McLemore v. State, 41720

• Decision Date: 12 December 1960
• Docket Number: No. 41720,41720
• Citation: 241 Miss. 664,125 So.2d 86
• Parties: Garland (Bud) McLEMORE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 86

125 So.2d 86

241 Miss. 664

Garland (Bud) McLEMORE v. STATE of Mississippi.

No. 41720.

Supreme Court of Mississippi.

Dec. 12, 1960.

Suggestion of Error Overruled Jan. 23, 1961.

See 126 So.2d 236 E. J. Currie, Sr., E. J. Currie, Jr., Hattiesburg, John R. Countiss, Jackson, for appellant.

Joe T. Patterson, Atty. Gen., by J. R. Griffin, Asst. Atty. Gen., for appellee.

ETHRIDGE, Justice.

Appellant, Garland (Bud) McLemore, was convicted in the Circuit Court of Forrest County, Mississippi, of the crime of offering a bribe to the district attorney, to influence his action in a suit pending in Stone County between the State and Julian B. Campbell. He was sentenced to serve a term of five years in the state penitentiary. The issues are concerned with the sufficiency of the indictment, of the evidence to support the verdict, the use of an intermediary in transmitting the offer of a bribe, and a defense of entrapment. We affirm the judgment of the circuit court.

The statute upon which the conviction is based is Miss.Code 1942, Rec., Sec. 2027. It provides: 'Every person who shall promise, offer, or give to any officer, agent, or trustee, either public or private, while holding such office, agency, or trust, or after he has become a candidate or applicant for the same, or to the wife of such officer, agent, or trustee, any money, goods, chattels, right in action, or other property, real or personal, with intent to influence his vote, opinion, action, or judgment on any question, matter, cause, or proceeding which may be then pending, or may be thereafter subject to vote, opinion, action, or judgment of such officer, agent, or trustee, shall, on conviction, be imprisoned in the penitentiary not more than ten years, or fined not more than one thousand dollars, or both.'

In March 1960, Julian B. Campbell, a resident of Wiggins in Stone County, lost a building as the result of a fire. Arson was suspected, and, after an investigation, on March 17, 1960, affidavits were filed in a justice of the peace court in Stone County making two charges against Campbell of attempted arson and arson. He was arrested, bound over to await action of the grand jury at the July 1960 term of circuit court, and released on bond.

Campbell operated an automobile service station in Wiggins, and was a stockholder in and a member of the Board of Directors of the Mississippi Valley Investment Company, which owned the stock of Consolidated Life Insurance Companies of the South. McLemore was employed by Consolidated to sell stock in that and perhaps other companies. He was acquainted with Campbell, stopping at his filling station from time to time. At Campbell's request, McLemore went to Wiggins. Campbell asked him to help him, stating he was in trouble. Around the middle of April McLemore met M. E. (Red) Ferguson, a registered lobbyist and legislative representative for a labor union. He asked Ferguson whether he knew anybody in Stone County who might help his friend, who was in trouble there. Ferguson introduced McLemore to Roy Strickland, a young man who was a student at the University of Mississippi Law School in Oxford. Strickland was a close personal friend of Boyce Holleman, District Attorney for the Second Judicial District of the State, which includes Stone County and its county seat, Wiggins, where Holleman lives. Holleman had assisted Strickland in going to law school. He used Holleman's law offices and library for his studies whenever he was in Wiggins. From this point there is conflict in the testimony for the State and for the defendant. Since the jury found against defendant, we will consider the evidence offered on behalf of the State to support the charge.

Ferguson introduced defendant to Strickland in the lobby of a Jackson hotel in the last week of April. Defendant and Strickland went to a restaurant in Jackson, and while there McLemore asked Strickland if Holleman and he would accept a proposed offer of $4,000, in return for which Holleman would not introduce the evidence in the arson case between the State and Campbell. McLemore wanted to know if Holleman and Strickland would take $2,000 then, and $2,000 after the grand jury met in July and Campbell was not indicted. McLemore said Ferguson recommended Strickland as being the one to 'buy' Holleman if anyone could. Ferguson denied this. Strickland told McLemore to go ahead and get the money. He then immediately contacted District Attorney Holleman, and they had a conference with the State Fire Marshal and the Commissioner of Insurance. Manifestly they planned to let McLemore go ahead with his proposal, in order to get evidence of an offer to bribe. Both Strickland and Holleman testified that the former immediately transmitted the offer from McLemore to Holleman. McLemore wanted him to deliver the money to the District Attorney. Holleman did not authorize Strickland on his behalf to receive or to solicit for him any money by way of a bribe in the Campbell case, but he lent his full cooperation to the authorities in apprehending McLemore. He testified that Strickland never talked to him about the Campbell matter, but Strickland transmitted to him the offers to bribe made by McLemore.

