Nelson v. State

• Citation: 413 S.W.2d 358,219 Tenn. 680,23 McCanless 680
• Parties: , 219 Tenn. 680 Ralph M. NELSON and Roy W. Wininger v. STATE of Tennessee.
• Decision Date: 24 February 1967
• Court: Tennessee Supreme Court

Page 358

413 S.W.2d 358

23 McCanless 680, 219 Tenn. 680

Ralph M. NELSON and Roy W. Wininger v. STATE of Tennessee.

Supreme Court of Tennessee.

Feb. 24, 1967.

Rehearing Denied April 7, 1967.

Burkett C. McInturff, Kingsport, for plaintiff in error.

William H. Cate and Lynn M. Lauderback, Kingsport, on petition to rehear for plaintiffs in error.

George F. McCanless, Atty. Gen., and Robert F. Hedgepath, Asst. Atty. Gen., Nashville, for the State, and John C. Wooten, Dist. Atty. Gen., Kingsport, prosecuted the case for the State in the trial court.

OPINION

BURNETT, Chief Justice.

The plaintiffs in error were convicted of accepting a bribe, and were sentenced to serve two (2) years in the State penitentiary for this offense. From this conviction they have seasonably appealed, briefs have been filed, arguments heard, and we now have the matter for disposition.

This record shows that on or about August 1, 1965, a citizen of Sullivan County was involved in an automobile accident. A Deputy Sheriff of that county investigated the wreck and found this citizen driving this car very much intoxicated. Later the Deputy Sheriff, who made the original investigation, was joined by plaintiff in error, Nelson, in the investigation. The first officer who arrived at the scene of this wreck called wreckers so that the wrecked automobiles could be removed from the highway. One of the wreckers called was owned and driven by the plaintiff in error, Wininger. The plaintiff in error, Nelson, arrived at the scene of the accident with Wininger. The citizen who was driving the automobile was placed in the patrol car and carried to jail.

Plaintiff in error, Nelson, informed the officer who made the original investigation that he would like to prepare the arrest report and the warrant against this citizen. The first officer who turned the matter over to Nelson said, 'The best I recall I believe he made the statement that he had been waiting on that a long time, that Mr. Moore almost got him and another officer fired in Johnson City, and he had been waiting a long time to catch him.' This statement was what plaintiff in error, Nelson, said to this officer.

Upon arriving at the jail, plaintiff in error, Nelson, prepared an arrest report disclosing that Moore, the citizen, had been arrested for DWI (driving while intoxicated). At that time a blank warrant was signed by plaintiff in error, Nelson which also charged Moore with DWI. Nelson took his driver's license, as is customary when one is arrested for DWI.

In the report which Nelson prepared, it was disclosed that the trial was set for 11:00 a.m. on the following Tuesday. Officer Hearne, who made the original investigation, appeared in court at that time and there was no one there. This officer testified that he saw Nelson later that afternoon and that he was told then that Moore had been tried on Monday, that is prior to the time the case was set, and that Moore was very pleased that he had been treated so nicely by the officers.

Mr. Moore, the citizen, testified that he had a wreck while drinking and that the plaintiff in error, Nelson, took him to jail; he said he was released from jail and went to see the plaintiff in error, Wininger, about his tow bill. Moore states that he told Wininger that he was very much interested in keeping the publicity down. Wininger then told him that he thought he might be able to help in this matter but that it would cost him $500.00. Moore put $500.00 on Wininger's desk and picked up his driver's license which had been confiscated by Nelson at the time of the original arrest.

Subsequent to this, an investigation took place by an agent of the Tennessee Bureau of Investigation. This agent testified that in the course of his investigation he discovered that Mr. Moore had been arrested on a charge of DWI and that the charge had later been reduced to public drunkenness in the General Sessions Court. A Deputy Clerk of that court testified that Mr. Moore was fined $10.00 for public drunkenness. An officer in charge of the jail testified that he made an entry in the official log book of the county jail that Mr. Moore was arrested for DWI. This jail officer testified that this log book entry was made from the arrest report which was prepared by the plaintiff in error, Nelson.

The judge of the General Sessions Court at Kingsport testified that the plaintiff in error, Nelson, brought him an arrest warrant against Mr. Moore on the morning following the arrest which charged Moore with public drunkenness. This apparently was an unusual occurrence inasmuch as Nelson had taken a cash bond from Mr. Moore without first contacting the General Sessions Judge about it.

