State v. Emory, 6195
| Decision Date | 05 June 1935 |
| Docket Number | 6195 |
| Citation | 55 Idaho 649,46 P.2d 67 |
| Parties | STATE, Respondent, v. IRA EMORY, Appellant |
| Court | Idaho Supreme Court |
CRIMINAL LAW-BRIBERY-POLICE OFFICER-INDICTMENT, SUFFICIENCY OF - EVIDENCE OF OTHER OFFENSES, WHEN ADMISSIBLE-ACCOMPLICES TESTIMONY OF-ASSIGNMENT OF ERRORS, SUFFICIENCY OF.
1. Police officer held an "executive officer" within bribery statute, since an officer who is neither a judicial nor a legislative officer necessarily belongs to the executive department of the Government, and is an "executive" or "administrative" officer whether it be state, county or precinct office, charged with the detail of carrying the laws into effect and securing their due observance (I. C. A., sec. 17-502).
2. Indictment charging in language of statute that police officer asked for, agreed to receive and received from named person a bribe of $15 at specified time upon agreement that his action as such officer would be influenced by such bribe and upon agreement that such officer would protect the giver of the bribe in illegal operation of her hotel business as disorderly house, held sufficient (I. C. A., secs. 17-502, 17-2104, 19-1317).
3. Prosecution of police officer under statute relating to asking or receiving bribe by "executive officer" held proper, though he might have been prosecuted under statute relating to bribery of "public officers," and conviction of defendant under either statute would be a bar to subsequent prosecution for same offense under the other statute (I. C. A., secs. 17-502, 17-1019).
4. Assignment that court erred in denying defendant's request to advise jury to acquit him held not reviewable.
5. Instruction that evidence of other bribes had been admitted to show design and system, on theory that if defendant had practiced general system of asking for and receiving bribes it would be more probable that he had asked for and received bribe from person as charged in indictment, held not prejudicial, where other instructions clearly stated all the elements necessary to be found before verdict could be returned against defendant (I. C. A., sec. 17-502).
6. In prosecution for asking for and receiving bribe, admission of other evidence concerning asking for and receiving of bribes held not error, where such evidence was restricted to proof of general design or system (I. C. A., sec. 17-502).
7. Evidence of other offenses is admissible when it tends directly to establish the particular crime, and such evidence is usually com- petent to prove the particular crime when it tends to establish motive, intent, absence of mistake or accident, a common scheme or plan embracing commission of two or more crimes so related to each other that proof of one tends to establish the others.
8. Any pertinent fact which throws light upon defendant's guilt or innocence of crime for which he is on trial is admissible, and such probative fact is not to be excluded merely because it may also prove or tend to prove that defendant has committed another crime.
9. Persons who had given other bribes to defendant police officer and person who had given the bribe in respect of which defendant was being prosecuted held not "accomplices" of defendant within rule requiring corroboration of testimony of accomplices (I. C. A., sec. 17-502).
10. Bribe giver is not an "accomplice" with bribe taker, since each is guilty of a distinct and separate offense (I. C. A., sec. 17-502).
11. Whether defendant police officer had asked for and received bribe to permit illegal operation of hotel as disorderly house, held for jury (I. C. A., secs. 17-502, 17-2104).
12. In prosecution of police officer for asking for and receiving bribe, parol proof that defendant was a police officer held proper (I. C. A., sec. 17-502).
13. Errors not properly assigned by appellant will not be considered on appeal.
APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles F. Koelsch, Judge.
Conviction of bribery. Affirmed.
Judgment affirmed. Petition for rehearing denied.
W. H. Langroise and James F. Ailshie, Jr., for Appellant.
An indictment charging a person as an "executive officer" within the meaning of sec. 17-502, I. C. A., with asking, agreeing to receive and receiving a bribe, when such person is not an "executive officer" within the meaning of such section, does not charge the commission of a public offense and the indictment should be dismissed. (State v. Wharfield, 41 Idaho 14, 236 P. 862.)
A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence. (Sec. 19-2017, I. C. A.)
In order for a conviction to be upheld there must be some corroborating evidence on the material fact or circumstance which, standing alone and independent of the evidence of the accomplice, legitimately tends to connect defendant with the commission of the offense. (State v. Knudtson, 11 Idaho 524, 83 P. 226; State v. Bond, 12 Idaho 424, 86 P. 43; State v. Whisler, 32 Idaho 520, 185 P. 845; State v. Sims, 35 Idaho 505, 206 P. 1045.)
