Opinion
37575.
DECIDED MARCH 9, 1959.
Bribery. Bibb Superior Court. Before Judge Long. December 3, 1958.
D. Lee Churchwell, for plaintiff in error.
Wm. M. West, Solicitor-General, Hal Bell, Assistant Solicitor-General, contra.
1. ( a) The indictment for bribery in this case, being substantially in the language of Code (Ann.) § 26-4102, was not subject to demurrer on the ground that it was duplicitous, or that it set out no offense against the laws of this State.
( b) Nor was the indictment subject to demurrer because showing on its face that the defendant had been entrapped into committing the crime of bribery. An entrapment does not exist merely because an officer of the law furnishes another an opportunity to commit an offense which he is ready and willing to commit. Usry v. State, 90 Ga. App. 644 ( 83 S.E.2d 843).
2. The testimony of the arresting officers was sufficient to authorize a finding that the defendant had given money to each of them as a bribe for the purpose of inducing them not to arrest her for an offense of possessing illegal liquor committed in their presence. The motion in arrest of judgment and the general grounds of the motion for new trial are without merit.
3. ( a) Testimony of an arresting officer to the effect that he was offered money to refrain from arresting the defendant, and that he accepted such money to procure evidence against her and then arrested her for the offense of bribery, is not subject to be stricken on motion made by defense counsel for the stated reason that no criminal intent was shown on the part of such officer.
( b) In any event, the testimony of an accomplice may be corroborated by the testimony of another accomplice. Crowe v. State, 83 Ga. App. 325 ( 63 S.E.2d 682).
DECIDED MARCH 9, 1959.
Annie W. Slaughter was indicted in the Superior Court of Bibb County for the offense of bribery, the indictment charging that she did "give and offer to give to J. W. Elder, a Bibb County Deputy Sheriff, T. A. Smith and A. F. Jones, Bibb County policemen, and officers of this State, $15.00 . . . to influence the behavior of the said J. W. Elder, a Bibb County Deputy Sheriff, T. A. Smith, and A. F. Jones, Bibb County policemen and officers of this State, in that the said accused did pay to the said officers the aforesaid sum of money for the purpose of preventing the said officers from arresting and prosecuting the said accused for violation of the laws of the State of Georgia with reference to the possession and handling of non-tax-paid whisky, rum and gin within the city of Macon, Georgia." The defendant demurred generally to the indictment on the ground that it set out no offense, and specially on the ground of duplicity, which demurrers were overruled. The case proceeded to trial, and the evidence on behalf of the State showed substantially the following: the three officers named in the indictment came to the defendant's house armed with a search warrant and demanded entry. The defendant attempted to lock the doors from the inside, but two of the officers entered from the front; one of them opened the back door to the third officer, and the other followed the defendant, who ran through the living room and kitchen to the bathroom where she proceeded to dump a pail of liquid into a bathtub of soapy water; that some of the liquid spilled on the floor, was mopped up, and was, in the opinion of the officers, moonshine whisky; that the bathtub water also smelled of whisky. The three officers also testified in substance that the defendant asked Jones how much it would take to turn her loose; that he called the other two men in; that she asked them all and they did not answer, that she then took a bill fold and handed Jones a $5.00 bill and each of the others five $1.00 bills, and told them if they came back the following Saturday they would each get $5.00 more. The officers took the bills of currency totaling the sum of $15, which were introduced in evidence, and the officers immediately arrested the defendant for the offense of bribery as well as for the offense of possessing illegal liquor.
The trial of the bribery case resulted in a verdict of guilty. The defendant filed a motion for a new trial which was amended by the addition of 7 special grounds, and also a motion in arrest of judgment. The denial of these motions and the overruling of the demurrers to the indictment are here assigned as error.
1, 2. The main contention of the plaintiff in error, as raised by the demurrers to the indictment, the motion for new trial, and also the motion in arrest of judgment is, in substance, that the substantive offense of bribery, a felony, cannot be consummated singularly but must be the result of at least two participating offenders, the giver and the receiver of the bribe; that in such event both giver and receiver are accomplices and the bribe-giver cannot be convicted only upon the uncorroborated testimony of such accomplices; that a charge of offering to bribe is not a charge of committing the offense of bribery but only a charge of an attempt to commit such offense; that if the officers, as they testified, did not accept the money for the purpose of entering into an illegal compact with the defendant to conceal her crime, but rather accepted the money for the purpose of obtaining evidence against her without themselves acquiescing therein, there was no bribe but only an attempt, which, it is contended, should under Code § 27-2507 be punished as a misdemeanor.
