People v. Wettengel
Decision Date | 16 December 1935 |
Docket Number | 13696. |
Citation | 58 P.2d 279,98 Colo. 193 |
Parties | PEOPLE v. WETTENGEL et al. |
Court | Colorado Supreme Court |
Error to District Court, City and County of Denver; Otto Bock Judge.
Earl Wettengel and James P. Blackwell were indicted for conspiracy to commit bribery, their motions to quash the indictment were sustained, and the People bring error.
Affirmed.
Max D Melville and Thomas K. Younge, both of Denver, for the people.
A. L Betke and George A. Crowder, both of Denver, for defendants.
December 16, 1934, a grand jury indicted Earl Wettengel, district attorney of the Second judicial district, James P. Blackwell and Lafayette B. Utter, for, as the indictment is captioned, 'Conspiracy to Commit Bribery.' Utter has not been apprehended nor has he appeared. Wettengel and Blackwell filed like motions to quash which, February 5, 1935, were sustained. The principal ground urged by the motions was that no facts sufficient to constitute the crime of conspiracy to commit bribery are shown by the indictment. It reads:
known, did unlawfully and feloniously agree, conspire and co-operate with each other to do, and to aid each other in the doing of, an unlawful and felonious act, to wit, the crime of bribery; which crime of bribery was thereafter to be committed by said defendants and each of them in the City and County of Denver, State of Colorado by the said defendants Lafayette B. Utter and James P. Blackwell and each of them, and the said other persons unknown to the aforesaid Grand Jurors, directly and indirectly and unlawfully, giving sums of money and other bribes, presents and rewards and other things of value to the said Earl Wettengel, who would receive and accept the same, with intent to unlawfully induce and influence said Earl Wettengel to execute the powers in him vested, and to perform the duties of him required, with partiality and favor, and otherwise than is required by law, in this, to wit, the said sums of money and other bribes, presents and rewards and other things of value were to be paid and delivered by the said Lafayette B. Utter and James P. Blackwell and each of them to the said Earl Wettengel, and were to be received and accepted by him, to induce and influence him, the said Earl Wettengel, to permit the said Lafayette B. Utter and James P. Blackwell and each of them to unlawfully own, install, keep, exhibit, maintain, conduct, use and operate gambling rooms, houses, devices, slot machines and other gambling games, instruments, devices, apparatus and paraphernalia to win and gain money and other property by gambling in the said City and County of Denver, State of Colorado, without molestation, interference, seizure, destruction or prosecution by him, the said Earl Wettengel, or by his agents, deputies or employes, or by other law enforcement agencies or officers of the City and County of Denver; contrary to the form of the statute in such cases made and provided, and against the peace and provided, People of the State of Colorado.'
In our view it is plain that the indictment attempts to do what its caption would indicate its drawers had in mind; that is, to charge that Blackwell, Utter, and Wettengel conspired with each other that thereafter Blackwell and Utter should give, and Wettengel should receive from them, things of value, to the end that Wettengel should permit Blackwell and Utter to maintain gambling devices without molestation from his office. The question is: Do these allegations, if true, constitute the crime of conspiracy to commit bribery? The answer, urged upon us by counsel for the district attorney, and which we conclude is a correct statement of the law, is that there is not, in the law, any such crime as conspiracy to commit bribery where the conspiracy is charged to have included both the prospective giver and the prospective receiver.
The bribery statute, C.L.1921, § 6781, requires that to constitute the crime of bribery the act of two persons is essential, that of him who gives and of him who receives; their minds must concur. Newman v. People, 23 Colo. 300, 47 P. 278. The statute, section 1781, R.S.U.S. (18 U.S. C.A. § 199), under consideration in United States v. Dietrich (C.C.) 126 F. 664, 666, was to the same import. There it was charged that Dietrich, a United States Senator, had conspired with a constituent that the Senator should receive and the constituent should pay a sum of money for the 'use of the influence incident to his official station.' There, as here, the defendant argued that under such circumstances conspiracy could not be charged. We shall not endeavor to elaborate upon the doctrine; it is well set forth in the Dietrich Case, 126 F. 664, at page 666, in these words:
'The fact that section 1781 makes the act of agreeing to receive, and also that of agreeing to give, a bribe, under the circumstances and for the purpose described in this indictment, a substantive offense, even though the bribe be not actually received or given, brings this case fully within the rule so stated.'
See, also Chadwick v. United States (C.C.A.) 141 F. 225; United States v. New York Cent. & H. R. R. Co. (C.C.) 146 F. 298; Gebardi v. United States, 287 U.S. 112, 53 S.Ct. 35, 77 L.Ed. 206, 84 A.L.R. 370; United States v. Sager (C.C.A.) 49 F. (2d) 725; People v. Keyes (Cal.Sup.) 284 P. 1105. In the Gebardi Case the man transporting and the woman transported were charged with conspiracy to violate the Mann Act (18 U.S. C.A. § 397 et seq.). The court said, 287 U.S. 112, at page 121, 53 S.Ct. 35, 37, 77 L.Ed. 206, 84 A.L.R. 370:
And so here. The preliminary agreement said to have existed between Wettengel and Blackwell and Utter is not an indictable conspiracy, for the substantive offense, bribery, itself required the co-operative action of those charged below to have been conspirators.
We think the Colorado cases which impel Mr. Chief Justice BUTLER to dissent are distinguishable.
Let the judgment be affirmed.
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