State v. Emory

An indictment was found and filed against appellant charging him with asking, agreeing to receive, and receiving a bribe from one Rose Sage in the following language:

"That the said IRA EMORY of Boise, Ada County, Idaho, between the dates of August 1, 1932 and January 15, 1933, in the City of Boise, Ada County, Idaho, then and there being an executive officer, namely, a regularly appointed, qualified and acting police officer of the City of Boise, Ada County, Idaho, aforesaid, did then and there wilfully, unlawfully, corruptly and feloniously ask, agree to receive and receive of Rose Sage a bribe, to-wit: $15.00 lawful money of the United States on or about September 1, 1932, upon agreement and understanding that the said Ira Emory's action as such officer would be influenced by such bribe, and upon an agreement and understanding that he, the said Ira Emory, would protect the said Rose Sage in the illegal operation of her hotel business in violation of Section 17-2104 of the Idaho Code Annotated, 1932."

To this indictment appellant entered his plea that he was not guilty. Upon a trial had, appellant was convicted of the offense charged in the indictment and thereupon was sentenced to a term of imprisonment of not less than two years nor more than five years, from which judgment this appeal is prosecuted.

Eight errors are assigned, upon which appellant relies for a reversal of the judgment. The first assignment is predicated upon the action of the court in overruling appellant's objections, made prior to the offer of any proof on behalf of the state, to the introduction of any evidence, it being contended that the court was without jurisdiction in that the indictment did not state a public offense, it being urged that appellant, a police officer of the city of Boise, was not an executive officer within the meaning of I. C. A., sec. 17-502, under which section, it is contended, appellant was indicted. An officer who is neither a judicial nor legislative officer necessarily belongs to the executive department of the Government, and is an executive or administrative officer, whether it be state, county or precinct office, (Sheely v. People, 54 Colo. 136, 129 P. 201; Davis v.State, 70 Tex. Cr. R. 524, 158 S.W. 288.) Executive officers are charged with the detail of carrying the laws into effect and securing their due observance. A police officer is an executive officer within the meaning of I. C. A., sec. 17-502. (People v. Markham, 64 Cal. 157, 30 P. 620, 49 Am. Rep. 700;People v. Powell, 50 Cal. App. 436, 195 P. 456; State v.Gardner, 88 Minn. 130, 92 N.W. 529.) The indictment substantially follows the language of the statute (I. C. A., sec. 17-502), and is a sufficient compliance with the provisions of I. C. A., sec. 19-1317, which provides that words used in a statute to define a public offense need not be strictly pursued; but other words conveying the same meaning may be used. The indictment stated a public offense under I. C. A., sec. 17-502.

It is contended that appellant was indicted under the provisions of I. C. A., sec. 17-502, while he should have been indicted under the provisions of I. C. A., sec. 17-1019. A careful examination of secs. 17-502 and 17-1019,supra, discloses that these two sections are not in conflict with each other in so far as the offense charged against appellant is concerned. Appellant could properly have been indicted under either section, both sections being broad enough to include the offense charged. A conviction under either sec. 17-502 or sec. 17-1019 would be a complete bar to a subsequent prosecution for the offense charged against appellant.

Assignments of error 2 and 3 involve the same questions raised by assignment 1.

Assignment of error numbered 4 is predicated upon the action of the court in denying appellant's request to advise the jury to acquit him. This assignment is not reviewable. (State v.Stevens, 48 Idaho 335, 282 P. 93; State v. McClurg, 50 Idaho 762,300 P. 898.)

In assignment numbered 5 appellant contends that the court erred in giving instruction number 10, insisting that the language used in said instruction was equivalent to a peremptory charge to the jury to find appellant guilty, in that it stated as an ultimate fact that appellant had received other bribes, and that if anything was received from Rose Sage the same constituted a bribe. When instruction number 10 is read and considered in connection with instructions numbered 14 and 16 the point sought to be raised is untenable. The use of the word "bribe" did not invade the province of the jury since the court in other instructions clearly advised the jury that before they could find appellant guilty as charged they must find beyond a reasonable doubt: (1) That on or about September 1, 1932, (2) while he was a police officer of Boise City, Ada County, Idaho, (3) he asked for or received, (4) or asked for and received, (5) from Rose Sage, (6) the sum of $15 lawful money of the United States, (7) under an agreement or understanding that his action as such officer would be influenced by such bribe. Whether he did or did not ask for and receive a bribe from Rose Sage while he was a police officer, under an agreement or understanding that his action as such officer would be influenced thereby, were questions of fact properly submitted to the jury. There was ample evidence to warrant the giving of the instruction and sufficient competent evidence to support the verdict.

It is further contended that that portion of instruction number 10 hereafter quoted was erroneous and was prejudicial to appellant:

"Evidence was offered and by this court admitted, of bribes claimed by the State to have been received by the defendant at times and from persons other than those charged in the indictment.

