Newman v. People

• Citation: 47 P. 278,23 Colo. 300
• Parties: NEWMAN v. PEOPLE.
• Decision Date: 07 December 1896
• Court: Supreme Court of Colorado

47 P. 278

23 Colo. 300

NEWMAN v. PEOPLE.

Supreme Court of Colorado

December 7, 1896

Error to district court, Park county.

Michael H. Newman was convicted of bribery, and brings error. Affirmed.

The plaintiff in error was the sheriff of Lake county, Colo. In the district court of that county he was proceeded against under an information consisting of four separate counts, the first two of which charged him, as sheriff, with bribery under section 1274, Mills' Ann. St. (Gen. St. 1883, § 791), and the last two under section 1302, Mills' Ann St. (Gen. St. 1883, § 818), with receiving money at two different times for omitting to perform a duty appertaining to his office as sheriff, in that, for the consideration named, he agreed to omit, and did omit, to seize and take before some judge or justice of the peace of Lake county certain gambling devices belonging to George L'Abbe which the latter had in his possession to the knowledge of the defendant; which duty so to seize and take was imposed upon him, as sheriff, under section 1343, Mills' Ann. St (Gen. St. 1883, § 849), which is as follows: 'It shall be the duty of all sheriffs, coroners, constables, police officers of cities, and other officers charged with executing the laws of this state, whenever it shall come to the knowledge of any such officer that any person has in his possession any cards, tables, checks, balls, wheels or gambling devices of any nature or kind, used or kept for the purpose of gambling or playing at any game of chance; or that any cards, tables, checks, balls, wheels or gambling devices used or kept for the purposes aforesaid may be found in any place, to seize and take such cards, tables, checks, balls, wheels, or gambling devices, and convey the same before some judge or justice of the peace of the county in which the same may be found; and it shall be the duty of such judge or justice of the peace to inquire of such witnesses as he shall summon to appear before him in that behalf, touching the nature of such gambling devices, and if such judge or justice shall ascertain that the same are used or kept for the purpose of gambling or playing at any game or games of chance, it shall be his duty to destroy the same. It shall be lawful for officers in executing the duties imposed upon them by this section to break open doors for the purpose of obtaining possession of any such gambling devices; and all persons having possession of any of the articles aforesaid shall be conveyed before some judge or justice of the peace of the county in which they may be found, and held or committed for appearance at the next term of the district court to answer to any indictment or information which may be preferred against them or any of them.' Soon after the defendant was apprehended, the venue of the case was changed to the district court of Park county, where all subsequent proceedings occurred. The defendant moved to quash all of the counts of the information, and the court sustained the motion as to the first two counts, and overruled it as to the last two. Thereupon the defendant was arraigned, and pleaded not guilty to the counts in the information remaining after the first two were quashed, and upon a trial before a jury was convicted, and by the court sentenced to imprisonment in the county jail for six months, and his office declared vacant. He prosecutes his writ of error to that judgment and sentence.

Patterson, Richardson & Hawkins, for plaintiff in error.

Byron L. Carr, Atty. Gen., Calvin E. Reed, Asst. Atty. Gen., J. W. Taylor, and A. P. Rittenhouse, for the People.

CAMPBELL J. (after stating the facts).

That the defendant corruptly received money for omitting to perform this official duty, if such it was, the record leaves no room for doubt. But he contends, inter alia, that the statute imposing this duty is unconstitutional. A number of errors have been assigned, but only those will be considered which have been argued by counsel. They are: First, that the judgment was pronounced upon counts of the information which had been quashed; second, that the defendant was convicted under an unconstitutional statute; third, that there was a variance between the evidence and the information; fourth, that the offense, if any, was instigated and procured to be committed by the prosecuting witness; fifth, that there was error in certain instructions.