McLemore was anxious to make the $2,000 initial bribe payment to Holleman through Strickland as soon as possible. After several failures of appellant and Strickland to meet for that purpose, a meeting was arranged at a tourist court in the City of Hattiesburg. Strickland then telephoned the State Fire Marshal and James Finch, the District Attorney of Forrest County, of which Hattiesburg is the county seat, about the matter. On the morning of the day set for his meeting with McLemore, Monday, May 16, 1960, Strickland went to the sheriff's office in Hattiesburg, where the sheriff and his deputies had Strickland remove all of his clothing, and all money and other items in his clothing were taken by the officers. After that, Strickland dressed, and he and the sheriff drove to the tourist court. Strickland and McLemore had coffee in a restaurant next to the tourist court where McLemore was staying. The sheriff was concealed behind the kitchen door, and took two photographs of the men in the restaurant. Defendant told Strickland that, if the indictment was not returned, he would pay Holleman and Strickland an additional $4,000 bonus, after Campbell had collected his insurance money. McLemore wanted him to deliver the money to Holleman. The two parties then went to the entrance of McLemore's hotel room, and McLemore counted out twenty $100 bills, and handed them to Strickland for Holleman. McLemore delivered him the bills one at a time, and Strickland recounted them. Campbell had provided this money for defendant. Strickland was acting with the approval and advice of the district and county attorneys in Forrest County.

Sheriff Robert Waller of Forrest County confirmed Strickland's testimony. He remained out of McLemore's sight, but he watched his and Strickland's movements at the tourist court, at the meeting on May 16. He observed them going to the door of defendant's motel room, and saw defendant pass something to Strickland of a 'greenish tint', one at a time, which appeared to be money. Strickland then left the tourist court in the company of the sheriff and constantly in his presence. On return to the county jail, the sheriff removed from Strickland's possession twenty $100 bills. He also took from him two other items. One was a small booklet in which one page contained various figures which Strickland said defendant wrote in the restaurant before the bribe was passed; and the other was a sheet of the motel's stationery containing defendant's name, address and telephone number in Jackson. McLemore admitted both appeared to be in his handwriting.

The defense, as asserted by McLemore, was that Campbell wanted defendant to get him some legal assistance, and gave him $4,000 in cash for that purpose. McLemore said Strickland told him he was convinced that Campbell was innocent, and that he, Strickland, could get assistance for Campbell for half of what it would cost him to hire a good criminal lawyer. McLemore admitted he paid the $2,000 to Strickland on the occasion in question. He denied he paid it for the purpose of a bribe to the district attorney, and denied he offered Holleman, through Strickland, a bribe. He admitted that he never at any time contacted any lawyers anywhere about the Campbell case. Ferguson told him he knew 'a fellow' who could help Campbell out, so he met Strickland. McLemore denied that Strickland said he knew the district attorney well, and denied he talked with him about the district attorney. He said Strickland told him he would 'get the job done' for half of what it would cost for an experienced criminal lawyer. Strickland was going to advise the man legally. He was 'supposed to assit him, and in what manner he was not to question Strickland.' Strickland was to advise the man what course to take, or recommend some lawyer, but he did not do that. McLemore admitted that he and Strickland discussed a bonus after Campbell collected his insurance money. It was up to Strickland to hire the lawyer, but that was none of McLemore's concern; Strickland would advise Campbell. The money was handled in cash, rather than by check, because that was the way Strickland wanted it. Defendant was not charging any fee for his services. He did not know how Strickland was going to use the money for Campbell's benefit--'that wasn't my problem.'

M. E. Ferguson testified for defendant that he asked Strickland about the matter, and later Strickland said he had checked into it and would be willing to advise Campbell. He said defendant had previously asked him whether he knew anybody in Stone County who could help or assist Campbell, and clear him if possible. McLemore told Ferguson that, if Campbell could get some assistance, 'the favor would be returned, financially or...