Coleman v. State Ex Rel. Mitchell , 132 Fla. 845 ( 1938 )

This cause is before the Court on a writ of error presented in the name of D.C. Coleman, as Sheriff of Dade County, Florida, from an order dated December 13th, 1937, entered by the Honorable Arthur Gomez, a Judge of the Circuit Court of Dade County, Florida, directing and commanding the release or discharge from custody of the law, Lowell Mitchell, who was then being held by the Sheriff of Dade County, Florida, on a capias predicated on an information for bribery presented by the Honorable Robt. R. Taylor, as County Solicitor of the Criminal Court of Record in and for Dade County, Florida. The order of discharge is sought to be reversed in this Court. The brief of counsel for plaintiff in error fails to cite the Section of Compiled General Laws of Florida under which the information was drafted, while counsel for defendant in error cites a number of Sections of C.G.L., applicable to the offense of bribery and concludes generally that it was drafted under Section 7481 C.G.L. The lower court, in its opinion discharging petitioner, intimates the information was drafted under Section 7481 C.G.L., and in the opinion considers or interprets with Section 7486 C.G.L.

We are reasonably certain of our position when we state the information before us was drafted under Section 7481 C.G.L., which is as follows:

"Bribery of Executive, Legislative or Judicial Officer. Whoever corruptly gives, offers or promises to any executive, legislative or judicial officer, after his election or appointment, either before or after he is qualified, or has taken his seat, any gift or gratuity whatever, with intent to influence his act, vote, opinion, decision or judgment on any matter, question, cause or proceeding which may be then pending, or which may by law come or be brought before him in his official capacity, shall be punished by imprisonment in the State prison not exceeding five years, or in the county jail not exceeding one year, or by fine not exceeding three thousand dollars."

The information is as follows:

"ROBT. R. TAYLOR, County Solicitor for the County of Dade, prosecuting for the State of Florida, in the said County, under oath, information makes that LOWELL MITCHELL and WANDO MITCHELL of the County of Dade and State of Florida, on the 2nd day of November, in the year of our Lord, one thousand nine hundred and thirty-seven, in the County and State aforesaid, did then and there unlawfully and corruptly commit the crime of bribery in this: That on November 2, 1937, one H. KEEN was the duly appointed, authorized and acting deputy tax collector for Hayes Wood, who was then and there the duly elected, qualified and acting tax collector of Dade County, Florida, and it was then and there the duty of the said H. Keen, as deputy as aforesaid, to issue, in the name of the said Hayes Wood as Tax Collector, as aforesaid, occupational licenses to such persons who paid the sums therefor as fixed by law and who otherwise complied with the laws regulating the inspection and collection of occupational licenses and taxes; and the said Lowell Mitchell then and there with the intent and purpose unlawfully and corruptly to cause the said H. Keen, as deputy tax collector as aforesaid, the said Lowell Mitchell then and there well knowing the official capacity of said H. Keen, to issue to Wando Mitchell a pretended duplicate license to engage in the occupation of a phrenologist at Indian Village on Northwest North River Drive, in Dade County, Florida, without paying therefor the sum required by law, the said Wando Mitchell not then and there having an original license, or any other license, to engage in the occupation of phrenologist at said place, which fact was then and there well known to said Lowell Mitchell, and said Lowell Mitchell, with the intent aforesaid, intended that the said Wando Mitchell would use said pretended duplicate license in order to engage in the occupation of phrenologist at said place and without paying therefor the sum required by law, and in order to induce the said H. Keen, in his capacity aforesaid, to issue to said Wando Mitchell the said pretended duplicate license, the said Lowell Mitchell then and there, in the county and state aforesaid, with the intent and purpose, as aforesaid, did corruptly and unlawfully offer and promise to pay to said H. Keen, which said offer and promise was intended unlawfully and corruptly to influence said H. Keen, a large sum of money or currency of the United States of America, to-wit: Twenty-five dollars ($25.00), which said sum the said Lowell Mitchell then and there knew that the said H. Keen was not authorized by law to accept or exact, and the said Wando Mitchell was then and there present for the purpose and intent of aiding and abetting and procuring the said Lowell Mitchell in the said bribery contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida."

