State v. Durnam
| Decision Date | 01 July 1898 |
| Docket Number | 11,085 - (18) |
| Citation | 75 N.W. 1127,73 Minn. 150 |
| Parties | STATE v. GEORGE A. DURNAM |
| Court | Minnesota Supreme Court |
Defendant was convicted in the district court for Hennepin county of the crime of asking for a bribe to influence his vote and action as an alderman of the city of Minneapolis. From an order, Elliott, J., denying defendant's motion for a new trial, he appealed. Affirmed.
On the hearing of the motion for a new trial defendant read affidavits to the effect that, while the jury were deliberating, certain jurors left the room and went upon the floor above in the court house. The state read affidavits showing that directly above the jury room there is a sleeping room, bath room and closets for the use of the jury connected with the main jury room by a stairway, and that the jury was at all times kept in these apartments.
On the trial, Halvor K. Halvorson, a witness for the state testified that on the day before the commission of the offense charged in the indictment, he met defendant at a certain saloon, went into a back room with him, where defendant made the statement that, if witness would put up $10,000, his firm could have the contract. On the motion for a new trial, defendant read the affidavit of one C. A Warner, that he was in the same saloon at the time in question, saw the parties there, that they remained at the bar about 15 minutes, and then went out, and that they never entered a back room in the saloon, or any room.
Challenge to Panel of Petit Jury -- Judge's Certificate -- Meaning of Record.
The record, in connection with the trial judge's certificate, construed as meaning the defendant's challenge to the panel of petit jurors was to be deemed denied by the state, and submitted on the same evidence as a similar challenge on the trial of a prior similar case.
Challenge to Jurors for Actual Bias -- Waiver of Objection by Defendant.
The objection, if any, to the form of the challenges of the state to individual jurors on the ground of actual bias was waived by defendant's joining issue on it without objection, and submitting it upon evidence to the decision of the court acting as trior.
Court as Trior -- Decision Final.
When the court acts in the place of triors, its decision is final.
Asking a Bribe -- G.S. 1894, § 6349 -- Meeting of Minds or Understanding between the Parties Unnecessary.
To constitute the crime of asking for a bribe by a public officer "with the understanding or agreement that his vote," etc., "shall be influenced thereby" (G.S. 1894, § 6349), it is not necessary that the party solicited for the bribe shall consent to give it, or that there shall be any meeting of minds or mutual understanding or agreement between him and the party asking for a bribe. It is sufficient if the latter is ready and willing to enter into a corrupt agreement or understanding that his vote, etc., shall be influenced by the bribe.
Incompetency of Juror -- Discovery after Verdict -- New Trial -- Discretion of Court -- Alien.
Even if the incompetency of a juror is not discovered until after verdict, such incompetency will not per se constitute ground for a new trial. A motion for a new trial on such a ground is addressed to the judicial discretion of the trial court, which should take into consideration the nature of the objection to the juror, what diligence the party exercised to ascertain the fact in due time, and the other circumstances of the case. Rule applied where a juror was incompetent because of alienage.
Proceedings of City Council Admissible in Evidence.
Held, that in this case the proceedings before the city council (of which the defendant was a member) were admissible for the purpose of showing that the matter upon which the bribe was alleged to have been asked for was pending before that body, and in what way or manner it was pending.
Indictment for Asking Bribe of One Partner -- Conversation with Another Partner Admissible in Evidence.
The indictment charged defendant with asking one Richards for a bribe with the understanding and agreement that his vote and official action should be thereby influenced in favor of the acceptance of a bid which the firm of Halvorson, Richards & Co. had submitted to the city council for the construction of a reservoir by the city. Held that, upon the facts, a conversation on the same subject which defendant had, on the day previous, with Halvorson, was admissible for the purpose of illustrating and explaining the conversation on the next day between defendant and Richards, when the crime charged is alleged to have been committed, the latter being but a continuation of the conversation with Halvorson, and the two being parts of the same transaction.
Indictment for Asking Bribe of One Partner -- Member of City Council -- Influence with Fellow Members.
The asking for a bribe by a member of the city council, with the understanding or agreement that he would corruptly use it to bribe or influence the votes or official action of his colleagues, constitutes a crime under G.S. 1894, § 6349. The influence of the member of a public body over the official action of his colleagues is itself a part of his own official action and duty.
Indictment for Asking Bribe of One Partner -- Giving and Taking Bribe -- Accomplice.
One who gives or offers a bribe is not, in law, an accomplice of the one who asks for it. Asking for a bribe and offering or giving a bribe are separate and distinct offenses.
