State v. Campbell

• Decision Date: 12 May 1906
• Docket Number: 14,688
• Citation: 73 Kan. 688,85 P. 784
• Parties: THE STATE OF KANSAS v. FRANK M. CAMPBELL
• Court: Kansas Supreme Court

85 P. 784

73 Kan. 688

THE STATE OF KANSAS v. FRANK M. CAMPBELL

No. 14,688

Supreme Court of Kansas

May 12, 1906

Decided January, 1906.

Appeal from Wyandotte district court; J. MCCABE MOORE, judge.

STATEMENT.

AT the June term of the district court of Wyandotte county appellant was convicted of the crime of accepting a bribe to influence his official action as a member of the board of education of Kansas City. He was sentenced to confinement in the state penitentiary for a period of not less than one or more than seven years. From the judgment he appeals.

The second count of the indictment upon which he was tried charges that appellant, while a member of the board of education of Kansas City, from the sixth ward of that city and while acting in his capacity as a member of such board of education, and acting under and by virtue of his office as a member thereof, did make, cause and permit to be made a contract with one G. E. Gilhaus, whereby it was agreed that Gilhaus was to clean out a school building and remove the mud, filth and water therefrom, and should receive as compensation therefor the sum of thirty-five dollars per day for the time occupied in performing the work. The count continued:

"And on or about the day of August, 1903, in the county of Wyandotte, state of Kansas, the said Frank M. Campbell did then and there unlawfully, feloniously, corruptly and wickedly receive and accept from the said G. E. Gilhaus a large sum of money, to wit, the sum of four hundred and twelve dollars ($ 412), to the value of four hundred and twelve dollars ($ 412), as a reward for having given the vote, opinion, judgment and action of the said Frank M Campbell in favor of letting and causing to be let to the said G. E. Gilhaus the said contract, and as a reward and bribe for having wrongfully and unlawfully permitted and caused to be let to the said G. E. Gilhaus the said contract so as aforesaid set forth."

When the Kaw river flood of 1903 subsided the lower floors of the school buildings in the Armourdale district were filled with mud and filth to the depth of eighteen inches. Appellant was a member of the board of education, consisting of six members. At a meeting of the board the matter of arranging for the cleaning of these buildings was referred to the superintendent of buildings, one Biscomb, who was not a member of the board. Afterward Biscomb consulted and acted with appellant and C. M. Bowles, another member of the board in reference to the work and in letting the contract. Appellant lived in the flooded district, and by consent of Biscomb and Bowles took the lead in making arrangements for having the work done. He saw G. E. Gilhaus, who was engaged, under the style of the Gilhaus Manufacturing Company, in doing similar work, and arranged with him to pump out these buildings, at a price agreed upon of thirty-five dollars per day for whatever time was required to do the work. Appellant introduced Gilhaus to Biscomb the day that the work of pumping was begun, and after the buildings were cleaned took the bill of the Gilhaus Manufacturing Company for the work to Biscomb to have the latter certify to it. With some changes the bill was certified by Biscomb, and, on August 3, allowed by the board, and a warrant was drawn for $ 988.75, payable to the company. It is not shown what date the warrant was received by Gilhaus, but it appears to have been paid some days after its date. On the 11th of August Gilhaus gave to appellant the check of the Gilhaus Manufacturing Company for $ 412, and on the same day appellant cashed it at the bank upon which it was drawn.

It appeared from the testimony of one witness that some time after the work at the school buildings was completed Gilhaus removed the mud and filth from a building in the flooded district belonging to the witness, and that the price agreed upon was $ 7.45 per day.

It was claimed by appellant that the personal transaction with Gilhaus had no connection with the contract for cleaning the school buildings; that the $ 412 was in payment for a certain steam valve sold by appellant to Gilhaus after the work in the school buildings had been begun. He claimed that he had, some five years before then, invented the steam valve, and had applied for a patent on it, but the patent had never been granted through delays, and that he sold to Gilhaus the valve and the right to use and manufacture it.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--Right to Speedy Trial--Delay Occasioned by an Appeal. The terms of court which intervene pending an appeal by the state in a criminal action are not to be counted in determining whether a person under indictment and held to bail is entitled to be discharged under section 221 of the code of criminal procedure (Gen. Stat. 1901, § 5666) because not brought to trial before the end of the third term of court after indictment found or information filed.