Code § 26-4101 provides: "Bribery is the giving or receiving any undue reward to influence the behavior of the person receiving such reward, in the discharge of his duty in any office of government or of justice." Code (Ann.) § 26-4102 provides in part: "If any person shall, directly or indirectly, give or offer to give any money, goods, or other bribe, present, or reward . . . in order to obtain or influence the opinion, judgment, decree, or behavior of any . . . officer of this State, referee, or arbitrator, in any matter or cause pending, or which shall pend before him, such person, and the officer, referee, or arbitrator, who shall accept or receive such bribe, shall be guilty of a felony." Every indictment shall be deemed sufficiently technical and correct which states the offense substantially in the language of the Code. Code § 27-701. "Under the statute creating the offense, all of the different ways therein stated, by which one might commit the offense, can be charged in one and the same count." Slicer v. State, 172 Ga. 445 (1a) ( 157 S.E. 664). This indictment appears to have been drawn under Code (Ann.) § 26-4102. It sufficiently alleges, and the evidence authorizes a finding, that the offer was made by the defendant to officers of the State within the contemplation of this section (See Payne v. State, 153 Ga. 882 (3), 113 S.E. 446) in connection with a pending matter, a contemplated arrest for the misdemeanor of possessing non-tax-paid liquor, allegedly committed in their presence. Under neither Code section is both giving and receiving of the bribe made a necessary element of the offense; the giving renders the offerer guilty, and the receiving, with criminal intent, renders the receiver guilty. The evidence here sufficiently shows a completed crime of bribery on the part of the defendant regardless of whether the money was accepted by the officers as a bribe or was accepted merely for the purpose of obtaining evidence against the defendant. Taylor v. State, 44 Ga. App. 387 ( 161 S.E. 793) supports this position, for it was there held that the receiver of a bribe might be convicted although the person who paid the money might have been in fact ignorant that the receiver, in order to do what was requested of him, would have to act in such official capacity as to commit the crime of bribery under the statute. In Ingram v. State, 97 Ga. App. 468, 471 ( 103 S.E.2d 666) it was held: "The essential elements of the offense are accordingly the offer or gift, the purpose to corruptly influence, and the official status of the offeree." Each of these elements being supported by proof, there was no error in overruling the demurrers, the motion in arrest of judgment, or the motion for new trial on the general grounds.
3. The first 3 special grounds of the amended motion for new trial assign error on the refusal of the trial court to strike out the testimony of each of the arresting officers on the ground the testimony of each officer was to the effect that he was not bribed, for which reason the testimony is irrelevant and prejudicial, or at least shows only an attempt to bribe on the part of the defendant. Special ground 4 contends that the testimony, if taken as the testimony of accomplices, is insufficient because uncorroborated. Special ground 5 assigns error on the failure to charge a written request to the effect that an attempt to bribe is a misdemeanor under Code § 27-2507 (5). Special grounds 6 and 7 assign error on the charge and on the failure to direct a verdict of acquittal because, for the reasons contended in the first 4 special grounds, there was no legal evidence to sustain a conviction. All of these grounds are without merit. As we have already stated, it was not necessary for the police officers to be accomplices of the defendant in the sense that they also must have acted with criminal intent in accepting the money; nevertheless, even if this had been true, the testimony of an accomplice may be corroborated by the testimony of another accomplice. Nor is it true that the fact that the officers testified that they received the money, not as a bribe but for the purpose of obtaining evidence, automatically reduces the offense from a felony to a misdemeanor. An attempt to commit a crime punishable by imprisonment and labor in the penitentiary for not less than one year is a misdemeanor under Code § 27-2507 (5) only as therein stated "in cases where no punishment is otherwise provided for the punishment of such attempt." The language in Taylor v. State, 44 Ga. App. 387, supra, which is cited by the plaintiff in error, to the effect that an attempt to commit the crime of bribery is a misdemeanor, was written at a time when the punishment for violation of both Code §§ 26-4101 and 26-4102 was misdemeanor punishment. Bribery was, prior to 1865, a felony. By Ga. L. 1865-1866, p. 233, the penalty was reduced to misdemeanor punishment, and by the Act of 1949 (Ga. L. 1949, p. 274) the offense of either giving or offering to give a bribe was again made a felony. Since this act assesses the same punishment for "offering to give" as for "giving", it is entirely immaterial whether the offer is accepted so as to render the receiver also guilty of felonious misconduct. The special grounds of the amended motion for new trial are without merit.
No error appears as to any of the judgments of the trial court to which exception is taken.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.