Reed v. State, 3 Div. 798

• Decision Date: 19 December 1978
• Docket Number: 3 Div. 798
• Parties: Thomas J. REED, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 872

372 So.2d 872

Thomas J. REED, alias v. STATE.

3 Div. 798.

Court of Criminal Appeals of Alabama.

Dec. 19, 1978.

Rehearing Denied Jan. 16, 1979.

George W. Dean, Destin, Fla., for appellant.

William J. Baxley, Atty. Gen., and George W. Royer, Jr., Asst. Atty. Gen., for the State, appellee.

BOOKOUT, Judge.

The appellant was indicted for bribery, convicted of an attempt to commit that offense, and fined $500.

The indictment, in pertinent part, was as follows:

"COUNT I: The Grand Jury of said County charge that, before the finding of this indictment, Thomas J. Reed, alias Tom Reed, and Ronald Williams, alias Ron Williams, did directly or indirectly, wilfully and corruptly offer or promise a thing of value or personal advantage, to-wit: employment as attorney for the proposed Macon County Racing Commission at an annual salary of, to-wit: from $20,000 to $50,000 per year, such Macon County Racing Commission to have been created and established by House Bill 247 of the 1975 Regular Session of the Alabama Legislature, to a member of the Legislature of the State of Alabama, to-wit: Thornton Dudley Perry, State Senator for the 23rd Senatorial District of Alabama during the 1975 Regular Session of the Alabama Legislature, such offer or promise being made to influence the said Perry in the performance of his public or official duties, to-wit: to obtain the act, vote, opinion, decision or judgment of the said Perry as State Senator in support of the said House Bill 247 in the Senate of Alabama during the 1975 Regular Session of the Alabama Legislature, against the peace and dignity of the State of Alabama,

"COUNT II: The Grand Jury of said County further charge that, before the finding of this indictment, Thomas J. Reed, alias Tom Reed, and Ronald Williams, alias Ron Williams, did, directly or indirectly, wilfully and corruptly offer or promise to a member of the Legislature of the State of Alabama, to-wit: Thornton Dudley Perry, State Senator for the 23rd Senatorial District of Alabama during the 1975 Regular Session of the Alabama Legislature, a thing of value or personal advantage, to-wit: that the said Reed would approve, support or vote for proposed amendments to House Bill 247 of the 1975 Regular Session of the Alabama Legislature, which House Bill 247 would have created and established the Macon County Racing Commission and which House Bill 247 with the proposed amendments would provide that the said Reed and the said Perry would each appoint two of the proposed five members of the said Commission, and that the said Reed would then appoint the said Williams as one of the members of the said Commission, and that the said Williams would then approve, support or vote for the employment of the said Perry by the said Commission as attorney for the said Commission at an annual salary of, to-wit: from $20,000 to $50,000 per year, such offer or promise being made to influence the said Perry in the performance of his public or official duties, to-wit: to obtain the act, vote, opinion, decision or judgment of the said Perry as State Senator in support of the said House Bill 247 in the Senate of Alabama during the 1975 Regular Session of the Alabama Legislature, against the peace and dignity of the State of Alabama."

The offense charged is spelled out in Title 14, § 73, Code of Ala.1940:

"Any person who shall, directly or indirectly, offer, give, or promise any money, or thing of value, testimonial, privilege, or personal advantage, to any executive or judicial officer or member of the legislature to influence him in the performance of any of his public or official duties, shall be guilty of bribery, and, upon conviction, shall be punished by imprisonment in the penitentiary for not less than two nor more than ten years."

The issue in this case has been concisely stated in the appellant's reply brief:

"There is one and only one basic issue raised by this appeal and that issue must not be clouded or confused by such issues as the admissibility of a co-defendant's statement, of venue, of the trial court's discretion in setting a trial docket, and so forth as argued at such length in the State's brief.

"The issue here is simply whether the crime of bribery as defined and punished in the Alabama Constitution and the Alabama laws includes an 'attempt to bribe,' punishable by imprisonment. Since offers or promises to give a thing of value are attempts in themselves to give a bribe, there is no basis in law or in logic for a conviction of an 'attempt to attempt to bribe.' "

Without elaborating on the testimony of each witness, it is sufficient to observe that ample evidence was submitted by the State which, if believed by the jury, would have supported a conviction for bribery as defined in Title 14, § 73, supra. That is, the appellant Offered or Promised a thing of value or personal advantage to a member of the legislature to influence him in the performance of his public or official duty. The evidence was conflicting, and the jury obviously was not convinced that the crime of bribery had actually been consummated, only that an attempt to do so had occurred.

It has long been held that conflicting evidence presents a jury question not subject to review provided the State's evidence establishes a prima facie case. The weight to be given such evidence and the credibility of the witnesses are likewise questions reserved for the jury. Higginbotham v. State, Ala.Cr.App., 346 So.2d 525 (1977); May v. State, Ala.Cr.App., 335 So.2d 242 (1976).

The appellant contends that he could...