State v. Ames

• Decision Date: 29 January 1904
• Docket Number: 13,715 - (22)
• Parties: STATE v. ALBERT A. AMES
• Court: Minnesota Supreme Court

98 N.W. 190

91 Minn. 365

STATE v. ALBERT A. AMES

Nos. 13,715 - (22)

Supreme Court of Minnesota

January 29, 1904

Defendant was tried and convicted in the district court for Hennepin county before Elliott, J., and a jury on an indictment charging him with having received a bribe while exercising the office of mayor of the city of Minneapolis. From the judgment of conviction, whereby he was sentenced to confinement for a term of six years in the state prison defendant appealed. Reversed.

SYLLABUS

Act Constitutional.

Chapter 151, p. 154, Laws 1899, regulating the manner of drawing jurors in counties having a population of two hundred thousand, is a general law, and is constitutional, and not class legislation.

Challenging Juror.

Under section 7362, G.S. 1894, the court, for good cause, may permit a challenge to be taken after a juror is sworn, and before the jury is completed. The state, having come into possession of new evidence bearing upon the juror's suitability, moved for permission to re-examine a juror upon the question of actual bias. Held, the cause shown was sufficient, and there was no error in the ruling.

Indictment.

An indictment charged that on December 15, 1901, the defendant (mayor of the city) did feloniously receive from (naming certain parties, and others unknown, who were conducting houses of ill repute) the sum of $600, upon the agreement and with the understanding that such persons would be protected from criminal prosecution for the month of December, 1901. Held, the indictment stated one offense; it being inferred that the money was a fund contributed by the persons named pursuant to a joint or common understanding that such contributors should be protected.

Failure of Proof.

The undisputed evidence is that detectives and police officers accepted money from the women specified in the indictment, and others, in amounts ranging from $15 to $25, in consideration of which each person making payment was promised police protection; that the detectives and police officers who received the money were the agents of defendant, and not of those making payments; that there was no joint agreement or understanding between those paying the money; that the $600 which was paid over to defendant by his agent in one sum, after it was paid to him by the women individually, was not a general fund, contributed with the understanding that those participating should be protected. Held, there was a failure of proof to sustain the offense charged.

Nye & Deutsch and Erwin & Mead, for appellant.

The court erred in overruling the defendant's motion to compel the state to elect upon which of the crimes charged in the indictment the state would rely to secure the conviction of defendant. State v. Wood, 13 Minn. 112 (121). The state cannot avoid the force of the rule which requires that a single felony only shall be charged in one count, by charging a single felony only and under that charge attempting to prove two. Womack v. State, 7 Cold. 508; McElroy v. U.S., 164 U.S. 76, 80; Lunn v. State, 44 Tex. 85; Williams v. State, 77 Ala. 53; Stock-well v. State, 27 Oh. St. 563; State v. Hurd, 101 Iowa 391.

The great and overwhelming weight of authority is to the effect that under circumstances such as exist in the present case, each collection and its corresponding agreement was a separate, distinct, substantive offense, and that if each one had been set out in full in the indictment, the indictment would have been bad for duplicity, and that, it having appeared upon the trial that the state expected to offer evidence on and prove each one of the separate collections and agreements, it should have been compelled to elect upon which particular collection and agreement it would seek to charge the defendant. Wallace v. State, 41 Fla. 547, and cases cited; State v. Moore, 86 Minn. 422.

W. B. Douglas, Attorney General, F. H. Boardman, County Attorney, and C. S. Jelley, Assistant County Attorney, for the state.

Evidence is admissible which tends to show motive, criminal intent, guilty knowledge and a scheme or plan embracing two or more crimes, so related to each other that proof of one tends to prove the other. States v. Ames, 90 Minn. 183; U.S. v. Watson (D.C.) 35 F. 358; People v. Gray, 66 Cal. 271; Coleman v. People, 58 N.Y. 555; Com. v. White, 145 Mass. 392; Hall v. State, 71 Tenn. 552; Rafferty v. State, 91 Tenn. 656; Guthrie v. State, 16 Neb. 667.

When averments in an indictment or information as to quantity, quality, kind, value, number, etc., are not descriptive of the identity of the subject matter they are immaterial, and need not be proved strictly as alleged, but it is sufficient if the allegation is substantially proven. 3 Greenleaf, Ev. § 12; Bruguier v. U.S., 1 Dak. 5; Alexander v. State, 99 Ind. 450; Klein v. State, 76 Ind. 333; Todd v. State, 31 Ind. 514; State v. Tisdale, 54 Minn. 105; State v. Andrews, 28 Mo. 17. If it is a fact that the defendant received $600 as a bribe, he was guilty, and he was equally guilty if, as a bribe, he received any less sum than that, his guilt being determined not by the amount he received, but by the fact that he received any amount. The precise sum of money was not essential, nor was the precise sum the essence of the offense. Ferris v. Comstock, 33 Conn. 513; Sage v. Hawley, 16 Conn. 106; Bunting v. Allen, 18 N.J.L. 299; Jansen v. Ostrander, 1 Cow. 670; 22 Enc. Pl. & Pr. 596; McCorkle v. State, 14 Ind. 39; Parsons v. State, 2 Ind. 499; U.S. v. Fish, 24 F. 585.