1. The verdict of the jury was in these words: 'We, the jury, find defendant guilty as charged in the first and second counts of the information.' The contention of counsel for plaintiff in error is that this verdict is absolutely void and of no effect, because it finds the defendant guilty under the two counts of the information that were quashed. If the record accompanying this verdict were not considered, the argument might be plausible. The four counts in the information were not numbered 1, 2, 3, and 4, though they were separately set forth. When the two coming first (which appropriately might be designated counts No. 1 and No. 2) were quashed, there were but two remaining, and the information then stood as though it had always contained but these two, which, as related to each other and to the information, were as 1 and 2. The defendant pleaded not guilty to them after the court disposed of the motion to quash, and in its instructions to the jury the court referred to these counts as No. 1 and No. 2, and in connection therewith stated what they respectively charged against the defendant. In this view, neither the court nor the counsel nor the jury was misled, and no prejudice could possibly result to the defendant.

2. The variance alleged is that, whereas the charge was that the defendant corruptly agreed to omit to seize and take before a judicial officer gambling devices, the proof, at most, showed nothing but a vague understanding between the defendant and the gamblers from whom the money was received that he, the defendant, was not to close the gambling houses. The distinction which counsel endeavor to make is too unsubstantial and refined for courts to recognize in the administration of the criminal law. It is not to be expected that an arrangement of the sort which the sheriff undoubtedly made with the gamblers would be explicit as to details, or reduced to writing. The understanding necessarily would be somewhat general in its nature; and from the facts in evidence in this case we consider that there is no material variance between the allegation and the proof, and think the fair inference, which the jury was entitled to draw, was this agreement contemplated that the sheriff was to omit to perform those acts which reasonably or necessarily would tend to close the gambling houses, or to interfere with the carrying on of gambling. To seize these gambling devices was one effective and statutory way to close the houses, and we have no doubt from the evidence that the sheriff's corrupt agreement included his omission to do the very thing charged, and that the jury were abundantly justified in so finding.

3. An attempt is made to bring this case within the doctrine of Connor v. People, 18 Colo. 373, 33 P. 159, and Saunders v. People, 38 Mich. 213, wherein it was held that the crime of larceny was not committed where the taking was instigated or suggested to the defendant by the owner, or agent of the owner, of the property, for the reason that nonconsent of the owner must be shown; in which cases it was also announced that courts should not give their sanction to the prosecution of persons who committed the acts charged against them at the instigation of others, although the object thereof was to effect their arrest while the act was being committed, and to capture old offenders. Counsel here seek to extend this doctrine to a crime in the nature of bribery, where the object of the bribe giver was to gain some advantage for himself, and to hold over the sheriff, as a club, this receipt of money, in case he should thereafter attempt to interfere with the former's unlawful practices. We think this cannot be done. To constitute bribery, the act of at least two persons is essential,--that of him who gives and him who receives. The minds of the two must concur; and, as to the point now before us, it is immaterial whether the giver makes the first advances or gives the money to get some personal advantage to himself. In fact, in most, if not all, of the cases the very object of the giving of a bribe is to obtain for the giver, or the one for whom he is acting, some supposed advantage or gain for himself.

4. No useful purpose would be subserved in discussing the instructions. We have carefully examined the evidence and the instructions given by the court and those refused which defendant submitted, and find that the court's rulings thereon were substantially correct. The point made that defendant did not, at the time he received the money, know of the existence of this particular statute, counsel admit would be no defense under an indictment for failure to do the thing required; but, where the charge is receiving money for an agreement to omit to perform that duty, evidence by the defendant of his ignorance of this statute is material as tending to sustain his claim that he never made an agreement not to perform the duty imposed by the statute. An instruction asked by defendant covered this theory, and was refused. This ruling was not, under the facts, erroneous. While defendant may not have known of this specific statute he is conclusively presumed to know that gambling is a crime, and the record shows that he did know it, and, in general, that his official duty was to execute the laws against gambling. His transaction with the gamblers is conclusive that he knew what his duty was in this respect. Certainl...