"This evidence was admitted as showing a general design and system on the part of the defendant to ask for and receive bribes under like or similar circumstances with those alleged in the indictment, and under the theory that if the defendant had or practiced a general system of asking for bribes under such circumstances, it is more probable that he asked for and received the bribe from Rose Sage, as charged in the indictment."

It will be observed that the instruction limited the use of evidence of other alleged bribes to proof of a general design and system on the part of appellant to ask for and receive bribes under like or similar circumstances with those alleged in the indictment. The evidence being so restricted its admission did not constitute prejudicial error.

Evidence of other offenses is admissible when such evidence tends directly to establish the particular crime; likewise evidence of other like crimes is usually competent to prove the specific crime when it tends to establish motive, intent, the absence of mistake or accident, a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others. (State v. O'Neil, 24 Idaho 582, 135 P. 60; State v.Montgomery, 48 Idaho 760, 285 P. 467; State v. Lowe, 50 Idaho 96,294 P. 339; State v. Cochrane, 51 Idaho 521,6 P.2d 489.) Any pertinent fact which throws light upon the subject under judicial consideration, the accused's guilt or innocence of the crime for which he is charged and on trial, is admissible, nor is such probative fact to be excluded merely because it may also prove or tend to prove that the accused has committed another crime. (State v. Montgomery, supra.) It was clearly established that appellant had asked for and received other bribes at times and from persons other than those charged in the indictment, under the same and like circumstances and upon the same understanding or agreement as that had with Rose Sage.

Assignment numbered 6 is directed against the sufficiency of the evidence to justify the verdict and judgment. This assignment contains subassignments of error, and briefly stated, appellant seeks to make the point that there was no sufficient or any conclusive evidence of appellant's guilt of the offense charged, all witnesses testifying to the acts of appellant being accomplices. This contention cannot be sustained. This evidence was not introduced or admitted for the purpose of corroboration. The evidence conclusively shows that appellant asked for and received a bribe from Rose Sage as charged in the indictment, and furthermore discloses that he asked for and received bribes for like protection upon a like agreement or understanding from Lillian Stewart, Jane Stevens and Boni Bermensola, who were in no way connected with the offense charged in the indictment and were not, and could not be, accomplices of appellant as a matter of law or fact. Neither was Rose Sage an accomplice with appellant. (State v. Morrison, 175 Wash. 656,27 P.2d 1065; State v. Wappenstein, 67 Wash. 502, 121 P. 989; Peoplev. Powell, 50 Cal. App. 436, 195 P. 456; People v. Bunkers,2 Cal. App. 197, 84 P. 364, 370.) The bribe giver is not an accomplice with the bribe taker; each is guilty of a distinct and separate offense. It was held in State v. Morrison, supra:

"Had the testimony of the bribe giver been uncorroborated, still it would be sufficient to take the case to the jury."

It is urged that there is no evidence that appellant agreed to receive or received anything of value in return for a promise to protect Rose Sage from any illegal act she might perform. In this connection it is urged that the evidence discloses nothing more, if anything, than that appellant agreed to receive and received money in return for the privilege extended to Rose Sage to keep a girl at her hotel, — not to keep a girl for immoral purposes. The record negatives this contention and clearly establishes the fact that appellant entered into an agreement with Rose Sage, the substance of which was: That he asked, and the evidence shows that he received, from Rose Sage $1 a day, payable on the first and fifteenth of each and every month, and in return Rose Sage was to receive protection from arrest, from plain clothes men, policemen, detectives, and from prosecution under the provisions of I. C. A., sec. 17-2104.

Under assignment numbered 7 appellant claims that the court erred in permitting various witnesses to testify that appellant was a police officer of the city of Boise, it being urged that such fact could be established only by record evidence, there being such a record. The rule would seem to be that the holding of an official office may be proven by parol and is not restricted to proof by record evidence only. (16 C. J. 614, sec. 1205; State v. Haskins,109 Iowa, 656, 80 N.W. 1063, 77 Am. St. 560, 47 L.R.A. 223; People v.Johnson, 65 Cal. App. 680, 228 P. 357; State v. Thornhill,99 Kan. 808, 163 P. 145; 1 Greenleaf on Evidence, sec. 83.)

The disposition of assignment numbered 7 disposes of assignment numbered 8.

The rule is well established in this jurisdiction that errors not properly assigned by appellant will not be considered on appeal. (Farnsworth v. Pepper, 27 Idaho 154, 159, 148 P. 48;Bain v. Olson, 39 Idaho 170, 226 P. 668; Morton Realty Co. v.Big Bend I. M. Co., 37 Idaho 311, 218 P. 433; Merrill v.Fremont Abstract Co., 39 Idaho 238, 239, 227 P. 34;Abercrombie v. Stoddard, 39 Idaho 146, 228 P. 232.)

Having disposed of all errors assigned by appellant and finding no prejudicial error the judgment is affirmed.

Givens, C.J., Morgan, J., and Rice, D.J., sitting in place of Ailshie, J., disqualified, concur.

Petition for rehearing denied.