Summary
In Ward, the Supreme Court observed that there was no "promise to do something, or an undertaking of some kind which was, or would be, beneficial to the supervisor" targeted by the bribe in that case.
Summary of this case from The People v. MoyerOpinion
Department Two
Hearing In Bank Denied.
Appeal from a judgment of the Superior Court of the County of San Joaquin. Ansel Smith, Judge.
COUNSEL:
An indictment on a statute must contain all the elements named in the statute defining the offense. ( Pen. Code, secs. 165, 167; People v. Schmidt , 63 Cal. 28; People v. Turnbull , 93 Cal. 630; People v. Williams , 35 Cal. 671; People v. Carroll , 80 Cal. 153; People v. Hanselman , 76 Cal. 460; 9 Am. St. Rep. 238; People v. Ross , 103 Cal. 425; People v. McKenna , 81 Cal. 159; People v. Neil , 91 Cal. 468.)
Following the language of section 165 of the Penal Code, in conjunction with the word "bribe," comprehends all the elements of the crime. (People v. Rogers , 81 Cal. 209; People v. Forney , 81 Cal. 118; People v. Keeley , 81 Cal. 210; People v. Rozelle , 78 Cal. 89; People v. Fowler , 88 Cal. 136; People v. Russell , 81 Cal. 616; People v. Mahlman , 82 Cal. 585; People v. Savercool , 81 Cal. 650; People v. Naylor , 82 Cal. 608; People v. Tonielli , 81 Cal. 275; People v. Edson , 68 Cal. 549; People v. Markham , 64 Cal. 157; 49 Am. Rep. 700.)
William M. Gibson, and J. G. Swinnerton, for Appellant.
W. F. Fitzgerald, Attorney General, and Charles H. Jackson, Deputy Attorney General, for Respondent.
W. B. Nutter, District Attorney, and Marion De Vries, Assistant District Attorney, for Respondent, upon Petition for Rehearing.
Section 7 of subdivision 6 of the Penal Code prescribes only a rule of evidence. (People v. Donaldson , 70 Cal. 116.) Where the offense is prohibited in general terms in one section of the statute, and another distinct section defines the offense more particularly, it is sufficient to follow the general description in the language of the statute. (State v. Casey , 45 Me. 436; Watson v. State, 39 Ohio St. 126; People v. Shaber , 32 Cal. 36; People v. Fuqua , 58 Cal. 245; People v. Savercool , 81 Cal. 650; People v. Congleton , 44 Cal. 92-94; People v. King , 27 Cal. 511; 87 Am. Dec. 95; People v. Cronin , 34 Cal. 201; United States v. Simmons , 96 U.S. 364.)
JUDGES: McFarland, J. Temple, J., and Henshaw, J., concurred.
OPINION
McFARLAND, Judge
The appellant was convicted of the "crime of giving a bribe," and appeals from the judgment and from an order denying a motion for a new trial.
The appellant demurred to the indictment upon the grounds that it does not substantially comply with the requirements of sections 950 and 952 of the Penal Code. His demurrer was overruled, and we think that the court erred in overruling it.
The indictment charges that the appellant did willfully, feloniously, etc., "give a bribe" to a certain member of the board of supervisors, with intent to corruptly influence him in a certain matter; but it does not contain any averment of any act of appellant which brings his alleged conduct within the legal meaning of bribery. The indictment would be the same if it had [42 P. 895] merely charged, generally, that defendant "bribed" a certain person to do a certain thing. This would be the averment of a legal conclusion only, and as bad as a mere general averment that a defendant "murdered" somebody or "stole" something.
Section 950 of the Penal Code provides that the indictment shall contain "a statement of the acts constituting the offense in ordinary and concise language"; and section 952 provides that "it must be direct and certain as it regards,. .. . 3. The particular circumstances of the offense charged when they are necessary to constitute a complete offense."
