State v. Harries, 7273

• Decision Date: 19 August 1950
• Docket Number: No. 7273,7273
• Citation: 118 Utah 260,221 P.2d 605
• Parties: STATE, v. HARRIES.
• Court: Utah Supreme Court

Page 605

221 P.2d 605

118 Utah 260

STATE, v. HARRIES.

No. 7273.

Supreme Court of Utah.

Aug. 19, 1950.

Arthur Woolley, Ogden, for appellant.

Brigham E. Roberts, Dist. Atty., Salt Lake City, Clinton D. Vernon, Atty. Gen., A. John Brennan, Asst. Atty. Gen., for respondent.

LATIMER, Justice.

The defendant, Robert S. Harries, who was Chief of the Enforcement Division of the Utah Liquor Control Commission, was charged by indictment with the crime of receiving a bribe. He was found guilty as charged and appeals from the judgment of conviction. His assignments of error or statement of points will be referred to later.

Section 103-26-4, U.C.A.1943, defines the offense as follows: 'Every executive officer, or person elected or appointed to an executive office, who asks, receives or agrees to receive any bribe, upon any agreement or understanding that his vote, opinion or action upon any matter then pending or which may be brought before him in his official capacity, shall be influenced thereby, is guilty of felony.'

Omitting the formal parts of the indictment, the elements of the crime were alleged in the following language: 'That the said Robert S. Harries, on or about the 1st day of December, 1946, at the County of Salt Lake, State of Utah, he being then and there an executive officer and a person appointed to an executive office, to-wit: the Chief of the Enforcement Division of the Utah Liquor Control Commission, received a bribe, to-wit, money, from Cyrus Lack upon an agreement or understanding that his action upon a matter which might be brought before him in his official capacity would be influenced thereby, to-wit: upon an agreement and understanding that he, the said Robert S. Harries, would permit and allow Robert Osanna to conduct and operate the Railroad Club at Helper, Utah, in violation of the Liquor Control Act, that is, to permit and allow said Robert Osanna to maintain a building and rooms where alcoholic beverages were to be sold, kept, bartered, and stored in violation of the Liquor Control Act, and where persons would resort for the drinking of alcoholic beverages.'

The evidence covers 814 typewritten pages, so it is impracticable to do more than refer to the important details. The general plan or scheme under which the defendant and one Cyrus V. Lack operated will be pictured from the testimony given by Lack and Ossana and the evidence which the trial judge concluded was necessary to corroborate their testimony must be found in the testimony given by other witnesses.

Mr. Lack testified that he and a partner acquired the Brigham Street Pharmacy, located in Salt Lake City, Utah, in the year 1945 and operated it up to and including March 2, 1948; that at the time of the purchase, the partnership commenced to operate a liquor package agency for the Utah State Liquor Commission, but some 90 days later he took over the operations of the agency personally and continued to operate it up to and including the time it was closed by action of the Commission; that in 1946, during the months of April and May, he had a number of conversations with the defendant Harries concerning the latter's candidacy for sheriff of Salt Lake County; that in one of the first conversations, in the presence of a group of friends, Harries stated that he was running for sheriff with good chances to be elected and that the people who were willing to help him would not lose as he would be either sheriff of Salt Lake County or Chief Enforcement officer of the Liquor Commission, and in either event he could repay them for their efforts; that during this period Lack had a number of conversations with the defendant relative to operating a scheme which, in substance, was that Lack would sell whiskey to selected club owners operating in the state at a price considerably above the Commission's price and Harries would affored them protection from arrest; that the profits would be divided on an equal basis between Harries and Lack, after deducting the costs of delivery; that it was understood that before Lack sold any whiskey to any club, he would crear with Harries and the latter would be notified before delivery was made; that it was further understood that Harries would inform Lack if it became necessary to raid any of the clubs and that Lack could in turn notify the operator of the club to be raided.