Indictment for Asking Bribe of One Partner -- Verdict Sustained by Evidence.
Evidence held sufficient to justify the verdict.
Indictment for Asking Bribe of One Partner -- Sentence not Cruel or Unusual.
A sentence that the defendant be confined in state's prison for six years and six months is neither "cruel or unusual" nor excessive.
Harrison & Noyes, for appellant.
G.S. 1894, § 6349, under which defendant was indicted, defines the offense as asking for a bribe "upon the understanding and agreement" that the officer's vote shall be influenced thereby. The only reasonable construction of this statute is that the officer must ask a bribe from some person, and that the minds of the officer asking and the person asked must meet upon the proposition that the officer shall violate his official duty. The agreement or understanding need not go so far that the person asked assents to the request to contribute, but the minds of the two parties must meet upon the proposition that the officer shall be influenced to violate his official duty. As to definitions of the words "agreement" and "understanding," see Winslow v. Dakota Lumber Co., 32 Minn. 237; 27 Am. & Eng. Enc. 445; Dillon v. Anderson, 43 N.Y. 231; Barkow v. Sanger, 47 Wis. 500; Century Dict. tit. "Agreement"; 2 Am. & Eng. Enc. 16; 1 Chitty, Cont. 2; 1 Addison, Cont. 38; Hartford v. Jackson, 24 Conn. 514; Brown v. New York, 44 N.Y. 79; Lyman v. Robinson, 14 Allen, 242, 254.
As to defendant's challenge to the panel of jurors, we have a plain and well-defined practice provided by statute for the making and trial of these challenges; but in the case at bar none of these challenges were excepted to as required by G.S. 1894, § 7356. Hence no issue was ever raised as to their sufficiency, and they stood as admitted, and no evidence could be received. It is therefore contended that the only authority the court had was to declare the challenge true. See Morrison v. Lovejoy, 6 Minn. 224 (319); State v. Lautenschlager, 22 Minn. 514.
The state's challenge to individual jurors on the ground of "actual bias" was insufficient. The specific cause of bias should have been stated. State v. Vaughan, 23 Nev. 103; People v. Thiede, 11 Utah 241.
The juror A. W. Armitage, who was foreman of the jury, was not a citizen. A jury, as contemplated by our constitution, means twelve qualified jurors. State v. Everett, 14 Minn. 330 (439); People v. O'Neil, 48 Cal. 257; Bell v. State, 44 Ala. 393; Jackson v. State, 6 Blackf. 461; Bowles v. State, 5 Sneed, 361; Proffatt, Jury Trial, § 113; Perteet v. People, 70 Ill. 171; Cancemi v. People, 18 N.Y. 128. An alien cannot act as a juror. Guykowski v. People, 2 Ill. 476; Hill v. People, 16 Mich. 351; State v. Cole, 17 Wis. 695; Bennet v. State, 24 Wis. 57. Defendant, having no knowledge or suspicion that Armitage was an alien, did not waive his right to exclude this juror from the jury. In capital cases and grave crimes, it is generally held that defendant cannot waive his right and consent to a trial by a less number than twelve jurors. Proffatt, Jury Trial, § 113; Cancemi v. People, supra; People v. O'Neil, supra; Bell v. State, supra; Jackson v. State, supra; Bowles v. State, supra.
Defendant's right to raise any question of disqualification for actual bias or implied bias is not waived by failure to examine the juror; and, if it is unknown to defendant or his attorneys, it is good ground for a new trial. Bennet v. State, supra; Williams v. McGrade, 18 Minn. 65 (82).
Evidence as to the conversation between Halvorson and defendant on the day before the offense alleged in the indictment was in-admissible, as the only thing it could tend to prove was that defendant had committed another and different crime. State v. Masteller, 45 Minn. 128; People v. Sharp, 107 N.Y. 427; Coleman v. People. 55 N.Y. 81; People v. Gibbs, 93 N.Y. 470; People v. Corbin, 56 N.Y. 363; Com. v. Jackson, 132 Mass. 16; Berghoff v. State, 25 Neb. 213; Barton v. State, 18 Ohio 221; State v. Lepage, 57 N.H. 245; Hoberg v. State, 3 Minn. 181 (262); State v. Hoyt, 13 Minn. 125 (132); People v. Jacks, 76 Mich. 218; 2 Rice, Ev. 157; Com. v. Campbell, 155 Mass. 537; Com. v. Saulsbury, 152 Pa. St. 554; People v. O'Brien, 96 Cal. 171; Nixon v. State, 31 Tex. Cr. App. 205; Clark v. State, 47 N.J.L. 556.
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