People v. Wettengel

DECEMBER 16, 1934, a grand jury indicted Earl Wettengel, district attorney of the Second Judicial District, James P. Blackwell and Lafayette B. Utter for, as the indictment is captioned, "Conspiracy to Commit Bribery." Utter has not been apprehended nor has he appeared. Wettengel and Blackwell filed like motions to quash which, February 5, 1935, were sustained. The principal ground urged by the motions was that no facts sufficient to constitute the crime of conspiracy to commit bribery are shown by the indictment. It reads:

"The Grand Jurors, chosen, selected and sworn, in and for the City and County of Denver, State of Colorado, in the name and by the authority of the People of the State of Colorado, upon their oaths present:

"That on, to wit, the first day of January, A. D. 1932, and thence continuously to the seventeenth day of September, A. D. 1934, at, to wit, the City and County of Denver, State of Colorado, Lafayette B. Utter, James P. Blackwell, Earl Wettengel, who was then and there and for more than two years immediately prior thereto had been, the duly elected, qualified and acting district attorney in and for the second judicial district of the State of Colorado, which judicial district is comprised of the said City and County of Denver, and some other persons to the said Grand Jurors unknown, did unlawfully and feloniously agree, conspire and co-operate with each other to do, and to aid each other in the doing of, an unlawful and felonious act, to wit, the crime of bribery; which crime of bribery was thereafter to be committed by said defendants and each of them in the City and County of Denver, State of Colorado, by the said defendants Lafayette B. Utter and James P. Blackwell and each of them, and the said other persons unknown to the aforesaid Grand Jurors, directly and indirectly and unlawfully, giving sums of money and other bribes, presents and rewards and other things of value to the said Earl Wettengel, who would receive and accept the same, with intent to unlawfully induce and influence said Earl Wettengel to execute the powers in him vested, and to perform the duties of him required, with partiality and favor, and otherwise than is required by law, in this, to wit, the said sums of money and other bribes, presents and rewards and other things of value were to be paid and delivered by the said Lafayette B. Utter and James P. Blackwell and each of them to the said Earl Wettengel, and were to be received and accepted by him, to induce and influence him, the said Earl Wettengel, to permit the said Lafayette B. Utter and James P. Blackwell and each of them to unlawfully own, install, keep, exhibit, maintain, conduct, use and operate gambling rooms, houses, devices, slot machines and other gambling games, instruments, devices, apparatus and paraphernalia to win and gain money and other property by gambling in the said City and County of Denver, State of Colorado, without molestation, interference, seizure, destruction or prosecution by him, the said Earl Wettengel, or by his agents, deputies or employes, or by other law enforcement agencies or officers of the City and County of Denver; contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the People of the State of Colorado."

[1] In our view it is plain that the indictment attempts to do what its caption would indicate its drawers had in mind; that is, to charge that Blackwell, Utter and Wettengel conspired with each other that thereafter Blackwell and Utter should give, and Wettengel should receive from them, things of value, to the end that Wettengel should permit Blackwell and Utter to maintain gambling devices without molestation from his office. The question is, Do these allegations, if true, constitute the crime of conspiracy to commit bribery? The answer, urged upon us by counsel for the district attorney, and which we conclude is a correct statement of the law, is that there is not, in the law, any such crime as conspiracy to commit bribery where the conspiracy is charged to have included both the prospective giver and the prospective receiver.

[2] The bribery statute, Compiled Laws 1921, section 6781, requires that to constitute the crime of bribery the act of two persons is essential, that of him who gives and of him who receives; their minds must concur. Newmanv. People, 23 Colo. 300, 47 P. 278. The statute, section 1781, R. S. U.S., under consideration in United States v.Dietrich, 126 Fed. 664, was to the same import. There it was charged that Dietrich, a United States senator, had conspired with a constituent that the senator should receive and the constituent should pay a sum of money for the "use of the influence incident to his official station." There, as here, the defendant argued that under such circumstances conspiracy could not be charged. We shall not endeavor to elaborate upon the doctrine; it is well set forth in the Dietrich case at page 666 in these words: "As the transaction is stated in the indictment, it was Dietrich who agreed to receive the bribe, not Dietrich and Fisher, and it was Fisher who agreed to give the bribe, not Fisher and Dietrich. The charge is not that two or more persons agreed among themselves to corruptly obtain the aid of another, a member of Congress, in securing the appointment of some aspirant to a federal office, nor is it that two or more members of Congress agreed among themselves to obtain from another person a reward or compensation for their services or aid in securing such an appointment. Such an agreement would constitute a conspiracy to commit an offense against the United States, and, if followed by the doing of any act by one of the conspirators to effect its object, would be punishable under section 5440. * * * The agreement or transaction stated in this indictment was immediately and only between two persons, one charged with the intended taking and the other with the intended giving of the same bribe. Concert and plurality of agents in such an agreement or transaction are, in a sense, indispensable elements of the substantive offenses, defined in section 1781, of agreeing to receive a bribe and of agreeing to give one. A person cannot agree with himself, receive from himself, or give to himself. The concurrent and several acts of two persons are necessary to the act of agreeing, receiving, or giving. In this respect, agreeing to receive a bribe from another and agreeing to give one are unlike soliciting or offering a bribe, because the solicitation or offer may be the act of a single person and may occur without any concurrent act of another. The rule stated by Wharton (2 Cr. L. § 1339) is applicable here:

"``When to the idea of an offense plurality of agents is logically necessary, conspiracy, which assumes the voluntary accession of a person to a crime of such a character that it is aggravated by a plurality of agents, cannot be maintained. As crimes to which concert is necessary (i. e., which cannot take place without concert), we may mention dueling, bigamy, incest, and adultery, to the last of which the limitation here expressed has been specifically applied by authoritative American courts.'

"* * * The fact that section 1781 makes the act of agreeing to receive, and also that of agreeing to give, a bribe, under the circumstances and for the purpose described in this indictment, a substantive offense, even though the bribe be not actually received or given, brings this case fully within the rule so stated."

See, also, Chadwick v. United States, 141 Fed. 225;United States v. New York Co., 146 Fed. 298; Gebardi v.United States, 287 U.S. 112, 53 Sup. Ct. 35, 77 L. Ed. 206;United States v. Sager, 49 F.2d 725; People v. Keyes, 284 Pac. (Cal.) 1105. In the Gebardi case the man transporting and the woman transported were charged with conspiracy to violate the Mann Act. The court said (p. 121): "Of this class of cases we say that the substantive offense contemplated by the statute itself involves the same combination or community of purpose of two persons only which is prosecuted here as conspiracy. If this were the only case covered by the act, it would be within those decisions which hold, consistently with the theory upon which conspiracies are punished, that where it is impossible under any circumstances to commit the substantive offense without cooperative action, the preliminary agreement between the same parties to commit the offense is not an indictable conspiracy either at common law, * * * or under the federal statute."

And so here. The preliminary agreement said to have existed between Wettengel and Blackwell and Utter is not an indictable conspiracy, for the substantive offense, bribery, itself required the cooperative action of those charged below to have been conspirators.

We think the Colorado cases which impel Mr. Chief Justice Butler to dissent are distinguishable.

Let the judgment be affirmed.

MR. JUSTICE CAMPBELL and MR. JUSTICE HOLLAND concur.

MR. JUSTICE BURKE concurs in the conclusion.

MR. CHIEF JUSTICE BUTLER, MR. JUSTICE BOUCK and MR. JUSTICE YOUNG dissent.