Walsh v. People , 65 Ill. 58 ( 1872 )

Mr. Justice Thoenton

delivered the opinion of the Court:

The defendant below was an alderman of the common conncil of the city of Chicago. As such, he was indicted for a1 proposal, made by himself, to receive a bribe, to influence his , action in the discharge of his duties.

The indictment is, in form, an indictment at common law; and it is conceded that the statute has not created such an offense against an alderman. Our criminal code has made it an offense to propose, or agree to receive, a bribe, on the part of certain officers; but an alderman is not, either in terms or by construction, included amongst them. Rev. Stat. 1845, p„ 167, sec. 87.

It is contended that the act charged does not fall within any of the common law definitions of bribery; that no precedent can be found for such an offense, and that, as propositions to receive bribes have probably often been made, and as no case can be found in which they were regarded as criminal, the conclusion must follow that the offense charged is no offense.

The weakness of the conclusion is in the assumption of a premise, which may or may not be true. This particular phase of depravity may never before have been exhibited; and if it had been, a change might be so suddenly.made, by an acceptance of the offer and a concurrence of the. parties, as to constitute the offense of bribery, which consists in the receiving any undue reward to incline the party to act contrary to the known rules of honesty and integrity.

But the character of a particular offense can not fairly be determined from the fact that an offense exactly analogous has not been described in the books. We must test the criminality of the act by known principles of law.

At common law, bribery is a grave and serious offense against public justice; and the attempt or offer to bribe is likewise criminal. ' '

A promise of money to a corporator, to vote for a mayor of a corporation, was punishable at common law. Rex v. Plympton, 2 Lord Raym. 1377.

The attempt to bribe a privy counsellor, to procure an office, was an offense at common law. Rex v. Vaughan, 4 Burr. 2494. In that case, Lord Maks field said : “Wherever it is a crime to take, it is a crime to give. They are reciprocal. And in many cases, especially in bribery at elections to parliament, the attempt is a crime. It is complete on his side who offers it.”

Wh y is the mere unsuccessful attempt to bribe criminal? The officer refuses to take the offered reward, and his integrity is untouched—his conduct uninfluenced by it. The reason for the law is plain. The offer is a sore temptation to ¡ the weak or the depraved. It tends to corrujit, and, as the : "law abhors the least tendency to corruption, it punishes the act which is calculated to debase, and which may affect prejudicially the morals of the community.

.The attempt to bribe is, then, at common law a misde-l meaner; and the person making the offer is liable to indict-ment and punishment.

What are misdemeanors at common law? Wharton, in his work on criminal law, p. 74, says: “Misdemeanors comprise all offenses, lower than felonies, which may be the subject of indictment. They are divided into two classes: first, such as are mala in se, or penal at common law; and secondly, such as are mala prohibita, or penal by statute. Whatever, under the first class, mischievously affects the person or property of another, or openly outrages decency, or disturbs public order, or is injurious to public morals, or is a breach of official duty, when done corruptly, is the subject of indictment.”

In the case of the The King v. Higgins, 2 East, 5, the defendant was indicted for soliciting and inciting a servant to steal his master’s chattels. There Avas no proof of any overt act toAvards carrying the intent into execution, and it was argued, in behalf of the prisoner/that the solicitation Avas a mere fruitless, ineffectual temptation—a mere wish or desire.

It Avas held, by all the judges, that the soliciting Avas a misdemeanor, though the indictment contained no charge that the servant stole the goods, nor that any other act Avas done except the soliciting.

Separate opinions were delivered by all the judges.

Lord Kenyon said the solicitation was an act, and it would be a slander upon the law to suppose that such an offense was not indictable.

Gross, J.

said an attempt to commit a misdemeanor was, in itself, a misdemeanor. The gist of the offense is the incitement.

• Lawrence, J.

said: “All offenses of a public nature, that is, all such acts or attempts as tend to the prejudice of the community, are indictable; ” and that the mere soliciting the servant to steal was an attempt or endeavor to commit a crime.

Le Blanc, J.

said that the inciting of another, by whatever means it is attempted, is an act done; and if the act is done with a criminal intent, it is punishable by indictment.

An attempt to commit an offense, or to solicit its commission, is at common law punishable by indictment. 1 Haw. P. C. 55; Whar. Cr. Law, 78 and 872; 1 Puss, on Cr. 49.

