Spivey v. State

• Decision Date: 13 June 1940
• Docket Number: A-9668.
• Citation: 104 P.2d 263,69 Okla.Crim. 397
• Parties: SPIVEY v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

104 P.2d 263

69 Okla.Crim. 397

SPIVEY v. STATE.

No. A-9668.

Court of Criminal Appeals of Oklahoma

June 13, 1940

Syllabus by the Court.

1. At common-law an indictment is invalid and may be quashed where it is found and returned by a grand jury not legally constituted, or where there was no legal and competent evidence before the grand jury upon which it was based. Under the statute the motion to quash an indictment takes the place of a plea in abatement at common law. Sec. 2, 12 Okl.St.Ann § 2.

2. The question of the competency or incompetency of an accomplice witness before a grand jury is not a question that can be raised on a motion to quash the indictment, as the fact that a witness is an accomplice goes only to his credibility.

3. An indictment, charging in language of the statute that named members of City Board of Education agreed to receive and received from named person a bribe of $6,000 upon agreement that their action as such officers would be influenced by such bribe in voting to accept a bid of $200,103.50 for royalty in certain real estate, held sufficient.

4. Member of a City "Board of Education" held an "executive officer" within bribery statute since an officer who is neither a judicial nor a legislative officer necessarily belongs to the executive department of the government, and is an "executive" or administrative officer.

5. Evidence of other offenses is admissible when it tends directly to establish the particular crime, and such evidence is usually competent to prove the particular crime when it tends to establish motive, intent, a common scheme or plan embracing the commission of two or more crimes, so related to each other that proof of one tends to establish the others.

6. Where several persons have united for an illegal purpose, any act done by one of them, or any of them, or any declaration made touching the prosecution of the common purpose or design, being regarded as the act of all, is admissible against all or any of the conspirators.

7. All who participate in commission of crime as principals, aiders and abetters, or accessories before the fact are "accomplices" whose evidence requires corroboration.

8. Evidence of receipt of bribes on occasions other than that charged is admissible in the prosecution of a member of a Board of Education for receiving bribes, such acts being a part of a general scheme to obtain money corruptly through the abuse of a public trust.

9. In bribery case, one who initiates transaction and takes part in commission of offense is an "accomplice" as a matter of law.

10. Assignments of error not supported in the brief by the citation of authority and argument, and presenting no fundamental error, will not be reviewed.

11. In prosecution of member of City Board of Education for receiving a bribe to corruptly influence his official action evidence reviewed and held sufficient to support the verdict and judgment of conviction.

Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.

Ed. W Spivey was convicted of accepting a bribe, and he appeals.

Judgment affirmed.

Since under the provisions of the Code of Criminal Procedure a motion to quash and set aside an indictment takes the place of a plea in abatement at common law, and in view of statute providing that common law, as modified by constitutional and statutory law, judicial decisions, and condition and wants of the people, shall remain in force in aid of general statutes, there is applicable to a motion to quash and set aside an indictment the common-law rule that an indictment is invalid and may be quashed where it is found and returned by a grand jury not legally constituted, or where there was no legal and competent evidence before the

The question of the competency or incompetency of an accomplice witness before a grand jury is not a question that can be raised on motion to quash the indictment, since the fact that the witness is an accomplice goes only to his credibility.

In this case the indictment upon which appellant, Ed. W. Spivey, was tried and convicted and sentenced to imprisonment in the state penitentiary for the term of ten years, in the district court in and for Oklahoma County, omitting caption, reads as follows:

