State v. Dulaney

• Decision Date: 29 June 1908
• Citation: 112 S.W. 158,87 Ark. 17
• Parties: STATE v. DULANEY
• Court: Arkansas Supreme Court

112 S.W. 158

87 Ark. 17

STATE v. DULANEY

Supreme Court of Arkansas

June 29, 1908

Appeal from Pulaski Circuit Court, First Division; Robert J. Lea Judge; trial court held to have erred.

STATEMENT BY THE COURT.

A. D DuLaney was the representative of Little River County in the General Assembly of 1905. He was indicted by the grand jury of Pulaski County on a charge of being an accessory to the crime of bribery, committed by one A. J. Kizer giving the said DuLaney the sum of $ 200 to corruptly influence his vote on a bill pending in the House of Representatives, entitled "An act requiring long distance telephone companies to permit physical connection with local telephone companies and for other purposes." On the trial the defendant was acquitted.

The issues in the case were these: The State introduced evidence tending to prove that Kizer was interested in the defeat of the bill named in the indictment, and that King and Ritchie were interested in its passage; that DuLaney undertook to manage the bill in behalf of King and Ritchie on the floor of the House, and that he voted for a suspension of the rules in order that the bill might be considered; that the rules were suspended, and the bill read a second time and referred to the Railroad Committee, of which DuLaney was chairman; that after supporting the bill for some time, he, in a veiled way made a demand for money, which was refused, and that soon thereafter he announced to King that he could no longer continue to handle the bill on the floor of the House, as he was deluged with communications from his constituency opposing the bill, and that he thereafter opposed the bill and voted against it; that, after the bill was defeated, he received from Kizer a draft for $ 200, transmitted to him through Powell, a friend of Kizer's, manager of a telephone system and likewise interested with Kizer in the defeat of the bill in question; that the letter transmitting said draft indicated upon its face that the amount was in payment of some real estate, and it was shown that the property was four lots in the town of Wilton; that said lots were worth $ 12.50 to $ 15 each, or a total of $ 50 or $ 60; that they were owned by a brother of defendant, and that no deed had appeared of record for the same conveying them to Kizer, and that Kizer made admissions of having paid said sum to the defendant on account of said bill.

On the other hand, the defendant introduced evidence tending to prove that he was at all times opposed to the bill, and merely voted for a suspension of the rules as a courtesy to the friends of the bill in order that it might be considered on its merits; that his opposition was known at the time he voted for this suspension of the rules; that he had made no proposition, veiled or otherwise, to King or Ritchie or any one else for money to support the bill, and that he did not receive any money for his opposition to it; that the $ 200 received from Kizer was a business transaction not related to any of his official duties, and that the lots sold to Kizer were worth the price that he paid, or more; that the deed to them had been executed by his brother and delivered to Kizer, and that he was representing his brother in this sale to Kizer; and also introduced evidence tending to show that two of the principal witnesses for the State were not men of good reputation for truth and morality (on the other hand the State in rebuttal offered testimony that they were men of good reputation in these respects); he also introduced testimony contradicting different witnesses for the State upon many material matters.

The State proved by T. L. Cox that he represented various corporations and corporate interests in connection with the General Assembly of 1905; that he kept his clients advised of legislation pending and bills introduced and bills passed, and that he used money on bills for the purpose of influencing legislation thereupon, and represented corporate interests in that capacity; that he was acquainted, with DuLaney, who was chairman of the Railroad Committee in the House. The State offered to prove by said witness that he had had DuLaney appointed chairman of the Railroad Committee; "that DuLaney then came to him, and they had a meeting in his room in which DuLaney wanted to see whether arrangements could be made about the amount of money he could get on various matters that would come before the committee in which Cox was interested for the various corporations. That they finally entered into this agreement: That the amount would not be fixed except on the railroad. In that they agreed upon $ 1,000, and that was paid to him. That thereupon an agreement, his general agreement. was that where such other matters and bills that came before that committee in which Cox was interested, or any corporation he represented was interested, Dulaney should take money on them as a bribe for doing his will--what was wanted done by Cox. That he did take it in pursuance of that. That he took money on some other measures in pursuance of this general agreement. That Cox was interested in this telephone bill. That money was put up to defeat the bill."

