Duvall v. State
| Decision Date | 28 May 1929 |
| Docket Number | 13,677 |
| Citation | 166 N.E. 603,92 Ind.App. 134 |
| Parties | DUVALL v. STATE OF INDIANA |
| Court | Indiana Appellate Court |
Rehearing denied October 2, 1929. Transfer denied January 29 1931.
From Marion Criminal Court (61,776); Cassius C. Shirley, Special Judge.
John L Duvall was convicted of violation of the Corrupt Practice Act, and he appealed.
Affirmed in part and reversed in part.
Martin M. Hugg, Eph Inman, Harvey A. Grabill, Ryan, Ruckelshaus, Ruckelshaus & Ryan and William V. Rooker, for appellant.
Arthur L. Gilliom and James M. Ogden, Attorney-Generals, and Harry L. Gause, for the State.
OPINION
An affidavit was filed against appellant charging that, when he was a candidate for mayor of the city of Indianapolis, he unlawfully promised William H. Armitage, that if he, appellant, were elected mayor, Armitage might name two members of the board of public works of said city and the city civil engineer, said offer being of advantage, aid and value to Armitage, and being made for the purpose of inducing and procuring Armitage to vote, aid and work for the election of appellant in the election; that, as a further consideration for said promise so made by appellant, Armitage agreed to, and did pay appellant the sum of $ 10,000. A motion to quash was overruled, after which the cause was tried before a jury and resulted in a conviction, appellant's punishment being fixed at a fine of $ 1,000 and imprisonment in the county jail for 30 days. The jury also found that he should be ineligible to any public office or public employment for a period of four years from November 2, 1925.
The errors assigned are the overruling of a motion to quash the affidavit, and the overruling of the motion for a new trial.
Section 7671 Burns 1926, § 11, Acts 1911 p. 288, inter alia, provides:
In support of the first assignment, appellant insists that the promise alleged in the affidavit is not unlawful and does not constitute a crime; that the "gift, advantage, preferment, entertainment, aid, emoluments, or any valuable thing whatever," must have a property value measured in money; and that the alleged promise is not money nor a "gift, advantage, preferment, entertainment, aid or emolument," within the meaning of the statute. In support of this contention, appellant cites and relies on State, ex rel., v. Patterson (1914), 67 Fla. 499, 65 So. 659; Van Meter v. Burns (1917), 176 Ky. 153, 195 S.W. 470; Graham v. Alliston (1918), 180 Ky. 687, 203 S.W. 563; Hardin v. Horn (1919), 184 Ky. 548, 212 S.W. 573.
State, ex rel., v. Patterson, supra, was a proceeding to compel the county commissioners to place the relator's name on the official ballot as a candidate for the office of member of the board of public instruction at the primary election to be held June 2, 1914. The petition alleged that on May 13, 1914, the relator filed with the clerk his statement as to his qualifications to become a candidate; that the commissioners refused to print his name on the ballot because he had not filed a sworn statement of his expenses as a candidate 25 days before the date of the primary; that the relator had not, prior to May 12, 1914, announced to any person or to the public that he was a candidate, and that, as a fact, he was not, prior to said day, a candidate, and not being a candidate 25 days before the primary, he was not required to file such statement on May 8, that being the day on which all who were then candidates were required to file such statement. It was held that since the relator did not become a candidate prior to May 12, he was not required to file the statement 25 days before the date of the primary; that he was not required to file such statement at a time when he was not, in fact, a candidate. No other question was presented or decided, and we find nothing in the opinion of the court bearing on any question involved in the instant case. The Corrupt Practice Act of Kentucky provided that it shall be unlawful for any person who is a candidate "to expend, pay, promise, loan or become pecuniarily liable in any way for money or other thing of value." The Supreme Court of that state, in the three cases last cited, correctly held the words "other thing of value" as used in the statute, did not include a promise made by a candidate to appoint a particular person as a deputy. All the things specifically mentioned in the statute related to money, and it was clear that, under the ejusdem generis maxim of construction, "other thing of value," as there used, must refer to things having a money value.
The statute of this state is more comprehensive than the Kentucky statute. Our statute covers a gift, offer or promise of any "money, gift, advantage, preferment, entertainment, aid, emoluments, or any valuable thing whatever."
The Supreme Court of Arkansas, in discussing a promise of a candidate for mayor, if elected, to vote for a certain person for the office of city attorney, said: Wright v. State (1918), 133 Ark. 76, 83, 202 S.W. 236.
Advantage is defined as "any state, condition, circumstance, opportunity, or means, specially favorable to success, prosperity, interest, reputation, or any desired end." Century Dictionary. By the same authority, preferment, is defined as, "the act of preferring or esteeming more highly, or the state of being preferred." It seems quite clear to us that a promise by a candidate for mayor to allow another person to name two of the three members of the board of public works and to name the city civil engineer in a city of the size of Indianapolis, and a promise by such candidate, that he will, if elected to such office, appoint the persons so selected by the one to whom such promise is made, is to give the promisee an advantage and preferment within the Corrupt Practice Act. The promisee, in the instant case, certainly thought the promise to allow him to name two members of the board of public works an advantage and preferment given to him that no other individual could expect. To him it was evidently a thing of value, otherwise he would not have given $ 10,000 to appellant as a part of the consideration for the latter's promise. The purpose of the statute was to prevent the influence of voters, not by the use of money alone, but by any of the inducements enumerated in the statute. Fox v. State (1917), 186 Ind. 299, 116 N.E. 295. We cannot agree with appellant in his contention that the agreement which he is alleged to have made was not a violation of the statute. The alleged transaction is no less than a sale of the privilege of naming important city officers, the consideration being the support of Armitage and the payment by the latter of $ 10,000, in money. The court did not err in overruling the motion to quash.
Appellant complains of the action of the court in overruling his objections to certain questions asked each of 12 witnesses eliciting promises made by him to each of such witnesses, of political preferment, similar in nature to the promise made Armitage, all of the promises being made for the purpose of securing votes and political support. One of these witnesses was William Freeman, who was a member of the board of public works of the city of Indianapolis during the time appellant was a candidate for mayor, and one of the two men whom Armitage had indicated he desired appellant, when elected, to appoint as members of that board, and whom appellant had promised Armitage he would appoint. Freeman had been active politically and was county chairman of his party at the time appellant was elected county treasurer. He testified that he had a conversation with Armitage, after which he called on appellant, at his home, on June 16 or 17, 1925; that he told appellant about his conversation with Armitage and that he had been told of certain things appellant desired of the witness and which appellant wanted to talk over with the witness; that appellant told the witness he had certain arrangements with Armitage and said: ; that appellant told him who would be the other Republican member and who would be the city engineer; that appellant said he wanted the witness to understand that the arrangements made with Armitage would be kept; that he would expect the witness to...
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