People v. McGarry

• Decision Date: 05 April 1904
• Citation: 136 Mich. 316,99 N.W. 147
• Court: Michigan Supreme Court
• Parties: PEOPLE v. McGARRY.

99 N.W. 147

136 Mich. 316

PEOPLE v. McGARRY.

Supreme Court of Michigan

April 5, 1904

Exceptions from Circuit Court, Allegan County; Alfred Wolcott, Judge.

Thomas F. McGarry was convicted of bribery, and he brings exceptions. Affirmed.

Allen B. Morse, for appellant.

Wm. B Brown, Pros. Atty., and Chas. E. Ward, Asst. Pros. Atty (Wesley W. Hyde, of counsel), for the People.

HOOKER, J.

This cause is closely related to that of People v. Salsbury (Mich.) 96 N.W. 936. In this cause the defendant is charged with bribing one Salsbury, who was convicted of receiving a bribe in that case. It follows that the cases are similar, and, as a perusal of that case will aid in understanding this, we do not state the facts at length in this opinion. Several and perhaps what may properly be called the more important questions discussed in the briefs of defendant in this case have been settled by the former opinion, which, it is but just to say, was filed after the brief had been prepared and filed in this cause. In view of that decision, we find it unnecessary to further refer to such questions, and will endeavor to deal only with such as were not passed upon there.

There are nearly 600 assignments of error, and it will be impracticable to deal with each separately. We will therefore be guided by the brief of counsel for the appellant, which has attempted to group them with relation to specific questions.

Was there jurisdiction to try defendant on May 1st? This case being pending in the superior court of Grand Rapids, it was found difficult to obtain a jury, and the judge of that court made an order that it be transferred to the circuit court for the county of Allegan, and that the respondent appear there on May 1st of the then current year. Upon that day the court was opened; Hon. Alfred Wolcott judge of the Seventeenth Circuit, presiding; he being a resident of Grand Rapids, which was within the Seventeenth Circuit. Counsel for defendant objected to proceeding with the trial upon the ground that it appeared form the journal that upon March 29th previous the circuit court for Allegan county had been adjourned without day, and that there was consequently no authority for calling the jury, or requiring the defendant to go to trial, or proceeding further in the matter. The presiding judge caused the journal to be presented to Judge Padgham, the judge of that circuit, who held court therein upon said March 29th, to be signed, if correct, and, if not, to be corrected and signed. Counsel then offered to show that the journal as originally written was as follows, viz., 'Thereupon court adjourned,' and the testimony was held inadmissible. The journal was afterwards produced, and it showed the following viz., 'Thereupon court adjourned until May 1st, 1902,' over the signature of Judge Padgham. Counsel caused to be inserted in this record, and made a part of the bill of exceptions, a certificate of the clerk to a transcript of the proceedings of March 29th, which includes the statement that the words 'until May 1st' were added on April 29th, and that 'no written order between March 29th and April 28th has been filed in this court, by the judge thereof, to adjourn said court to a day certain.' Counsel say that 'it does not appear that it was a correction entry, but appears to have been made to meet the order of the judge of the superior court of Grand Rapids.' If the question before us can be raised in the face of the signed journal, which, upon its face, shows an adjournment to May 1, 1902, and which can hardly be said to be susceptible to contradiction, it is not a ground for reversal in this cause. It is doubtless true that a court may adjourn sine die, and, where its record shows that it has done so, it may be doubtful if the judge can lawfully reopen the term. Counsel have cited several such cases, but that is not this case, under the proof offered. The most that is inferable from the uncontradicted journal is that the court did not adjourn to a day certain, not that it adjourned sine die, unless by operation of law. In such a case, as in the case of adjournment to a definite day, the court exists, in 'some respects suspended, but not destroyed.' See Eastman v. Concord, 64 N.H. 264, 8 A. 822; People v. Bank, 53 Barb. 412. This case may, in one view, be said to be like one where the judge fails to attend at the time to which it has been adjourned. Langhorne v. Waller, 76 Va. 213, is such a case. It is fair to say, however, that a statute is construed to so provide. See, also, Union Pac. Ry. Co. v. Hand, 7 Kan. 380. The case of People v. Sullivan, 115 N.Y. 190, 21 N.E. 1039, is closely analogous to the present case. In that case a court was adjourned to a day certain, and the judge was detained for two days, when he resumed the hearing of a criminal case on trial at the time of the adjournment. It was said that 'every term continues until the call of the next succeeding term, unless previously adjourned sine die.' In that case it adjourned to a day certain in the first instance, but no order was made thereafter for two days. And it has been held that, where adjournment is to a day certain, the court may meet and proceed with business at an earlier date. Cole Co. v. Dallmeyer, 101 Mo. 57, 13 S.W. 687; Bowen v. Stewart, 128 Ind. 508, 26 N.E. 168, 28 N.E. 73; Wharton v. Sims, 88 Ga. 617, 15 S.E. 771, cited in 1 Enc. of Pl. & Prac. 245. It is contended that Comp. Laws, � 303, controls this, but we think not. If this statute must be held mandatory, and to require an ending of the term at the end of five days, when the judge does not appear at the beginning of term, or even after adjournment, which we do not decide, we cannot assume that the judge was not present each day, although no business was done; and, if so, the clerk and sheriff would be powerless to adjourn without day, as it could not be said that the judge did not attend. There is no presumption in this case that he did not attend. As in the New York case cited, the point is purely technical. Judge Wolcott was qualified to sit in the cause. It does not appear that the cause was transferred upon the ground that he was not.