Bert H. Miller, Attorney General, and Ariel L. Crowley, Assistant Attorney General, for Respondent.
Where a general statute includes an offense, a subsequent specific statute covering that offense creates an exception to the general statute and no prosecution may be had for that offense under the general statute thereafter.
A retrial of appellant under the present indictment and section 17-1019 will not constitute double jeopardy. (Sec. 19-1317, I. C. A.; State v. Bowker, 40 Idaho 74, 231 P. 706; State v. Webb, 6 Idaho 428, 55 P. 892.)
Homer E. Martin and Willis C. Moffatt, for Respondent.
A person giving a bribe, or agreeing to give a bribe, is not an accomplice of a police officer receiving, or agreeing to receive, a bribe. (State v. Wappenstein, 67 Wash. 502, 121 P. 989; State v. Morrison, 175 Wash. 656, 27 P.2d 1065; People v. Bunkers, 2 Cal.App. 197, 84 P. 364.)
Evidence may be introduced to show transactions similar to that charged in indictment.
BUDGE, J. Givens, C. J., Morgan, J., and Rice, D. J., sitting in place of Ailshie, J., disqualified, concur. HOLDEN, J., Dissenting in part.
An indictment was found and filed against appellant charging him with asking, agreeing to receive, and receiving a bribe from one Rose Sage in the following language:
"That the said IRA EMORY of Boise, Ada County, Idaho, between the dates of August 1, 1932 and January 15, 1933, in the City of Boise, Ada County, Idaho, then and there being an executive officer, namely, a regularly appointed, qualified and acting police officer of the City of Boise, Ada County, Idaho, aforesaid, did then and there wilfully, unlawfully, corruptly and feloniously ask, agree to receive and receive of Rose Sage a bribe, to-wit: $ 15.00 lawful money of the United States on or about September 1, 1932, upon agreement and understanding that the said Ira Emory's action as such officer would be influenced by such bribe, and upon an agreement and understanding that he, the said Ira Emory, would protect the said Rose Sage in the illegal operation of her hotel business in violation of Section 17-2104 of the Idaho Code Annotated, 1932."
To this indictment appellant entered his plea that he was not guilty. Upon a trial had, appellant was convicted of the offense charged in the indictment and thereupon was sentenced to a term of imprisonment of not less than two years nor more than five years, from which judgment this appeal is prosecuted.
Eight errors are assigned, upon which appellant relies for a reversal of the judgment. The first assignment is predicated upon the action of the court in overruling appellant's objections, made prior to the offer of any proof on behalf of the state, to the introduction of any evidence, it being contended that the court was without jurisdiction in that the indictment did not state a public offense, it being urged that appellant, a police officer of the city of Boise, was not an executive officer within the meaning of I. C. A., sec. 17-502, under which section, it is contended, appellant was indicted. An officer who is neither a judicial nor legislative officer necessarily belongs to the executive department of the Government, and is an executive or administrative officer, whether it be state, county or precinct office. (Sheely v. People, 54 Colo. 136, 129 P. 201; Davis v. State, 70 Tex. Crim. 524, 158 S.W. 288.) Executive officers are charged with the detail of carrying the laws into effect and securing their due observance. A police officer is an executive officer within the meaning of I. C. A., sec. 17-502. (People v. Markham, 64 Cal. 157, 30 P. 620, 49 Am. Rep. 700; People v. Powell, 50 Cal.App. 436, 195 P. 456; State v. Gardner, 88 Minn. 130, 92 N.W. 529.) The indictment substantially follows the language of the statute (I. C. A., sec. 17-502), and is a sufficient compliance with the provisions of I. C. A., sec. 19-1317, which provides that words used in a statute to define a public offense need not be strictly pursued; but other words conveying the same meaning may be used. The indictment stated a public offense under I. C. A., sec. 17-502.
It is contended that appellant was indicted under the provisions of I. C. A., sec. 17-502, while he should have been indicted under the provisions of I. C. A., sec. 17-1019. A careful examination of secs. 17-502 and 17-1019, supra discloses that these two se...
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