State v. La Flame

• Decision Date: 14 May 1915
• Citation: 30 N.D. 489,152 N.W. 810
• Parties: STATE v. LA FLAME.
• Court: North Dakota Supreme Court

30 N.D. 489

152 N.W. 810

STATE

v.LA FLAME.

Supreme Court of North Dakota.

May 14, 1915.

Syllabus by the Court.

Under section 10107, Comp. Laws 1913, for the purposes of enforcement of the prohibition law, a deputy sheriff is an executive officer of the state.

Payment of money to a deputy sheriff to procure immunity from future arrest for violation of the prohibition law constitutes giving a bribe, a felony.

The information did not charge the money to have been given with a corrupt intent, although it charged it to have been willfully, unlawfully, and feloniously given. Held the equivalent of an allegation that the money was given with corrupt intent.

The crime of giving a bribe to an executive officer of the state was complete when money was feloniously paid to influence future official conduct with reference to a possible future violation of law. It is not necessary that the law be violated and the officer desist from arresting, as the crime is complete without the happening of such contingencies.

Instructions are complained of because the word “corrupt” was not used in defining the intent with which the money was paid the officer. The instructions are held sufficient.

Where the evidence is not before the Supreme Court, and instructions may or may not be erroneous, dependent upon whether within or without the scope of the proof, they will be deemed sufficient.

Appeal from District Court, Divide County; Leighton, Judge.

Joe La Flame was convicted of bribery, and appeals. Affirmed.

George Cudhie, of East Scobey, Mont., and C. E. Brace, of Crosby, for appellant. George P. Homnes, State's Atty., of Crosby, and Henry J. Linde, Atty. Gen., for the State.

GOSS, J.

Defendant is charged with giving a bribe “to an executive officer of this state,” one Henderson, “deputy sheriff,” with intent to influence unlawfully “the said Henderson as deputy sheriff to protect the said Joseph La Flame against arrest, and to refrain from arresting him, said Joseph La Flame, * * * for selling intoxicating liquors as a beverage in violation of the laws of North Dakota, the said La Flame then and there knowing that the said Henderson was then and there a duly appointed, qualified, and acting deputy sheriff of said county, in said state.” The error alleged comes to this court on appeal from a judgment of conviction rendered pursuant to verdict and after overruling of a demurrer to the information. Defendant contends:

“That a deputy sheriff is not an executive officer of the state; he being, in fact, not an officer, but merely the deputy or agent of an officer, the sheriff; * * * that in contemplation of law the sheriff and his deputies are but one officer; and that an attempt to influence the acts of the deputy are, in law, attempts to enfluence the acts of the sheriff himself, hence an attempt to bribe a deputy is an attempt to bribe the sheriff, and must be so pleaded.”

And appellant cites Wilson v. Russell, 4 Dak. 376, 31 N. W. 645, and Summerville v. Sorrenson, 23 N. D. 460, 136 N. W. 938, 42 L. R. A. (N. S.) 877, holding that, to be valid, the acts of the deputy must be done in the name of the officer of whom he is a deputy.

[1][2] It is unnecessary to pass upon what phases the case might present independent of section 10107, C. L. 1913. It is there provided that:

“It shall be the duty of every sheriff, deputy sheriff, constable, mayor, marshal, police judge and police officer of any city or town having notice or knowledge of any violations of the provisions of this chapter to notify the state's attorney of the fact. * * * If any such officer shall fail to comply with the provisions of this section, he shall upon conviction be fined * * * and such conviction shall be a forfeiture of the office held by such person. * * * For a failure or neglect of official duty in the enforcement of this chapter, any of the city or county officers herein referred to may be removed by civil action.”

The bribery charged consists in influencing by use of money a deputy sheriff to refrain from arresting a violator of our prohibition law. Section 10107 declares a deputy sheriff to be an officer clothed with an official duty as such to enforce that particular law and subject to criminal prosecution, as well as removal from office, for failure or neglect to obey that statute. Charged with the duty, he possessed power to act as an officer and deputy sheriff with respect to such particular duty enjoined. All other questions are incidental or collateral. It is immaterial that a deputy must make his official return in the name of the office and the officer for whom he is deputy. Under this statute concerning this matter he is an officer of the state, with duties devolving upon him under the law, and occupies an official, status. Bribery can be committed by unlawfully influencing his official action.

[3] The next ground of demurrer is that the information does not allege that the acts charged were done corruptly. It is charged that defendant did all said acts “willfully, unlawfully, and feloniously,” and did offer and give a bribe with an intent to influence official conduct, and to procure thereby his immunity from arrest for crime. Bribery is charged in the words of the statute. Section 9303, C. L. 1913. It is true that to constitute a bribe as defined by section 10362, C. L. 1913, the money must be given or offered with a corrupt intent; and “corruptly” is also defined by section 10359. The statutes have a common-law origin, though the penalty has been increased by statute. California has almost identical statutes. As the same contention here made was advanced in People v. Seeley, 137 Cal. 13, 69 Pac. 693, the following from that opinion is authority:

“It is claimed by defendant that the information does not charge an offense, for the reason that it does not allege that the agreement was made with corrupt intent. The information follows the language of the statute, and is sufficient. It states that defendant unlawfully and feloniously asked and agreed to receive $200 upon the agreement that his vote, opinion, and action upon the matter of accepting a school building should be influenced thereby. The agreement to unlawfully and feloniously receive the money for the purpose of influencing his vote is equivalent, in the meaning of the statute, to corruptly agreeing to receive it for the purpose of influencing his vote. If his vote should be feloniously influenced by money, it would be corruptly influenced.”

Under State v. Climie, 12 N. D. 33, 94 N. W. 574:

“An information is sufficient which sets out every ingredient of the offense defined by statute and in the language of the statute.”

And...