Did the indictment charge an offense? We think the question was raised and decided in the Case of Salsbury. One feature of it will be noticed, however. It seems to be contended that the indictment is bad for the following reasons: (1) The proposed contract was one which the council had no lawful authority to make; (2) it was not an official duty of the city attorney to advise the making of an unlawful contract. Counsel say that under such circumstances his act would not fall within the statute, which punishes only bribery to perform acts within the officer's lawful authority. In other words, the city attorney might be guilty of bribery in agreeing to advise lawful action, but could not be for advising unlawful action, by the council. The mere statement of such a proposition is sufficient to show its fallacy, as, in the claim that one would not be convicted of bigamy, because the bigamous relation was with a married woman, and therefore a void marriage, the validity of the act proposed is not the test. The statute punishes the city attorney for officially giving an opinion corruptly. It is upon the theory that his opinion may be expected to influence the council, alderman, or other officer. It does not depend upon the goodness or badness of the advice, or whether it favors or opposes a given measure, but upon the intent and corruption involved. Again, it is as much an official duty to advise against a measure upon the question of authority on the part of the council as any other. Here the defendant is charged with bribing Salsbury to advise a contract which he now claims was void, but which he then paid for advising to be valid, and his counsel claims immunity upon a ground which intensifies his turpitude. The statute under which the defendant is prosecuted makes no such distinction. We think, as we said in our former opinion, that this measure was one which might come officially before the city attorney, which is all that was necessary. We have not overlooked the recent case of State v. Butler (Mo. Sup.) 77 S.W. 560. That case arose upon an ordinance passed by the St. Louis common council. The defendant was charged with an attempt to bribe a member of the board of health by offering him $2,500 if he would vote as a member of such board to accept a certain bid for the reduction of the garbage of the city. The court found that the ordinance conferring authority upon the board of health to let such contracts was invalid and conferred no power upon the board, and therefore that the acceptance of the bid was a matter that did not by law come before the board, and no offense could be committed by bribing a member to vote on such a proposition. That case asserts that, under the terms of the statute, 'it is an essential element of the offense charged that there must be a valid law in existence at the time of the offer to bribe, authorizing and requiring the officer to act. Without this, his action is not subject to influence, and there can be no bribery, within the terms of the statute.' In the case of State v. Ellis, 33 N. J. Law, 103, 97 Am. Dec. 707, the following were the facts: 'Application was made to the common council of Jersey City for the privilege of laying a railroad on a public street, and defendant offered a bribe to one of the councilmen to vote in favor of the application. The defense was made that the council had no power to grant the application; hence there could be no bribery. The court held otherwise. It would seem that the present case is upon all fours with the New Jersey case above mentioned. Furthermore, that case is distinctly approved in the case...