2. CRIMINAL LAW-- Confessions--Statements before a Grand Jury. Statements and declarations by a defendant in a criminal action in denial of guilt while a witness before a grand jury are not confessions within the rule requiring them first to be shown to have been made voluntarily before they are competent evidence against him.

3. CRIMINAL LAW-- Testimony in Response to a Subpoena Not Involuntary--Waiver of Privilege. The fact that his testimony before the grand jury was in obedience to a subpoena will not render such statements or declarations involuntary. His rights are protected by his privilege to refuse to answer when the answer tends to incriminate him; and by the failure to exercise his privilege in this respect his statements and declarations become voluntary.

4. CRIMINAL LAW-- Admissions--Voluntary Statements of an Exculpatory Nature. Voluntary statements of fact made by a defendant in a criminal action, which do not tend to establish his guilt but which are exculpatory in their nature, are competent evidence against him as admissions of a party.

5. CRIMINAL LAW-- Grand Jurors--Disclosure of Evidence Given before Them. The language of section 5535 of the General Statutes of 1901, providing that "no grand juror shall disclose any evidence given before the grand jury, nor the name of any witness who appeared before them, except when lawfully required to testify as a witness in relation thereto," is not limited by the provisions of section 5533 of the General Statutes of 1901, permitting such evidence in certain cases.

6. CRIMINAL LAW-- When Proceedings of Grand Jury May be Proved. The secrecy imposed by the common law and statutes upon the proceedings before a grand jury will not prevent the public or an individual from proving by members of the grand jury in a court of justice what passed before the grand jury, when, after the purpose of secrecy has been effected, such disclosure becomes necessary in the furtherance of justice or for the protection of public or individual rights.

7. STATUTORY CONSTRUCTION--Statute Adopted from Another State. The rule that where a statute is adopted from another state the adoption carries with it the construction placed thereon by the courts of that state is a general rule, to which there are exceptions. Where the statute is not peculiar to the state from which it was adopted, but other states have substantially the same statute, which their courts have construed differently, and when the construction placed upon it by the courts of the state from which it was adopted is opposed to the weight of reason and authority, or against the general policy of our laws, such construction will not be followed.

8. CRIMINAL LAW--Judgment Holding Indictment Sufficient--Law of the Case. A former judgment of this court holding an indictment sufficient in substance is the law of the case. All questions in this case raised by the motion in arrest of judgment are controlled by the former decision in The State v. Campbell, 70 Kan. 899, 79 P. 1133.

9. BRIBERY--Member of Board of Education--Letting of Contracts. The board of education of a city of the first class is charged with the care and custody of school buildings. A member of such board who accepts money as a bribe to influence his opinion, judgment and action in favor of letting or causing to be let a contract for cleaning school buildings is guilty of bribery, under section 2212 of the General Statutes of 1901, notwithstanding the fact that the board had by resolution referred the matter of cleaning such buildings to the superintendent of buildings, who was an employee but not a member of the board, where it appeared that the member charged with the offense let the contract with the approval of the superintendent of buildings.

10. BRIBERY-- Proof of Intent with Which Money Was Received. When the gravamen of the charge is the receiving of money as a bribe to influence the opinion, judgment and action of defendant as a member of such board in causing such contract to be let, testimony showing that the contractor who paid defendant the bribe soon afterward took a similar contract with an individual at a much lower price is material and competent evidence of the intent with which the money was received.

11. BRIBERY-- Check Cashed by Defendant Competent to Prove Receipt of Money. In such a case, where defendant is shown to have cashed a check payable to his order for the amount he is charged with receiving, drawn by the person from whom it is charged he received the bribe, the check itself is competent evidence against him to establish the receipt of the money.

12. CRIMINAL LAW--Calling Witnesses--Names Indorsed on Indictment. In a criminal action the state is not obliged to place upon the stand every witness whose name is indorsed upon the indictment.

13. CRIMINAL LAW-- Defendant May...