State v. Emmanuel

• Citation: 259 P.2d 845,42 Wn.2d 799
• Decision Date: 02 July 1953
• Docket Number: No. 32241,32241
• Parties: STATE, v. EMMANUEL.
• Court: United States State Supreme Court of Washington

Page 799

42 Wn.2d 799

259 P.2d 845

STATE, v. EMMANUEL.

No. 32241.

Supreme Court of Washington, en Banc.

July 2, 1953.

Rehearing Denied Sept. 10, 1953.

Don G. Abel, Chehalis, and Lee Olwell, Rummens, Griffin & Short, and Paul R. Cressman, Seattle, for appellant.

John Panesko, Pros. Atty., Chehalis, and Alfred McBee, Sp. Asst. Atty. Gen., for respondent.

DONWORTH, Justice.

The defendant was charged by information, in three counts, with the crime of bribery in violation of RCW 9.18.020, cf. Rem.Rev.Stat. § 2321. The jury returned a verdict of guilty on all three counts. He then moved for a new trial and the motion was denied. From the judgment and sentence pronounced against him on the verdict defendant has appealed.

The prosecuting witness, J. H. England, was engaged in the logging and timber business in Winlock, Washington, During the course of his business he purchased two tracts of timber from the state of Washington. The purchase of the first tract was made on May 20, 1941, for a consideration of $5,000 and was evidenced by timber bill of sale No. 3332. The second tract was purchased on April 25, 1945, for $7,700 and was evidenced by timber bill of sale No. 3707.

As provided by statute RCW 79.12.120, cf. Rem.Rev.Stat. § 7797-33, each bill of sale required that the cutting and removal of the timber be completed within five years of the date of purchase. If this were not done, the timber would revert to the state unless, in the judgment of the commissioner of public lands, the purchaser had shown good faith in attempting to remove the timber in which case the statute authorized the commissioner to grant an extension for any period not exceeding ten years.

Mr. England had secured four successive one-year extensions with respect to the first tract. He had removed the timber from about twenty acres during this period but the remaining sixty acres had not been touched. The last extension which was to expire on May 20, 1950, was accompanied by a letter, dated April 25, 1949, signed on behalf of the commissioner by appellant as secretary. It advised Mr. England that the land office would grant him no further extensions on that tract. The time for removing the timber from the second tract was to expire April 25, 1950.

In late August or early September, 1949, it became apparent to Mr. England that he would not be able to remove the timber on either tract before the respective deadlines. He therefore made a trip to Olympia for the purpose of seeing the commissioner and discussing the possibility of securing a further extension on the first tract and an original extension on the second tract. The commissioner was out of town so Mr. England asked, 'Who is the next man in charge?' He was directed to see appellant who was a clerk in the land office and secretary to the board of land commissioners.

Mr. England then went into appellant's private office and they talked for an hour and a half or two hours. This was the first time they had ever met. Mr. England's version of their discussion was as follows:

'A. Well, the substance of the conversation was that we saw we couldn't get that timber off and that I went up there to see what could be done towards getting a further extension.

'Q. And when you told him what you wanted, what did he say? A. Well, he didn't tell me I couldn't have it, nor he didn't tell me that I could, but he did tell me--that I told him that there must be something that could be done to fix it, and he told me that considering politics that it cost money to elect a Commissioner, and that the campaign hadn't been fully cleared up, and that a contribution might be warmly accepted, and I told him that if that would help my case any, I was willing to go along with it.

'Q. At that conversation did he give you any figure relative to the status of the campaign funds? A. Well, he said it was in the neighborhood of $8,000 in the hole, and it had come in slow.

'Q. All right, and then after you told him that if it would do your case any good, you were willing to contribute, did you discuss any specific amount of money you were to contribute? A. I asked him what he though would be about right and he didn't say, and I said, 'How would $500.00 do.' and he said, 'Well, that will be all right for a starter.'

'Q. And what did you say? A. I said that sure, if that was going to help my business, I would just as soon throw in five hundred bucks.

'Q. Now then, at that meeting--how long did that meeting last, between you and Mr. Emmanuel? A. I would say between an hour and a half, and possibly two hours.

'Q. Did you discuss anything else besides the matter of these extensions? A. Oh, yes.

