in anywise their accompliceship.
We see no harm having resulted to appellant by a refusal of the trial court to appoint a different bailiff to wait upon *Page 528 the jury herein. There was no reason given why the regular bailiff should be set aside except that he was serving under Sheriff Guthrie; and unless it was shown that he had disqualified himself in some way, we cannot impute error where none is shown. The bailiff testified that he had held a position as deputy sheriff in Dallas County for 20 years continuously; that as bailiff, it was his duty to wait on the court and the jury, to sleep in the same room with them and escort them to their meals and see that they were kept together; that his duties did not require that he assist in the selection of the jury and that as such bailiff, he would follow the instructions of the court to the letter. This matter was not mentioned in the motion for a new trial, where same could have been gone into, if necessary, and no showing was made during the trial nor on the hearing of the motion relative to any misconduct of this deputy sheriff acting as bailiff. We do find an affidavit of some kind attached to this motion for a rehearing in this court which we cannot and do not consider relative to this matter, it having no place in this record at this late hour and after the trial court had lost jurisdiction hereof.
Upon an agreement on the part of appellant, certain Victrola records were produced and played before the jury. They were explained and interpreted by Ranger Naylor, who testified that he made the same, they being records of conversations between appellant, Guthrie and others relevant to the matters charged in the indictment. This was by agreement of all parties. Later, the court reporter, while making up the record for this court, again played these records and transcribed the words coming therefrom; and we find same present in a volume containing approximately 200 pages, being these records reproduced so that same could be taken down by the court reporter and sent to this court. The original records themselves are also present herein. We note the consent to the playing of such records, same being agreed to by appellant. Therefore, the reporter would have been in the same position had a voluminous record been introduced and he be allowed to dispense with taking notes at the time of its reading, but allowed to copy such instrument in his record for the reviewing court.
The matter relative to these records first came up while Ranger Naylor was on the stand and was being questioned about certain conversations purportedly heard by him in Guthrie's home. It early developed that he had made certain Victrola records of such conversations heard by him, much of such conversations not being material to the issues; and upon an attempt *Page 529 on the part of the State to segregate the material matter and have Naylor testify relative thereto, the following colloquy took place:
"Mr. McCasland (State's Attorney): That is what we purport and contend and it would take a week probably of the jury's time up here about the dog stories and other things.
"Mr. Mays: We accept the gentleman's proposition. We don't care if it takes a month. We subpoenaed these records in this Court. They know what is in them, and they have been in their possession at all times and we now challenge them, without seeing them, and without knowing them to put them on that graphaphone word by word and start it to grinding right now. * * *
"Mr. Mays: If the Court please, that is made with the distinct understanding that they play word for word and record by record.
"Mr. McCasland: And you agree to that, do you, sir?
"Mr. Mays: We agree to it and challenge you to do it."
Regardless of whether or not the discs played from were in fact introduced before the jury, we think the sounds emanating therefrom were introduced by agreement before the jury and therefore became a portion of the record on appeal, and are properly before this court regardless of where the transcription from these discs were made; they are here present and the transcription therefrom is certified to have been taken from such records that were played before the jury.
The appellant again contends that the State's Attorney commented on the defendant's failure to testify herein by using the following language:
"I want to point out to you that although they have witnesses subpoenaed, they didn't bring a single witness to deny it."
Upon an objection thereto, the trial court instructed the jury not to consider such remark for any purpose. Nevertheless, appellant's attorneys excepted to such statements and moved the court to declare a mistrial, which the court refused to do. The bill itself is incomplete because it does not show what the State's Attorney was referring to in his statement. The record is full of statements made by others in appellant's presence, as well as many statements testified to by witnesses as having been made by appellant in their presence; and the court's bill *Page 530 shows that there were subpoenaes issued by appellant for several witnesses. So far as the bill is concerned, there may have been a cloud of witnesses around by whom it could have been shown that such a statement was or was not made. The bill fails to show what the statement was; neither does it show what the same was about, nor where the same was made, nor that appellant was present when such statement was supposed to have been made.
In Branch's Ann. Tex. P. C., p. 209, sec. 374, it is said:
"A statement of the prosecuting attorney that no one had contradicted the witnesses for the State is not a reference to defendant's failure to testify where others than defendant could have testified to the facts. Bruce v. State, 53 S.W. 868; Sample v. State, 52 Tex.Crim. R., 108 S.W. 685; Sloan v. State, 170 S.W. 156."
There are further bills complaining of a purported comment on what is termed "defendant's failure to testify", which are not separately written upon, but which have been considered, and in our opinion, evidences no error.
There are further objections to testimony of what was said in appellant's presence by other persons whom it was contended by the State were connected with appellant by means of a conspiracy with him to bribe this sheriff-elect. We think these statements were admissible under the theory of a conspiracy between certain parties and appellant to obtain control of gambling, etc., in the County of Dallas, and to bribe this sheriff-elect relative thereto.
A further bill complains because after the State had rested its case herein and appellant had also announced that he rested, the State was allowed to re-open the case and introduce certain moving pictures in which appellant and others were shown to have been entering the home of Guthrie on November 7, 1947, and again on December 13, 1947, the main objection thereto being that such pictures could not be shown in the statement of facts in the event of an appeal. Objection was also made and an exception was taken to the action of the court in allowing the State to re-open its case. The re-opening of a case is a matter left largely to the discretion of the court. See 42 Tex. Jur. p. 103, sec. 75; Ashley v. State, 107 Tex. Crim. 465,296 S.W. 892.
Relative to the use of the moving pictures, we find that same *Page 531 were exhibited and shown to the jury and explained by the witness Tisdale while same were being shown to the jury, he being the person taking such pictures. He testified that the pictures accurately and correctly portrayed the matters that they purported to portray. Such matters, he testified, showed the home of Mr. Guthrie on November 7, 1947, and December 13, 1947. These two pictures showed Mr. Guthrie and appellant at one time entering this house together; and again, appellant entering the house and going back to a car in company with Guthrie. The witness who took the pictures was present and seemed to have explained them as they were shown. The pictures themselves are here present in the record, by order of the trial judge, for our inspection, and the film thus presented seems to have been made a part of the record. This moving picture might be placed in the same category as a photograph of a still object or scene which, if pertinent to the issue, is competent evidence if shown by the proof to correctly depict the material matter inquired about. The opinion is expressed that the testimony showing a contract between appellant and Mr. Guthrie at the time alleged in the indictment might have some material bearing on whether they had certain conversations relative to matters charged herein, and their association together, especially when enlarged upon by witnesses, would have a tendency at least toward showing the truth of the testimony of the State's witnesses. It is therefore held to show no error.
On account of the death of the learned trial judge who tried this cause in the lower court and the further fact that it became necessary for the judge succeeding Judge Winter King to pass upon all bills of exception, and the further fact that appellant's attorneys excepted to the qualifications appended to certain bills, thus requiring the latter judge to file his own bills, this record has assumed voluminous proportions, and while we have written at great length hereon, there remains other points raised herein not elaborated upon. Nevertheless, these points have been considered, and while not all entirely free from doubt, they are not thought to be of sufficient importance as to cause a reversal hereof.
We think it to be fairly free from doubt that appellant has received a fair trial, and thus believing, the motion will be overruled. *Page 532