People v. Hallner

• Decision Date: 10 December 1954
• Docket Number: Cr. 5627
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Herbert HALLNER, Defendant and Respondent.
• Court: California Supreme Court

Page 393

277 P.2d 393

43 Cal.2d 715

The PEOPLE of the State of California, Plaintiff and Appellant, v. Herbert HALLNER, Defendant and Respondent.

Cr. 5627.

Supreme Court of California, In Bank.

Dec. 10, 1954.

Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., S. Ernest Roll, Dist. Atty., Jere J. Sullivan and Simon L. Rose, Deputy Dist. Attys., Los Angeles, for appellant.

Bodkin, Breslin & Luddy, Henry G. Bodkin, George M. Breslin, Michael G. Luddy and Peter E. Giannini, Los Angeles, for respondent

EDMONDS, Justice.

Herbert Hallner was charged in three counts of an indictment with having offered bribes to certain officers of the City of Los Angeles in violation of section 67 of the Penal Code. ¹ The People have appealed from an order granting Hallner's motion to set the indictment aside.

The named officers were the president of the board of police commissioners, the city attorney and the executive assistant city attorney. It was alleged that Hallner offered the bribes with intent to influence the officials in their 'acts, decisions, votes, opinions and proceedings' with respect to certain pending applications for permits to 'conduct games of skill and science business' within the city. As stated by the trial judge in his memorandum opinion, the order was based upon the conclusion that 'executive officers of the City of Los Angeles are not executive officers of this state as defined in section 67 of the Penal Code.'

It is undisputed that the evidence presented to the grand jury establishes reasonable and probable cause to believe that the city officials were executive officers and that Hallner offered bribes to them to influence their official determinations. The sole question is whether 'executive officer of this state,' as used in section 67, includes an executive officer of a city.

The People rely upon prior decisions of the District Court of Appeal construing the phrase 'of this state' as being the equivalent of 'in this state.' As Hallner reads the statute, it applies only to an offer of a bribe made to an officer of the State of California.

In 1883, this court in dictum said that section 67 was all inclusive. 'The sixty-seventh section of the Penal Code provides that any person who gives or offers a bribe to any executive officer, with intent to influence him in respect to any act, etc., as such officer, is punishable. By the sixty-seventh section the offense defined is that of one who offers, by the sixty-eighth, that of one who receives a bribe.' People v. Markham, 64 Cal. 157, 162, 30 P. 620, 622.

Many years later, one Singh, who had been charged with offering and giving a bribe to a district attorney applied to the District Court of Appeal for a writ of prohibition to stay all proceedings upon the indictment. In denying Singh relief, the court referred to Section 343 of the Political Code, as then in effect (see Sec. 1001, Gov.Code) which classified the district attorney as 'a 'civil executive officer". It also said: '[T]here is no other section in the Penal Code which makes it a crime to give or offer a bribe to an executive officer, either county or state, for the purpose of corruptly influencing his official action than section 67, and we shall not commit ourselves to the belief * * * that the Legislature has either intentionally or inadvertently omitted to pass a law authorizing the punishment of a person for corrupting or attempting to corrupt a county executive officer.' Singh v. Superior Court, 44 Cal.App. 64, 67, 185 P. 985, 986.

Hallner argues that, after the court determined the status of the district attorney, further discussion of the questions presented constitutes dictum. But the holding that section 67 includes any executive officer 'in the state' was expressly made the ground of decision. At the least, it was an alternative one.

Dictum in Gayer v. Whelan, 60 Cal.App.2d 616, 619, 141 P.2d 514, 516, supports this analysis of the Singh opinion. '[It] did not directly hold that the district attorney was a state officer, but held in view of the fact that the legislature did not make and provision relating to the bribing of an executive county officer, as distinguished from an executive state officer, the term executive officer of the state was all inclusive.'

Hallner next contends that if the Singh case is more than dictum, it should be overruled. He argues that section 67 is not ambiguous, hence not subject to interpretation. But the word 'of' has different meaning. It may be used in its possessive sense or to indicate geographic location. 'Lands of the state' means 'lands within the state.' Sisson v. Board of Supervisors of Buena Vista County, 128 Iowa 442, 104 N.W. 454, 458, 70 L.R.A. 440. 'City court of Macon' means the city court should be located in Macon. Ivey v. State, 112 Ga. 175, 37 S.E. 398, 400. 'Highways of Baltimore city' is not descriptive of or relating to title or ownership, but refers to location and municipal jurisdiction. Patapsco Electric Co. v. City of Baltimore, 110 Md. 306, 72 A. 1039, 1041. 'Courts 'of' the state' means 'courts 'in' the state'. Gregory v. City of Memphis, 157 Tenn. 68, 6 S.W.2d 332. 'Of a city' was used in a geographic sense, not in a possessive one. Avant v. Ouachita Parish School Board, 215 La. 990, 41 So.2d 854, 858.