While we are not disposed to concur with Wharton, to the full extent, in the language quoted, that every act which might be supposed, according to the stern ethics of some persons, to be injurious to the public morals, to be a misdemeanor, yet'we are of opinion that it is'a misdemeanor to propose to receive a bribe. It must be regarded as an inciting to offer one, and a solicitation to commit an offense. This, at common law, is a misdemeanor. Inciting another to the commission of any indictable offense, though without success, is a misdemeanor. 3 Chitty Cr. Law, 994; 1 Russ, on Cr. 49, Cartwright’s case; Russ, and R. C. C. 107, note b; Rex v. Higgins, 2 East, supra.

As we have seen, the mere offer to bribe, though it may be rejected, is an offense; and the party who makes the offer is amenable to indictment and punishment. The offer amounts to no more than a proposal to give a bribe; it is but a solicitation to a person to take one. The distinction between an offer to bribe and a proposal to receive one, is exceedingly nice. The difference is Avholly ideal. If one man attempt to bribe an officer, and influence him, to his own degradation and to the detriment of the public, and fail in his purpose, is lie more guilty than the officer, avIio is Avilling to make sale of his integrity, debase himself, and who solicits to be purchased, to induce a discharge of his duties? The prejudicial effects upon society are, at least, as great in the one case as in the other; the tendency to corruption is as potent; and AA’hen the officer makes the proposal, he is not only degraded, but the public seiwice suffers thereby.

According to the avcII established principles of the common law, the proposal to receive the bribe Avas an act AA'hich tended to the prejudice of the community; greatly outraged public decency; Avas in the highest degree injurious to the public morals; was a gross breach of official duty, and must therefore be regarded as a misdemeanor, for Avhich the party is liable to indictment.

It is an offense more serious and corrupting in its tendencies than an ineffectual attempt to bribe. In the one case, the officer spurns the temptation, and maintains his purity and integrity; in the other, he manifests a depra\rity and dishonesty existing in himself, Avhich, Avhen developed by the proposal to take a bribe, if done Avith a corrupt intent, should be punished; and it Avould be a slander upon the hrw to snppose that such conduct can not be checked, by appropriate punishment.

In holding that the act charged is indictable, Ave are not drifting into judicial legislation, but are merely applying old and Avell settled principles to a neAv state of facts. ;

Wc are compelled, hoAveA^er, to re Averse, upon the evidence, and shall not therefore further allude to the laAv of the case, or to the errors assigned upon instructions given and refused.

The defendant Avas found guilty, upon the unsupported testimony of one Goggin; and it appears that there were íavo persons of the name of Walsh referred to by Goggin, in his numerous conversations ■ one Avas a member of the board of education, and the other, the present defendant, was a member of the common council of Chicago.

After the date, as fixed by Goggin, of the proposal, on the part of the defendant, to receive a bribe, Goggin said to one Young that he had agreed to give $2000 to Walsh, but that he now demanded $4000. Young replied there are two persons of that name; “which one is it?” Goggin said: “It is Walsh of the board of education; the alderman is a gentleman.”

Goggin complained to one Miller that the defendant had prevented him from selling his lot to the city, and said: “I will get a chance at him some of these days.”

He also said to Donovan: “Walsh is my bitterest enemy, and I will do everything in my power to send him up.”

To Cullerton: “ I have nothing against any alderman but

Jim Walsh; and, by-, I will fix him, if swearing will do it.”

To Gustave Busse: “All I want is Walsh—that d-d scoundrel; I want to go for him. If I can bring him to the penitentiary, I am going to do it.”

To Fred. Busse: “There is only one man I want to go for—Walsh. If I can get on the stand, if I don’t fix him, and get him in the penitentiary!”

Upon cross-examination, Goggin, denied all hostility, and any expressions of hostility, toward the defendant; and he also denied the conversation testified to by Young.

We might make further reference to the evidence, but enough has been cited to show a deep feeling of hostility, on the part of the witness, toward the defendant, and a determination to have him convicted, if false swearing could do it. We must credit the numerous witnesses who contradict the prosecutor. He is therefore impeached, and, to a great-extent, rendered unworthy of belief. He can not have sworn to the truth, if we believe the impeaching witness; or if upon the trial he testified truly, then he made wilfully false statements, to divers persons, before the trial.

Not only is there a reasonable doubt created as to the guilt of the accused, but the mind is forced to the conclusion that the prosecution was the result of personal animosity, and was carried on for the gratification of malicious feeling. There is no safety to the good, or virtuous, or innocent, if convictions can be had upon the testimony presented in this record.

In a case involved in so much doubt, the good character of the accused, abundantly proved, was entitled to great weight. A large number of witnesses testified that his general reputation for honesty and integrity was good.

Under all the circumstances, it is almost incredible that a verdict of guilty was obtained.

The judgment is reversed and the cause remanded.

Judgment reversed.