Subdivision 6 of section 7 of the Penal Code provides as follows: "The word 'bribe' signifies anything of value or advantage, present or prospective, or any promise or undertaking to give any, asked, given, or accepted, with a corrupt intent to influence, unlawfully, the person to whom it is given, in his action, vote, or opinion, in any public or official capacity"; and section 165 provides that "every person who gives or offers a bribe" to one of several officers named, with intent, etc., is punishable in a certain manner. And counsel for respondents contend that the indictment is good, because, as they say, "it follows the language of the statute."
This court has said several times, in general terms, that an indictment is sufficient if it substantially follows the language of the statute. This is true generally, but not universally. It is not true of a case where "the particular circumstances. .. . are necessary to constitute a complete offense." The rule especially applies to purely statutory offenses. But what does the rule mean? It means simply this: that when the statute defines or describes the acts which shall constitute a particular offense, it is sufficient in an indictment to describe those acts in the language employed in the statute, applying them, of course, concretely to the person charged. One of the earliest cases on the subject is People v. Parsons , 6 Cal. 487. In that case the indictment was for perjury, and left out the word "feloniously"; and it was held good, because in the statutory definition of the crime of perjury the word "feloniously" was not used. In its opinion the court said: "The indictment in this cause charged the offense in the words of the statute defining it ;. .. . time, place, and circumstance are stated with certainty, and every information is given to the defendant which is necessary to enable him to answer the charge ." There the words of the statute defining the offense were used in the indictment. People v. Shaber , 32 Cal. 36, is another early case. There the court, in sustaining the indictment, said: "The indictment charges the offense in the very terms used in defining it in the fifty-eighth section of the Crimes Act." And even in that case Sanderson, J., dissented, saying that it was a familiar principle in all pleadings that "the facts are to be stated to the exclusion of conclusions of
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law to be drawn therefrom." And in the cases following these earlier ones it will be found that the rule declared on the subject is simply that an indictment is good if it alleges all the facts or acts necessary to constitute the particular offense charged in the language used by the legislature in defining it. For instance, the meaning of the rule is fully stated by Paterson, J., in People v. Fowler , 88 Cal. 138, as follows: "The information follows the language of the statute, and is sufficient. It alleges all the acts and facts which the legislature has said shall constitute the offense ."
The only two cases cited where bribery was involved are People v. Edson , 68 Cal. 549, and People v. Markham , 64 Cal. 157; 49 Am. Rep. 700. In the Edson case the language of the indictment is not given, but the opinion refers to the Markham case as authority; and in the Markham case the indictment charged that the defendant, at a certain time and place, being a police officer, etc., did "agree to receive a bribe, to wit, fifteen standard dollars, lawful coin of the United States of America ."
Therefore, assuming the general rule, as above explained, to be that it is sufficient to allege an offense in the language of the statute, the offense charged in the case at bar is not alleged in the language of the statute in the indictment under review. It does not allege "the acts and facts which the legislature has said shall constitute the offense." The material acts or facts constituting the legislative definition of bribery are the giving to a public officer something "of value or advantage, present or prospective," or giving "any promise" or entering into any "undertaking" to give something of value or advantage. There is no averment that appellant gave the supervisor anything of value, or of advantage, or that he gave anything at all; or that the thing was of present or prospective advantage; or that it was a promise to do something, or an undertaking of some kind which was, or would be, beneficial to the supervisor. As said by counsel for appellant: "The defendant is not informed whether the people will prove that he gave money, a promise of employment, a promise of political influence, a contract, instruction, entertainment, or any other of the many things which might constitute a bribe." It is true that the rules of the common law, with respect to criminal pleading, have been greatly relaxed in this state by legislation and judicial decision, and many of the formalities and particularities formerly deemed necessary are not now required; but the fundamental rule that an indictment must state with reasonable certainty what the defendant is charged with, so as "to enable him to answer the charge," has not been abrogated either by legislature or court. (People v. Lee , 107 Cal. 477.) An indictment for bribery should aver that the defendant gave something of value or advantage, present or prospective, or some [42 P. 896] promise or undertaking, or did some act, described by the statute as constituting the offense. A mere use of the language of section 165, which prescribes the punishment, is not charging the offense "in the words of the statute defining it."
The judgment and order appealed from are reversed and the cause is remanded, with instructions to sustain the demurrer to the indictment.