Bribery comprehends and includes the crime of attempted bribery. Bribery and attempted bribery are considered and discussed in Volume 8, pages 890-1, par. 10, American Jurisprudence, viz.:

"Attempt to Bribe. Bribery at common law is the offering, giving, receiving, or soliciting of anything of value with intent to influence the recipient's action as a public official, whether executive, legislative, or judicial. It therefore comprehends the crime of attempted bribery. At common law bribery and an attempt to bribe are both misdemeanors. Hence, apart from statute, any distinction between bribery and an attempt to bribe is of no practical importance. It is the offering of the bribe that constitutes the substantive crime of bribery, although such offer is separately indictable as an attempt to bribe. Many of the states have denounced as crime certain transactions which fall short of completed bribery. An offer to pay a bribe, without regard to its acceptance, is a crime in some states, but not in others." * * *

It is contended by counsel for plaintiff in error that the indictment, supra, is sustained by the common law of England which was in force in England and of a general nature on July 4, 1776. See Section 87 C.G.L. Likewise, State, ex rel. Burr, v. Jacksonville Terminal Co., 90 Fla. 721, 106 So.2d 576, and Woodbury v. Tampa Water Works Co., 57 Fla. 243, 249, 49 So.2d 556, 21 L.R.A. (N.S.) 1034, are cited and relied upon in this Court. We can fully agree with the principles of law enunciated by each of these authorities. It is doubtful if this Court can adopt this contention, in face of Section 7126 C.G.L. to the effect that the common law of England, except in so far as the same relates to the modes and degrees of punishment, shall be of full force in this State, where there is no existing provisions by statute on the subject. It does appear that the Legislature of Florida has, from time to time, enacted laws applicable to bribery as charged in the indictment in this case and in so doing we now have existing statutes on this subject and the same are in derogation of the common law. We no longer look to the common law for the crime of bribery, but look to Sections 7481, 7482, 7483, 7484, 7485, 7486, 7487, 7488, and 8172 C.G.L.

It is next contended that the information is fatally defective because the Deputy Tax Collector, H. Keen, was and is not an executive, judicial or legislative officer within the meaning of Section 7481 C.G.L. It will be observed that the position of Deputy Tax Collector was created by statute and he obtained his authority under appointment by the Tax Collector, who in turn is elected by the people. The duties and compensation of a Deputy Tax Collector are prescribed by Section 955 C.G.L. The Constitution of Florida provides that all county and State officers not appointed by the Governor shall be elected by the people and there is no constitutional provision for the election or appointment by the Governor of a Deputy Tax Collector. See Section 27, Article III, of the Constitution of Florida. We therefore hold that a Deputy Tax Collector is not an executive, legislative or judicial officer within the meaning of Section 7481 C.G.L.

Let us consider whether or not the information, supra, is supported by Section 7496 C.G.L., which reads as follows:

"It shall be unlawful for any officer, State, county or municipal, or any public appointee, or any deputy of any such officer or appointee, to exact or accept any reward, compensation, or other remuneration other than those provided by law, from any person whatsoever for the performance, non-performance or violation of any law, rule or regulation that may be incumbent upon the said officer or appointee to administer, respect, perform, execute or to have executed; Provided, that nothing herein shall be construed so as to preclude a sheriff or his deputies, city marshal or policeman from accepting rewards or remuneration for services performed in apprehending any criminal."

It will be observed that this Section embraces any officer, State, county or municipal, or any public appointee or any deputy of any such officer or appointee and this classification includes the position of a Deputy Tax Collector.

This Section embraces the office of Deputy Tax Collector as described in the information. It makes it unlawful to exact oraccept any reward, etc., while the information charges the Deputy Tax Collector was "unlawfully offered and promised a reward" and we are convinced that the information cannot be supported by Section 7486. The statutory crime of bribery was considered by this Court in Streeter v. State, 89 Fla. 400, 104 So.2d 858; Colson v. State, 71 Fla. 267, 71 So.2d 277; State v. Pearce, 14 Fla. 153.

There is no error in the record and the judgment appealed from is hereby affirmed.

WHITFIELD and TERRELL, J.J., concur.

BROWN and BUFORD, J.J., dissent.