State v. Di Paglia
| Citation | 71 N.W.2d 601,49 A.L.R.2d 1223,247 Iowa 79 |
| Decision Date | 27 July 1955 |
| Docket Number | No. 48577,48577 |
| Parties | , 49 A.L.R.2d 1223 STATE of Iowa, Appellee, v. Floren DI PAGLIA, Appellant. |
| Court | United States State Supreme Court of Iowa |
R. E. Hanke, Des Moines, for appellant.
Dayton Countryman, Atty. Gen., Raphael R. R. Dvorak and George G. West, Asst. Attys. Gen., and Leo J. Tapscott, County Atty., Des Moines, for appellee.
Defendant Di Paglia was indicted for bribery in athletic contest, it being charged he offered money to Benjamin James Bumbry, Jr., with intent to influence him to fix the score in a basketball game.
Defendant knew Drake University at Des Moines, had a basketball game scheduled with Iowa State College for December 22, 1953, and that Bumbry, with whom he was not personally acquainted, was a player on the Drake team. About December 15, 1953, defendant, under the assumed name of Charles Davis, after several days of intensive efforts to contact Bumbry, succeeded in doing so by telephoning him at the place in Des Moines where Bumbry roomed. Bumbry testified defendant, in that conversation, said he would like to have Bumbry play ball for him. Bumbry declined and defendant then said he wanted to talk to Bumbry confidentially. Bumbry walked to a nearby grocery store and there was taken into an automobile by defendant, who identified himself as Charles Davis, and driven slowly around the block with a stop of ten or fifteen minutes.
Defendant 'stated he didn't know how to approach me on the subject.' He then asked, or more. '* * * could you cause Drake to lose by ten points?' Bumbry said he didn't have anything to do with that. Defendant said there was nothing to be afraid of, the big cities were still doing it. He cautioned Bumbry not to tell any one. He then asked Bumbry if he thought Willie Cerf, another member of the Drake basketball team, 'would do anything like that?' He told Bumbry there was some money to be made and asked Bumbry if he didn't like money. He first mentioned $300 and then 'said he knew he could get a thousand dollars, we could split it three ways'. He said, 'Look what I could have at the end of the season, two or three G's.' 'He said if I did take it he would like for me to wait until the end of the season before I spent it.'
Bumbry refused to consider defendant's proposition and reported the matter to his coach and others. The following morning defendant telephoned Bumbry and asked him if he had changed his mind. Bumbry said, 'No, sir.'
There was evidence also defendant inquired of a student Calvin Hicks, whether Bumbry and Cerf had dependents and could use some money, if $500 per game would satisfy them, and did Hicks think they would go along with something like that. Hicks answered in the negative. Defendant 'said he didn't see where there would be anything wrong, the outcome of the game so far as winning or losing wouldn't be jeopardized in any way, just be a matter of shaving a few points.'
As a witness defendant admitted he sought out Bumbry and took the latter into defendant's automobile substantially as told by witnesses for the state and that at times he had used the name of Charles Davis and had used it in locating Bumbry. His story is he told Bumbry he was thinking of making a $200 or $300 bet on the Drake-Iowa State game and merely asked Bumbry if he thought Drake would win, or would win by eight or ten points and that Bumbry was non-committal on the subject.
The jury found defendant guilty and the court adjudged that he be committed to the men's Reformatory at Anamosa for an indeterminate period not to exceed ten years. Defendant has appealed.
I. He asails the validity and sufficiency of the indictment and the validity of the statute, Chapter 254, Laws 55th G.A., now section 739.12, Code of Iowa 1954, I.C.A., which provides:
The indictment states the Polk County Grand Jury 'accuse Floren Di Paglia of Bribery in athletic contest as defined in Chapter 254 of the Laws of the Fifty fifth General Assembly of the State of Iowa, and charge that Floren Di Paglia did offer to give money to Benjamin James Bumbry, Jr. with intent to influence him to fix the score of an amateur basketball game in which the said Benjamin James Bumbry, Jr. expected to participate, to-wit: Drake University versus Iowa State College.'