The court stated that he would not admit this testimony unless the State could show there was an agreement concerning the particular bill. The prosecuting attorney then stated more fully his offer as follows: "We cannot prove by Cox that on this particular bill he gave money to DuLaney, but Cox explains that by the fact that he was out of the city at the time this bill came up, and that he was not here at the time it was pending in the House. We cannot show that this particular bill was ever mentioned in any conversation had between Cox and the defendant, other than it was understood that the defendant should look after all bills in which Cox was interested. This agreement and understanding was had at the beginning of the session of 1905 and before this telephone bill was introduced in the Senate.

(By the court): "Can you show that the defendant knew that Cox was interested in the defeat of this telephone bill--Senate Bill No. 215?"

(By Lewis Rhoton, Prosecuting Attorney): "No, sir, we cannot show that. We can only show the general agreement and understanding as I have before stated."

The court sustained the objection to this testimony, and the State excepted, and it is the ruling of the court thereupon that the State desires a review by this court.

William F. Kirby, Atty. Gen. and Dan'l Taylor, for appellant.

While one crime cannot be established by proof of the commission of another, yet when other crimes are so connected with the one charged that they tend to explain it or throw light upon the motive, intent, design, or good faith of defendant in the commission of the crime charged, then such evidence is admissible. 156 F. 897; 133 Id. 495; 127 Id. 536; 133 Id. 849; Wharton's Crim. Ev. sec. 38 et seq.; 72 Ark. 586; 75 Id. 427; 49 Id. 449; 28 Tex.App. 377; 138 Mass. 493; 88 Iowa 27; 66 Cal. 271; 78 Ala. 12. Under the allegations of the indictment and the circumstances of the case, it was competent for the State to prove other acts of bribery. 16 Neb. 667. They are admissible to show intent or motive. 157 Ind. 57; 79 S.W. 1123; 136 Mo. 293; 96 N.W. 330.

W. L. Terry and Murphy, Coleman & Lewis, for appellee.

On his direct examination appellee denied that any one ever offered him any money in connection with the bill. It was to contradict his answers to questions asked on cross examination about collateral matters and supposed independent crimes that Cox's testimony was offered; it was therefore properly rejected. 1 Greenleaf on Ev. (16 Ed.) P. 578; 72 Ark. 410; 76 Id. 302; 5? Id. 303; 53 Id. 387; 60 Id. 450; 38 S.W. 331; 61 A. 65; 53 N.Y. 164; 13 Am. Rep. 492; 57 S.W. 80; 33 Id. 336; 41 Vt. 80; Wig. on Ev. § 981. An agreement on the part of one to give and of another to receive does not constitute a conspiracy or unlawful combination. 156 F. 897. Before one crime is admissible in evidence on a trial of a charge for another, the two must have existed in the mind of the defendant; they must have had some connection in his mind. 72 Pa.St. 63. Where the object is to prove the commission of one crime by evidence of the commission of others, more than a mere similarity must appear as a prerequisite to admissibility. 75 Ark. 427; 2 Id. 234; 39 Id. 279; 37 Id. 265; 72 Id. 586; 168 N.Y. 264; 177 Id. 434; 126 Cal. 351; 52 Ark. 309.

OPINION

HILL, C. J., (after stating the facts).

Where an appeal on behalf of the State is desired, the statute provides that the prosecuting attorney shall pray the appeal, and the clerk shall make out a transcript of the record and transmit it to the Attorney General. If the Attorney General, on inspecting the record, is satisfied that error has been committed to the prejudice of the State, and upon which it is important to the correct and uniform administration of the criminal law that the Supreme Court should decide, he may lodge the transcript in the clerk's office of the Supreme Court and take the appeal. But a judgment in favor of a defendant which operates as a bar to further prosecution shall not be reversed by the Supreme Court, even though error was committed in the trial to the prejudice of the State. Sections 2602, 2603, 2604, Kirby's Digest. This is a method afforded the law officers of the State to take the opinion of the Supreme Court upon questions which they consider important to the correct and uniform administration of the criminal law.

The court is met with an objection to a consideration of the other questions involved by the insistence that the indictment cannot be sustained, as it charges DuLaney with being an accessory to a bribery of himself, the bribery committed by Kizer, instead...