'Q. What else was discussed? A. Well, we talked about some timber land that we had in California and we was desirous of putting it on the market and we hadn't been able to do it; that is, successfully. And I thought it might be a good scheme if he was interested, which he told me he was--I figured it might be a good deal to enlist his services. I wasn't thinking too much about the sale of the California timber as I was about having a friend in the right spot.

'Q. All right, in what connection were you going to enlist his services on this California timber matter? What was he to do? A. Oh, well, he was to sell it.

'Q. What, if anything, did he say to you at that time relative to whether or not he was a person who could sell it? A. Well, he told me he had a broker's license and he also said that there was numerous people came in there in the office looking for timber, which, of course, I could readily appreciate. And we finally wound up by me telling him I would be glad to have him handle it and I would be glad to pay him a commission.

'Q. Did you come to any terms, at that time, about the commission or how it was to be handled? A. Well, the terms, the agreement that we made at that time was that he was to sell it for so much money and we was to pay him the usual 5 per cent commission.

'Q. And how much money, or what price did you place on this California timber at that time? A. $350,000.

'Q. How much timber was there down there, Mr. England? A. Well, that is debatable--fifty-one 40's, and there was in the neighborhood of between 80 and 100 million feet.

'Q. What, if anything, was said at that time about reducing the agreement between you for the sale of this California timber to writing? A. Well, we agreed that I would give him an option on it and that simmered down--we also agreed at that time about the money on this other deal, this $500.00 contribution. Of course, that ostensibly was a political contribution, but we both of us knew what it was for.

'Mr. Griffin: I move the latter part of the answer be stricken and the jury instructed to disregard it.

'The Court: It will be stricken, that last statement, and the jury will disregard it.

'Q. Did you make any arrangements at that time with Mr. Emmanuel to see him subsequently? A. Yes, I did.

'Q. What arrangements did you make? A. Well, the arrangement was that when we got this document fixed up, why he was to--no, wait a minute, I am talking too fast. The arrangement I made at that time, he was to come down and pick up the $500,000 and at that time we made the arrangement that we was to make an option on this timber.

'Q. All right, let's not go so fast. You did make an arrangement that he was to come down to see you? A. Yes.

'Q. And did he subsequently come down and see you at Winlock? A. Yes, he came down and picked up the $500.00.

'Q. All right, now where did he see you, where in Winlock? A. At my house.

'Q. And was that the first time he had been down there? A. That was the first time he had been there.

'Q. About what time of the day did he come down? A. Oh, it was in the evening, I would say it was about dark or after.

'Q. And he saw you at your house? A. That is right.

'Q. Was anybody else present when you and he were there? A. Nobody in the room.

'Q. Now then, what happened when he came down to see you there at Winlock the first time? A. Well, I knew what night he was coming and I had made arrangements and I had the cash for him, and when he came I gave it to him, and we subsequently talked about this option, and I told him we would soon have it ready. Then later he came down and picked it up.

'Q. Now then, what conversation--I want you to tell me as best you can the conversation that you had with Mr. Emmanuel at the time he came down there that first time about the $500.00. What conversation did you have with him, what did he say, and what did you say, to the best of your recollection? A. That is pretty hard to pick up, that far away, but I can give the gist of the conversation.

'Q. I want the gist of the conversation. A. And that was that he asked me if I had the money and I told him I had, and I handed it to him. One or the other of us remarked that money was pretty hard to identify. That was about the gist of the conversation on that.'

Appellant's testimony regarding his first meeting with Mr. England was similar to the latter's testimony except that appellant testified that, after discussing at some length the proposed sale of the timber located near Ukiah, California, Mr. England volunteered to make a contribution to the commissioner's compaign fund. Appellant testified:

'After we got through discussing it, he said, 'You know, I have tried to catch up with Mr. Taylor, I have always felt very friendly towards him, and I would like to make a political contribution to his campaign. I know it is over, but he must have a deficit,' and I said, 'Yes, he does have,' and I said, 'That is very kind of you to think of making a contribution to his campaign. I know that lots of people do that; it being a political setup, it is a common practice.' So he said, 'The next time you are down our way, when you come down to pick this up, I would like to make that contribution.' I said, 'All right.' This was about the first part of October, and a few...