It charges the offense by using the name given it by the statute (Bribery in athletic contests) and referring to the section of the statute creating such offense, Ch. 254, 55th G.A., and by specifying and describing the act charged as constituting the offense. This is sufficient to comply with section 773.3, Code of Iowa 1954, I.C.A., which refers to the contents of indictments. State v. Leahy, 243 Iowa 959, 965, 54 N.W.2d 447; Meeks v. Lainson, 246 Iowa ----, 71 N.W.2d 446; State v. Keturokis, 224 Iowa 491, 276 N.W. 600. See also other sections of Chapter 773, Code of 1954, I.C.A.
II. Appellant asserts the minutes of the evidence upon which the indictment was found do not set out any evidence 'which would warrant the charge', and contends his demurrer to the indictment should have been sustained for that reason. This is contrary to the facts. The minutes disclose substantial evidence which supports the charge. However, the order overruling the demurrer to the indictment would not have been erroneous had the minutes not contained such evidence. State v. Finnegan 244 Iowa 166, 172, 55 N.W.2d 223, 226, points out:
III. Appellant makes a general assault upon the validity of the statute (now Code section 739.12). He refers to common law definitions of bribery and to statutory crimes involving bribery and corruption which he asserts have in effect codified the common law and have also extended it. He questions the power of the legislature 'to extend bribery to include an entirely new and different class of individuals, acts or omissions.' We are unable to agree with the foregoing reasoning. Generally speaking, there are no common law offenses in Iowa and all crimes are statutory. Estes v. Carter, 10 Iowa 400; State v. Banoch, 193 Iowa 851, 186 N.W. 436.
In creating an offense the legislature may give it a name known to the common law, without further defining it, or the statute may expressly refer to the common law for definition. In such instances the common law definition will be applied. On the other hand, the legislature may define the offense by a particular description of the act or acts constituting it. State v. Flory, 203 Iowt 918, 924, 210 N.W. 961, 964; State v. Loser, 132 Iowa 419, 424, 104 N.W. 337, 338, 339. It is the rule that 'if the statute clearly defines the thing or act which is forbidden, a resort to common-law definitions to add to or detract from the effect of the language of the statute is neither necessary nor permissible.' State v. Clough, 181 Iowa 783, 785, 165 N.W. 59, 60. We have frequently said the legislature may be its own lexicographer and write its own definitions of words and terms. Sandberg Co. v. Iowa State Board, 225 Iowa 103, 107, 278 N.W. 643, 645, 281 N.W. 197; Eysink v. Board of Supervisors, 229 Iowa 1240, 1245, 296 N.W. 376, 378.
In this case the legislature created an offense which it named, 'Bribery in athletic contests.' Clearly it was empowered to do that. It then proceeded to define that offense in detail. Appellant contends the statute is indefinite and uncertain and for that reason violative of the due process clauses of Article 1, section 9 of the Constitution of Iowa, I.C.A. and of the 5th and 14th Amendments to the Constitution of the United States. This contention is not meritorious. The part of the statute involved in this case is not complicated. The only accusation in the indictment was that defendant offered to give money to Bumbry with intent to influence him to fix the score of the game. The court instructed the jury:
'* * * the law applicable to the case on trial, is, that whoever offers to give money to anyone who expects to participate in any amateur game, with the intent to influence the expectant participant to fix the score of the amateur game, shall be punished as by said statute provided.'
One challenging a statute has the burden to overcome the presumption it is constitutional and to negative every reasonable basis upon which it may be sustained. Knorr v. Beardsley, 240 Iowa 828, 38 N.W.2d 236. Appellant has not met this burden. There is no showing the provisions of this statute which are involved in this case, are indefinite or uncertain. On the contrary, such provisions are explicit and the language clear. This statute is much more detailed than was the statute in Glickfield v. State, 203 Md. 400, 101 A.2d 229, in which a contention it was fatally vague and indefinite was overruled and a conviction of attempting to bribe a football...
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...facts in the case as the evidence tends to show such facts to be.' 23A C.J.S. Criminal Law § 1194, p. 495. See also State v. DiPaglia, 247 Iowa 79, 86--87, 71 N.W.2d 601, 605. Since the court did not define something not included within the meaning of price regulating or fixing, but simply ......
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