"At the regular January, 1938, Term of the District Court of the Thirteenth Judicial District of the State of Oklahoma, held in and for Oklahoma County, in the State of Oklahoma, at the City of Oklahoma City, the Grand Jury of said County, twelve good and lawful men, then and there duly and legally empanelled, sworn and charged, according to law, to diligently inquire into, and true presentment make, of all public offenses against said State of Oklahoma committed or triable within said County, upon their said oaths, in the name and by the authority of said State of Oklahoma, do present and find that in said County of Oklahoma, in said State of Oklahoma, on the 17th day of September in the year of our Lord, One Thousand Nine Hundred and Thirty Six, and anterior to the presentment hereof, but within three years, the said R. H. Price and Ed W. Spivey being then and there members of The Board of Education of the City of Oklahoma City of the State of Oklahoma, duly elected, qualified and acting as such, and the said Frank Wilkins being then and there the attorney for The Board of Education of the City of Oklahoma City of the State of Oklahoma, duly appointed, qualified and acting as such, and each and all of said defendants above named being then and there charged by law to perform the duties of his office with fidelity and not to knowingly receive, directly or indirectly, any money or other valuable thing for the performance or non-performance of any act or duty pertaining to his said office, did conjointly and while confederating and acting together, unlawfully, willfully, purposely, corruptly and feloniously commit the offense of Bribery in the manner and form as follows, to-wit: That the Board of Education of the City of Oklahoma City of the State of Oklahoma, being convened in special session on the 14th day of September, 1936, for the transaction of business pertaining to said School District, and a quorum of said Board of Education being present at said meeting, bids were received in response to an advertisement theretofore made and published by said Board for the sale of the undivided interest of the said Board of Education in and to certain oil and gas in and under certain tracts of land described in said advertisement, and that upon receipt of said bids by said Board of Education a motion was made by Ed W. Spivey, which was duly seconded and adopted, that said bids be referred to the oil and gas committee of said Board of Education and to the attorney for said Board for recommendation, the said Ed W. Spivey being then and there a member of said oil and gas committee, and thereafter, on the 15th day of September, 1936, The Board of Education of the City of Oklahoma City of the State of Oklahoma being convened in adjourned session and a quorum of said Board being present, the report of said oil and gas committee was received and read, and among other matters and recommendations contained in said report was the following: 'This committee is of the further opinion that a sale of the royalty involved in Northeast High School would be to the best interest of the School District, and it is the recommendation of this committee that the high offer of S. LeRoy Estes be accepted and that all other proposals be rejected, and that all checks submitted by the various bidders be returned to them immediately;' that the bid of S. LeRoy Estes thus recommended by said oil and gas committee for acceptance by the Board was in the sum of $20,103.00 to include all runs from the property to date of bid, and that the property covered by the bid and offer of the said S. LeRoy Estes is described as follows; to-wit: Lots 7-9-10-39-41-43-45 and 47, Block 5; Lots 1-3-5-7-9-11-13-15-17-19-21-23-25-27-29-31-33-35-37-39-41-43-45 and 47, Block 6; Lots 2-4-6-8-10-12-14 and 16, Blocks 5, 6 and 7, Elliott Place Addition to Oklahoma City, Oklahoma, same being located in the Northwest Quarter (NW 1/4) of Section 23 Township 12 North Range 3 West; that upon the reading of the report of said oil and gas committee, a motion was duly made and seconded by Ed W. Spivey that the recommendation of the oil and gas committee be approved as read, which motion was adopted by the Board; that thereafter, and on the 17th day of September, 1936, the said S. LeRoy Estes and Roy M. Smith met the defendant, R. H. Price and the defendant Frank Wilkins, at the office of the said Frank Wilkins in the Terminal Building in Oklahoma City, Oklahoma, and then and there the said S. LeRoy Estes paid to the said Frank Wilkins the sum of $6,000.00 in cash, lawful money of the United States of America, which said sum of money, he the said Frank Wilkins, did then and there receive and accept for the use and benefit of himself, Ed W. Spivey and R. H. Price, and that the same was then and there paid to and accepted by the said Frank Wilkins as a gift and gratuity in consideration of the official services of the defendants, Ed W. Spivey and R. H. Price, and their acts, influences and recommendations as members of the said Board of Education and of the oil and gas committee of the said Board of Education about and concerning the bid of the said S. LeRoy Estes for the oil and gas interest of said Board of Education in and under the real estate hereinabove described, and as a gift and gratuity in consideration of the acts and services of the said Frank Wilkins as attorney for said Board of Education, and for his official services, acts and influence while acting with the said oil and gas committee of said Board of Education

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