Continuing, Lack further testified that in June of 1946 he became acquainted with Robert Ossana who was desirous of opening a club in Helper, Utah; that Ossana requested his assistance in obtaining whiskey to sell over the bar of his club; that he informed Ossana it would be a couple of days before he could definitely commit himself; that he then contacted Harries, telling him the substance of this conversation with Ossana; that it was agreed between them that Ossana was to be given the privilege of buying the whiskey for sale in Helper, provided he paid a bonus of $15.00 per case; that Harries was to notify Lack if any raids were to be made by agents of the Liquor Commission so that he in turn could notify Ossana; that Lack informed Ossana of the substance of his conversation with Harries; that he sold Ossana 30 to 35 cases of whiskey and charged him the bonus of $15.00 per case, half of which was turned over to Harries; that in either November or December, 1946, Ossana made another purchase of 30 to 35 cases of whiskey and the same bonus was exacted and the same division made with Harries; that as Lack was paying Harries his portion of the money received from the November sale, Mr. Young, an employee of the pharmacy, came in and observed the money being divided; that in the latter part of 1946, Harries informed Lack that an employee of the Liquor Commission was going to Helper, Utah, to do some undercover work, and that Lack was to inform Ossana the man would be attempting to make purchases and would be dressed in a hunting suit; that he conveyed this information to Ossana but the plan did not work out as anticipated as the agent succeeded in making a purchase from Ossana's club; that he told Harries of the incident and Harries became 'raving mad' as Ossana's club was the only place in Helper where the agent was able to make a purchase of whiskey; that in 1947 Ossana purchased additional whiskey and Lack called one Ulysses Hatsis to come up and assist in the loading; that while the whiskey was being loaded Harries came in and stood in the front part of the store; that Lack notified Hatsis that he would be paid by Harries for his services and so Hatsis walked up to Harries, who paid him $20.00 for his help; that during the month of September, 1947, Harries informed Lack the Commission was receiving a lot of threatening letters from Carbon County and the people in that vicinity believed the Commission was giving Ossana preference; that Harries directed him to notify Ossana that a raid was to take place, that Ossana would have to be shut down for a short while, and that he would have to take a find of $50.00 to $100.00.

The evidence which has been related deals principally with the plan or scheme and the passing of money between Ossana, Lack and Harries. The remaining portions of Lack's testimony portray the method of operation used by him and Harries in connection with the other clubs and in connection with the financial transactions between them.

Lack's testimony on these other transactions is substantially as follows: That in 1946 he had a conversation with the manager of the Fort Douglas Golf Club in which the sale of whiskey was discussed and he informed the manager that whiskey could be purchased through him in case lots, if a $15.00 per case bonus was paid; that whiskey was sold to the club and the bonus divided with Harries; that in the same year he had a conversation with a representative of the Elks' Club in Ogden about the sale and purchase of liquor at a premium price of $10.00 per case; that sales were made and the money received from the sales was divided between the two; that in connection with the sale to the Elks' Club in Ogden it was necessary to employ a driver, and a Mr. E. L. Jensen delivered the first load of whiskey to Ogden, for which he was paid the sum of $50.00; that payment to Jensen for his services was made in the presence of Mr. Harries; that in 1946, Lack became acquainted with Mr.Lee Williams, who operated the Country Club at Price, Utah; that it was concluded between Harries and Lack to permit Williams to purchase whiskey; that in August of 1947 Harries informed Lack that an agent by the name of Heath was being sent to Helper, Utah, to purchase drinks from a nonparticipating club (Diamanti's) and that Ossana and Williams should be alerted that the agent would be there; that in spite of the warning, the agent slipped in and purchased liquor from both Williams and Ossana; that the agent reported the purchase to Harries who, in turn, notified Lack that the boys had been careless in permitting the purchase, but that the agent would be fired for his activities; that in 1947 he met Tony Nickas from Price, Utah, and he, Nickas and Harries had a conversation in the back of the drug store concerning the purchase of whiskey; that Nickas made two payments to Lack, one of $200.00 and one of $100.00, which were turned over to Harries; that Harries and Nickas, in Lack's presence, discussed the operation of the proposed club and Harries cautioned Nickas to be careful and not to become too ambitious; that in all instances when sales of whiskey were made, Harries was paid his 50 percent interest; and that some of the money paid to Harries was delivered by leaving sealed envelopes with the employees in the pharmacy with instructions to deliver the envelopes to Harries.

Mr. Ossana testified that he was a resident of Helper, Utah; that he had heard some talk about being able to purchase liquor at the Brigham Street Pharmacy; that he drove to Salt Lake City in June of 1946 where he introduced himself to...