Mendez v. Com., s. 781203

• Decision Date: 08 June 1979
• Docket Number: 781204,Nos. 781203,s. 781203
• Citation: 220 Va. 97,255 S.E.2d 533
• Parties: Juan Barretto MENDEZ, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 533

255 S.E.2d 533

220 Va. 97

Juan Barretto MENDEZ, Jr. v. COMMONWEALTH of Virginia.

Record Nos. 781203, 781204.

Supreme Court of Virginia.

June 8, 1979.

G. Daniel Forbes, Franklin, for appellant.

Robert H. Herring, Jr., Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee, in Record No. 781203.

Burnett Miller, III, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee, in Record No. 781204.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

HARMAN, Justice.

After a bench trial, Juan Barretto Mendez, Jr., (Mendez or defendant) was convicted of bribery, Code § 18.2-447, and perjury Code § 18.2-434. He was sentenced to serve a two-year term in the penitentiary on each charge. We granted writs of error on limited grounds to review defendant's claims (1) that there was insufficient evidence to sustain the bribery conviction, and (2) that an oath administered to him on an affidavit was gratuitous and insufficient to support a perjury conviction.

On December 19, 1976, Mendez, a convict imprisoned at Southampton Correctional Center, was approached by two correctional officers, L. W. Green and Robert T. Jones, Jr., who were conducting a routine "shakedown" of prisoners. The officers requested defendant, who was then in the prison yard to enter a building where he could be searched. When defendant refused to accompany the officers, Officer Jones remained with Mendez and sent Officer Green to inform a supervisor of the defendant's refusal to be searched.

Jones testified that Mendez, who attempted to focus the officer's attention elsewhere, removed a plastic bag from one of his pockets and dropped it to the ground. Jones retrieved the bag, which contained 31 marijuana cigarettes. Mendez was then charged with possession of marijuana.

The bribery charge resulted from a conversation between defendant and Officer Green on February 5, 1977, while the marijuana charge was pending against defendant.

The record shows that Green's testimony was:

"that he and Mendez were discussing a charge that had been brought against Mendez by Officer R. T. Jones . . . involving marijuana. That in the process of the conversation he (Green) told Mendez that there was always a solution to every problem, at which time Mendez asked him, 'Do you know Jones' financial status?' Green said he told Mendez that his answer was, 'Jones ain't rich,' at which time the defendant, Mendez, asked Officer Green . . . 'Do you think Jones would take money to testify in court?' Green's reply to him was he didn't know but he would relay the message.

"He testified further that there was no specific figure mentioned between Mendez and himself in the conversation, and then in answer to a question as to why Mendez was talking to him and what Mendez wanted, he testified that Mendez wanted Jones to testify that he was not sure if he saw Mendez drop the marijuana on the ground. . . ."

The record shows Green related this conversation to Jones and the bribery charge was lodged against Mendez.

Defendant points out that no sum of money was ever mentioned in his conversation with Green, that he never discussed a change in Jones' testimony with Jones, and that he never directly offered money to Jones. From this Mendez argues that the evidence, viewed in the light most favorable to the Commonwealth, shows "no more than an inquiry concerning possible bribery." We find no merit in this argument.

Code § 18.2-447, in pertinent part, provides:

"A person shall be guilty of bribery under the provisions of this article:

"(1) If he offers, confers or agrees to confer upon another (a) any pecuniary benefit as consideration for or to obtain or influence the recipient's decision, opinion, recommendation, vote or other exercise of discretion as a public servant or party official, or (b) any benefit as consideration for or to obtain or influence either the recipient's decision, opinion, recommendation, vote or other exercise of official discretion in a judicial or administrative proceeding or the recipient's violation of a known legal duty as a public servant or party official . . . ."

We had occasion in Ford v. Commonwealth, 177 Va. 889, 15 S.E.2d 50 (1941), to construe similar language which appeared in Code, 1936, § 4496, a statutory ancestor of our present statute. There we said:

"The comprehensive and inclusive language of the statute . . . prohibits three specific acts, the giving of a bribe, the offer of a bribe and the promise of a bribe, any one of which is a complete crime in itself. It applies where either of such acts are intended to influence the officer on any 'matter, question, cause, or proceeding' which may be pending, or on any 'matter, question, cause, or proceeding' which 'may by law come or be brought before' him in his official capacity, and consequently applies to present causes or proceedings and to causes or proceedings which may arise in the future.

"The statute places the corrupt gift, offer, or promise all on the same plane. It defines each of such acts as bribery and provides the same punishment. An attempt to corrupt, evidenced by an offer or promise of a gift, constitutes bribery on the part of the offeror or promisor as fully and completely as if a corrupt gift had been made and accepted. The gist of the offense is the criminal intent to undermine the proper and orderly administration of justice. The crime is...