McClelland v. State , 390 S.W.2d 777 ( 1965 )

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

Appellant insists that we were in error in our holding that an election was not required under the facts and construes certain language in our opinion — when we stated: “It is entirely possible that appellant made a separate and distinct arrangement with each of the five individuals. * * * As we view the charge, when appellant agreed with one or more of the five to accept a bribe, to take something of value to influence his judgment, and he then did so, the offense was complete.”— as holding that separate offenses of bribery were committed when payments were made by the five individuals named in the indictment.

By such language it was not our intention to hold that five separate offenses were committed, as we specifically pointed out that:

“We are not here dealing with extraneous offenses, but we are dealing with one offense involving many transactions.”

The fact that R. M. Duren had been appointed administrator of the Hogan estate three years prior to the presentment of the indictment did not make the evidence of his receipt of $2,500 as an administrator’s fee in the estate and the deposit of one-third«of such amount into the Tierra Grande account proof of an extraneous offense. Such payment and deposit could have been for appointments and fees in other estates, made after the offer to bribe was accepted by appellant.

Appellant also insists that we were in error in concluding that a charge on the law of principals was not required, and insists that the question is not whether he and the five individuals named in the indictment were principals but whether the five were acting together with each other as principals in the crime. It is argued that a charge on principals should have been given as to the five individuals so that the jury’s consideration of the evidence of their acts and conduct could have been limited to the acts of those who the jury found were acting together as principals in the bribery of appellant.

By the very nature of the offense, the five individuals named in the indictment could not be principals in the acceptance of the bribe by appellant which they themselves were offering and paying.

The contention urged by appellant that the court erred in refusing to quash the indictment because of the public examination of state’s witnesses in a court of inquiry prior to the return of the indictment was overruled in McClelland v. State, supra, cited in our original opinion, where it was held that such was not a ground for quashing an indictment in this state.

We have again examined the authorities, and adhere to such ruling.

In State v. Branch, 68 N.C. 186, cited by appellant, the witnesses upon whose testimony the indictment was presented were examined before the grand jury in open court.

No such procedure or facts are presented in the case before us.

The motion for rehearing is overruled.

Opinion approved by the court.