Fanelli v. Com.

• Decision Date: 19 January 1968
• Citation: 423 S.W.2d 255
• Parties: R. J. FANELLI, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 255

423 S.W.2d 255

R. J. FANELLI, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Jan. 19, 1968.

Daniel B. Boone, Arthur R. Samuel, Louisville, for appellant.

Robert Matthews, Atty. Gen., Charles Runyan, Asst. Atty. Gen., for appellee.

PALMORE, Judge.

R. J. Fanelli appeals from an order of the Jefferson Circuit Court overruling his CR 60.02 motion to vacate a judgment or judgments sentencing him to one year in prison on each of ten counts for violating KRS 61.190 (receiving profit on public funds) and fining him $900 on each of ten counts for violating KRS 432.350(2) (taking bribe). See Fanelli et al. v. Commonwealth, Ky., 418 S.W.2d 740 (1967).

The convictions of Fanelli and two codefendants were based on evidence that E. A. Sanson, a contractor, had paid them various sums of money as bribes in return for their having awarded public contracts. Sanson, indicted under KRS 432.350(1) for giving the bribes, has not yet been tried. The ground on which Fanelli now claims he is entitled to have his conviction vacated is that the Commonwealth has agreed to reduce the charges against Sanson to the common law misdemeanor of attempted bribery. Though it is not satisfactorily established that this is true, we shall assume it so for purposes of our decision.

Fanelli argues that if Sanson is guilty of no more than attempting to give the bribes he, Fanelli, cannot be guilty of having accepted them, that he cannot be guilty under KRS 432.350(2) without Sanson's being guilty under KRS 432.350(1). Reasoning from that proposition, he contends he will be denied due process and equal protection of the laws, as guaranteed by the 14th Amendment of the U.S. Constitution, if his convictions of the statutory felonies are permitted to stand while the alleged giver of the bribes is allowed to plead guilty and accept punishment for the lesser offenses.

Obviously a bribe cannot be accepted by one person without having been given by another. It does not follow, however that the receiver cannot be convicted unless the giver also is convicted, and no authority to such effect has been cited for our consideration. Fanelli's conviction by one jury of having taken bribes from Sanson does not make it inevitable that another jury would convict Sanson of having given the bribes, nor can it reasonably be construed as a restriction upon the Commonwealth's Attorney's discretionary powers in conducting the proceedings pending against Sanson. Suppose, for example, the prosecution should conclude that for some reason or another it cannot prove its case against Sanson. So far as the law is concerned, Sanson is innocent until proved guilty beyond a reasonable doubt and so found by the unanimous verdict of a jury. The office of Commonwealth's Attorney is a position of great trust and responsibility, because of its broad discretionary powers. One of these is the power of deciding what to recommend to the court in the way of amending or dismissing pending charges, or in the fixing of punishment in the event of a guilty plea.

In often happens that when one of two persons indicted for the same offense pleads guilty and the other stands trial they receive different sentences. The same is true...