At the time the Singh case was decided, section 68 of the Penal Code, enacted at the same time as the preceding section, declared it to be unlawful for any 'executive officer or person elected or appointed to an executive office' to accept a bribe. By the judicial construction of section 67, that enactment and section 68, as then in effect, were complementary statutes insofar as they concerned executive officers. Each of these statutes made the defined crime a felony and prescribed punishment of imprisonment for from one to fourteen years with the additional penalty of disqualification from holding any office in this state.

In 1929, by the enactment of section 67 1/2 of the Penal Code, the Legislature made it unlawful for any person to give or offer any bribe 'to any ministerial officer, employee, or appointee of the state of California, county or city therein or political subdivision thereof.' One who violated the statute was guilty of a misdemeanor. In 1939, the punishment was increased by providing that, if the theft of the thing given or offered as a bribe would be grand theft, the offense is a felony.

Section 68 was enlarged by the Legislature of 1933 to make it unlawful for any 'executive or ministerial officer, employee or appointee of the State of California, county or city therein or political subdivision thereof,' to ask for, agree to receive or receive a bribe. The amendment made no change in the prescribed punishment.

It is significant that since the decision in the Singh case, although the Legislature has considered the subject of bribery of public officers and made a number of statutory changes it has not amended section 67. Where a statute has been construed by judicial decision, and that construction is not altered by subsequent legislation, it must be presumed that the Legislature is aware of the judicial construction and approves of it. Slocum v. Bear Valley Irrigation Co., 122 Cal. 555, 556, 55 P. 403; People v. Southern Pacific Co., 209 Cal. 578, 595, 290 P. 25.

The legislative intent should be ascertained not alone from the literal meaning of the words of the statute but upon a consideration of all of the law relating to the same subject matter. Stafford v. Realty Bond Service Corp., 39 Cal.2d 797, 805, 249 P.2d 241; County of Los Angeles v. Frisbie, 19 Cal.2d 634, 639, 122 P.2d 526; People v. Roland, 134 Cal.App. 675, 683, 26 P.2d 517. The statutes now in effect, in conjunction with the interpretation given section 67 in the Singh case, present a consistent pattern for the punishment of a person giving or offering to give a bribe to a public officer, or one who, as a public officer, asks for or receives a bribe. The offeror of a bribe to an executive officer in the state is guilty of a felony and is disqualified from holding public office. § 67. Any such officer who asks for or receives such a bribe is subject to the same penalty. § 68. It is also a crime to give or offer a bribe to any ministerial officer, the penalty being dependent upon the value of the bribe. § 67 1/2. The ministerial officer who asks for or receives such a bribe is guilty of a felony regardless of the amount of the bribe. § 68. Giving or offering a bribe to a judicial officer is punishable as a felony. § 92. It is also a felony for a judicial officer to ask for or to receive a bribe. § 93. A person who gives, or offers, a bribe to a member of any legislative body of the state or of its political subdivisions, or a member of any such body who asks for or receives a bribe, is guilty of a felony. §§ 85, 86, 165. There are no overlapping statutes and no omissions if section 67 is applicable to any executive officer in the state.

Since the decision in the Singh case, five convictions for violation of section 67, or for conspiracy to violate it, have been upheld although the person bribed was not a state officer. People v. Jackson, 42 Cal.2d 540, 268 P.2d 6 (policeman); People v. Mathews, 124 Cal.App.2d 67, 268 P.2d 29 (policeman); People v. Griffin, 98 Cal.App.2d 1, 219 P.2d 519 (sheriff); People v. Keyes, 103 Cal.App. 624, 284 P. 1096, 1105 (district attorney). In each of the last four cases a petition for hearing in this court was denied. Only in the Mathews case was the meaning of the statute challenged and the court followed the Singh decision. 'After the enactment of a statute, when a construction has been placed upon it by the highest court of the state, it will be steadily adhered to in subsequent cases, unless very plainly shown to have been wrong, and more especially where the construction so given is supported by a line of uniform decisions, and where it has been acquiesced in by the...