Penn v. Commonwealth

LEIBSON, Justice,

dissenting.

Respectfully, I dissent. The potential mischief inherent in the present decision is greater than the evil it seeks to suppress.

The appellant offered his neighbor a substantial amount of money “not to tell anybody about” his marijuana patch. The neighbor was not then a witness nor a prospective witness in any “official proceeding” under way or contemplated at the time. KRS 524.020 limits the offense to offering a bribe to any “witness” or “person” the offender “believes may be called as a witness in any official proceeding with intent to ... influence the testimony of that person.”

Here the purpose of the offer was to persuade the neighbor not to inform on the appellant and had nothing to do with his testifying should the crime be otherwise discovered. As it turned out, the neighbor told the police and appellant was prosecuted.

In my view, an existing “official proceeding” of some kind is a threshold requirement to the offense of bribery. There are good reasons for such a view. However reprehensible it may be, it is not unlawful to refuse to inform on a criminal offense. It is reasonable to assume that the legislature intended to limit the offense of bribery to bribing a person to commit an unlawful act. It is also reasonable to assume that the legislature intended as a minimum requirement that the person offered the bribe had a legal duty to report what he saw.

It is a fundamental rule of construction of penal statutes that the language of the statute shall be strictly construed and the defendant acquitted where the language is ambiguous. Haymon v. Commonwealth, Ky., 657 S.W.2d 239 (1983). Penal statutes are not to be extended by construction, but must be limited to cases clearly within the language used. Commonwealth v. Malone, 141 Ky. 441, 132 S.W. 1033 (1911). “Moreover, doubts in the construction of a penal statute will be resolved in favor of lenity and against a construction that would produce extremely harsh or incongruous results.” Commonwealth v. Colonial Stores, Inc., Ky., 350 S.W.2d 465 (1961); Boulder v. Commonwealth, Ky., 610 S.W.2d 615, 618 (1980). Applying these rules to the present case, the statute is limited at most to a witness or prospective witness in an ongoing “official proceeding.” it does not include offering a bribe to a potential informant.

KRS 524.020 keys on an “official proceeding” but makes no distinction between civil and criminal proceedings or between judicial and administrative proceedings. An offer to confer a benefit to influence a witness is a bribe under the majority’s decision if the “official proceeding” is merely civil and/or administrative in nature. Thus broad in scope, surely the offense should be limited to an “official proceeding” in progress. Otherwise, a number of situations come to mind where a person could be convicted of offering a bribe for offering to confer a benefit for keeping a secret in a relatively innocuous conversation regarding a matter wholly civil in nature with no potential criminal overtones: business secrets that could wind up in a contract action, corporate secrets that could wind up in a shareholder’s action, or even a personnel matter that could wind up before an administrative agency.

The only Kentucky case dealing with the subject matter is Commonwealth v. Bailey, Ky., 82 S.W. 299 (1904), holding that the statute on bribery then in existence should be construed to require that the person bribed must in fact be a witness and that to be a witness there must be an ongoing proceeding. Thus we are faced not only with a statute that is ambiguous, but with the only Kentucky case on the subject pointing the other way.

The most the Commonwealth had to argue in this case was that what the appellant did ought to be illegal. In my view, this is not enough to sustain a criminal conviction.