The indictment charges but one offense and is not bad for duplicity. U.S. v. Scott, 74 F. 213; State v. Newton, 42 Vt. 537; Regina v. Bleasdale, 2 Car. & K. 765; Regina v. Giddins, Car. & M. 634; State v. Nelson, 29 Me. 329; Ben v. State, 22 Ala. 9; Rex v. Benfield, 2 Burrow, 980; Guthrie v. State, supra; Mooney v. State, 8 Ala. 328; State v. Morphin, 37 Mo. 373; Lorton v. State, 7 Mo. 55; Roberts v. State, 14 Ga. 8; State v. Hennessey, 23 Oh. St. 339; Com. v. Sullivan, 104 Mass. 552; Boyce v. Odell Com. Co., 107 F. 58.

But one offense is charged in the indictment, and but one was proved by the evidence. The conviction of the defendant is a complete bar to a prosecution for the receiving of a bribe from either of the women named in the indictment or from either of those who gave money to Gardner for police protection for December, 1901. Lorton v. State, supra; Jackson v. State, 14 Ind. 327; Roberts v. State, supra; Com. v. Sullivan, supra; Com. v. Andrews, 2 Mass. 409; State v. Thurston, 2 McMul. 382; Hoiles v. U.S., 3 MacArthur, 370; 1 Chitty, Cr. L. 462-463; G.S. 1894, § 7311.

OPINION

LEWIS, J.

Defendant was charged with, and convicted of, the crime of receiving a bribe. The charging part of the indictment is set out in full for the purpose of clearness:

"And said Albert A. Ames on the 15th day of December, 1901, at the city of Minneapolis, in the county of Hennepin, in the state of Minnesota, then and there being, and then and there executing and performing the duties and functions of the office of mayor of said city of Minneapolis, did willfully unlawfully, wrongfully, knowingly, feloniously, corruptly and contrary to his duty as such mayor of said city of Minneapolis, receive, have, and obtain from Gladys Barr, Augusta Hayden, Millie Rosell, Bessie Ferris, Sadie Bird, Ethel Ford, and others, whose names are to the grand jury unknown, a certain sum of money, to wit, the sum of six hundred dollars, genuine, lawful, and current money of the United States of America, of the value of six hundred dollars, from the said Gladys Barr, Augusta Hayden, Millie Rosell, Bessie Ferris, Sadie Bird, Ethel Ford, and others, whose true names are to the grand jury unknown, upon the agreement and understanding that his, the said Albert A. Ames' official action and duty as mayor of said city of Minneapolis should be influenced thereby, and upon the agreement and understanding that he, the said Albert A. Ames, as mayor of said city of Minneapolis, would omit to take certain action, and would neglect and violate his official duty as such mayor in the following manner, to wit: That on the said 15th day of December, 1901, and for several months prior thereto, at and within the limits of the city of Minneapolis, in said county of Hennepin, in the state of Minnesota, the said Gladys Barr, Augusta Hayden, Millie Rosell, Bessie Ferris, Sadie Bird and Ethel Ford, whose true names are to the grand jury unknown, then and there being, each for herself, did willfully, unlawfully, and wrongfully keep a house of ill fame, to wit: Gladys Barr, that certain house known and designated as number 404 Second Avenue South, in said city of Minneapolis; Augusta Hayden, that certain house known and designated as number 241 Third Avenue North, in said city of Minneapolis; Millie Rosell, that certain house known and designated as 242 Hennepin avenue, in said city of Minneapolis; Bessie Ferris, that certain house known and designated as number 6 First Avenue South, in said city of Minneapolis; Sadie Bird, that certain house known and designated as number 404 Second Avenue South, in said city of Minneapolis; Ethel Ford, that certain house known and designated as number 126 Second Street South, in said city of Minneapolis; and divers other persons whose names are to the grand jury unknown, but which persons were then and there residing in said city of Minneapolis, and each and all of them were then and there engaged in the business of unlawfully keeping, each for herself, a house of ill fame in said city of Minneapolis, the exact location of such houses and the keeper thereof being to the grand jury unknown, and which houses, and all of those heretofore designated and described, were then and there resorted to for the purposes of prostitution,...