People v. Mathews, Cr. 5105

• Decision Date: 23 March 1954
• Docket Number: Cr. 5105
• Citation: 124 Cal.App.2d 67,268 P.2d 29
• Parties: PEOPLE v. MATHEWS.
• Court: California Court of Appeals Court of Appeals

Page 29

268 P.2d 29

124 Cal.App.2d 67

PEOPLE v. MATHEWS.

Cr. 5105.

District Court of Appeal, Second District, Division 1, California.

March 23, 1954.

Rehearing Denied April 5, 1954.

Hearing Denied April 22, 1954.

Lowell Lyons, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., James D. Loebl, Dep. Atty. Gen., for respondent.

PER CURIAM.

This is an appeal from the judgment and from the order denying a motion for a new trial.

The information alleged that defendant offered and gave a 'bribe to S. A. Nelson, who was then and there an executive officer of the State of California, to wit, a police officer of the City of Los Angeles, County of Los Angeles, State of California, with the intent', etc.

The offense involved the offer by defendant of $35 to the officer when defendant was arrested for selling a pint of whiskey in violation of the law.

The appeal presents but one issue.

It is contended by appellant that, 'Failure to prove bribery of an executive officer of the State of California fails to prove any cause of action under Section 67, Penal Code, therefore, defendant should be restored to his liberty and judgment vacated.' In this connection appellant argues that, 'The evidence indisputably shows and the Court must take judicial notice, that the City of Los Angeles was at all times herein material, a chartered freehold city, organized and existing under municipal home rule under provisions of Article XI, Section 8 1/2 of the Constitution of the State of California, and, that said officer to whom defendant and appellant is alleged to have offered a bribe was in fact an officer of said City of Los Angeles and not an executive officer or any other officer of the State of California.

'Section 67 of Penal Code particularizes an 'executive officer of this state,' this definition is clear and unequivocal. Section 7, subdivision 16 of Penal Code correctly guides the interpretation of the above phrase in that it must be construed according to context.' (Italics included.)

Section 67 of the Penal Code reads as follows:

'Every person who gives or offers any bribe to any executive officer of this state, with intent to influence him in respect to any act, decision, vote, opinion, or other proceeding as such officer is punishable by imprisonment in the state prison not less than one nor more than fourteen years, and is disqualified from holding any office in this state.' (Italics included.)

Respondent's argument to the contrary cites People v. Finkelstin, 98 Cal.App.2d 545, 220 P.2d 934, which relates to the Chief of Police of Oxnard, California, as the person to be bribed; and Singh v. Superior Court, 44 Cal.App. 64, 185 P. 985, which relates to the District Attorney of Glenn County, as the official to whom the bribe was offered. Respondent argues further that, 'Prior to its amendment in 1933, Section 68 of the Penal Code read as follows:

"Every executive officer or person elected or appointed to an executive office, who asks, receives, or agrees to receive, any bribe, * * *.' People v. Lips, 59 Cal.App. 381, 385, 211 P. 22, applied that section to a deputy sheriff, and People v. Markham, 64 Cal. 157, 30 P. 620, applied it to a police officer.'

In the Singh case, supra, 44 Cal.App. at page 67, 185 P. at page 986, the court comments as follows: '* * * We think what the Legislature intended to say in section 67 was that 'every person who gives or offers any bribe to any executive officer in this state,' etc. This construction is strengthened by the consideration that there 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, in the absence of more persuasive reasons than those which learned counsel have been able to present here, 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. And if the Legislature had intended to limit the application of section 67 to state officers, it would have been a very easy matter for it to have given apt and unambiguous expression of such intention. It would have undoubtedly said, if such had been its purpose, 'any state executive officer,' in the place of 'any executive officer of this state.''

On the other hand appellant argues that, 'The amendment of the Penal Code, Section 817, clearly defines municipal peace officers, and, as the City of Los Angeles is under a municipal freeholders charter, such persons are not executive officers of the state, and an attempted bribery of such person was not that class of person embraced within the statute.

'The decisions as to just who are and who are not executive officers has been clarified by the amendment in 1953 of the Statutes of California as to Section...