The assignments of error are to the effect that (a) the court erred in failing to quash the indictment; (b) that the evidence preponderates against the verdict and in favor of the innocence of the accused; and (c) that the charge of the court was insufficient.

The argument with reference to failing to quash the indictment alleges there are some two or three charges in the one count and that such an indictment is faulty and thus it should have been quashed. When reading the indictment it does not say that plaintiffs in error were charged with violating any particular statute, but merely says that these two plaintiffs in error 'did unlawfully and feloniously, each acting in concert with the other, corruptly accepted or agreed to accept money in the amount of $500.00 with the corrupt or evil intent to refrain or desist from prosecution of Roy B. Moore, the said Roy B. Moore having been arrested by defendant Ralph M. Nelson, a deputy sheriff, on a charge of driving while under the influence of an intoxicant. That said defendants, pursuant to the same common criminal enterprise, did corruptly promise to return to Roy B. Moore his drivers license and fix the case.'

The argument is made that this single count indictment more or less contains two or three different charges, charging both bribery and conspiracy, and it is argued that the Deputy Sheriff is indicted under § 39--804, T.C.A., and that the private citizen, Wininger, is indicted under § 39--803, T.C.A. As we read the indictment we do not so think. We have quoted the pertinent portions of the indictment above and cannot see how that this could possibly be true.

Section 39--803, T.C.A., makes it a felony for any person to offer a bribe to a peace officer, whereas the following section, 39--804 T.C.A., makes it a felony for a peace officer to accept a bribe. The last section, of course, includes in it a reference to § 39--803, T.C.A., by saying that if any peace officer mentioned in that section does take a bribe he is so guilty. This indictment obviously is against the peace officer, Nelson, for accepting the bribe and against Wininger, a private citizen, as an aider and abettor to Nelson. In other words, the statutes as such do not make it a crime to give a private citizen money, but this private citizen must be in league with some of the peace officers mentioned in this statute; if the bribe is passed through the private citizen to the peace officer, then as a result of attempting to bribe this way this private citizen is merely an aider and abettor. This indictment does not charge Moore who would be indictable under § 39--803, T.C.A., by offering the bribe, but this indictment is against the peace officer and the private citizen who aided and abetted the peace officer in accepting this bribe.

Section 39--109, T.C.A., provides in effect that anyone aiding and abetting in any criminal offense shall be deemed as a principal. Thus it is that when we read the indictment, as above copied, we find it is charged that both Nelson and Wininger acted in concert and 'corruptly accepted or agreed to accept money * * *' We have carefully read the charge of the court and this is exactly what the court charged the jury, that is, the law with reference to aiding and abetting, which it is.

It is next argued that the evidence preponderates against the verdict of the jury and in favor of the innocence of the accused. In arguing this assignment counsel takes the position that when Mr. Moore testified in this case he testified as to the facts as heretofore related but didn't say anywhere that he was giving this money as a bribe or that that was the purpose of it at all. Since he didn't say he was giving this as a bribe, he was merely giving it to cut down publicity, and it was not a bribe and the corpus delicti of such an offense had not been established and thus the case should be dismissed.

In the first place in establishing the corpus delicti, circumstantial evidence may be offered to show whether or not one was guilty of accepting a bribe. See Wharton's Criminal Evidence, 12th Ed., Vol. 3, p. 469, and many cases there cited. Of course, when Mr. Moore testified he testified as to the facts; he didn't have to call it a bribe, but it is from these facts of what he did and what happened whether or not we determine there was a bribe. As heretofore related, the facts show that he was very drunk and was arrested for driving while intoxicated, and it is perfectly obvious to all that this is an entirely different crime from being arrested for public drunkenness, and carries with it many greater penalties than that for public drunkenness. When the facts show that he gave Officer Nelson the money to cover a fine for public drunkenness and then he went and talked to the truck operator who told him it would cost him $500.00 which he laid down on the desk, and then picked up his driver's license which the officer had left there; there is no other conclusion that a jury or common sense people could reach than that a bribe had been offered and accepted.

People just don't go out and say I bribed John Jones to do so and so, John Jones being a peace officer. In the first place, if people do things of this kind they don't talk about it; it is generally done in...