State v. Laflame

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

152 N.W. 810

30 N.D. 489

STATE OF NORTH DAKOTA v. JOE LAFLAME

Supreme Court of North Dakota

May 14, 1915

Appeal from the District Court of Divide County, Leighton, J Affirmed.

Affirmed.

Geo Cudhie and C. E. Brace, for appellant.

The law does not impose any duty on a deputy sheriff; it does not recognize him as an officer within himself. 9 Am. & Eng. Enc. Law, 369; Coltrain v. McCain, 14 N. C. (3 Dev. L.) 308, 24 Am. Dec. 256.

A deputy sheriff is not a state officer within the meaning of the Constitution. Russell v. Lawton, 14 Wis. 203, 80 Am. Dec. 769; State ex rel. Walker v. Bus, 135 Mo 325, 33 L.R.A. 616, 36 S.W. 636; N.D. Const. § 173; Wilson v. Russell, 4 Dakota 376, 31 N.W. 645; Summerville v. Sorrenson, 23 N.D. 460, 42 L.R.A. (N.S.) 877, 136 N.W. 938; Ditch v. Edwards, 26 Am. Dec. 414 and note, 2 Ill. 127.

A public officer is one who, by implication or express authority, has the right to exercise some portion of the sovereign power in making, executing, or administering the laws. Mechem, Pub. Off. §§ 1-9; State ex rel. Clyatt v. Hocker, 39 Fla. 477, 63 Am. St. Rep. 179, 22 So. 721; Eliason v. Coleman, 86 N.C. 235; High, Extr. Legal Rem. § 626; 4 Standard Enc. Proc. 569; State v. Pritchard, 107 N.C. 921, 12 S.E. 50; Sharp v. United States, 71 C.C.A. 258, 138 F. 878; People v. Emmons, 7 Cal.App. 685, 95 P. 1032; Higgins v. State, 157 Ind. 57, 60 N.E. 685; Com. v. Root, 96 Ky. 533, 29 S.W. 351; People v. Hammond, 132 Mich. 422, 93 N.W. 1084; State v. Graham, 96 Mo. 120, 8 S.W. 911.

Where corrupt intent is made an ingredient of the offense by statute, it is necessary, not only to charge, but to prove it. People v. Bilitzke, 174 Mich. 329, 140 N.W. 590; Comp. Laws 1913, §§ 9303, 10362.

The information must allege the particular facts necessary to bring the case within the intent and meaning of the statute. State v. Howard, 66 Minn. 309, 34 L.R.A. 178, 61 Am. St. Rep. 403, 68 N.W. 1096; 5 Cyc. 1042, 1044; 3 Enc. Pl. & Pr. 698; Bishop, Directions & Forms, §§ 245-250; People v. Jackson, 191 N.Y. 293, 15 L.R.A. (N.S.) 1173, 14 Ann. Cas. 243, 84 N.E. 65.

An officer must be actively engaged in the legal performance of a duty as such at the time of the bribery or offer of the money. Moore v. State, 44 Tex. Crim. Rep. 159, 69 S.W. 521; Moseley v. State, 25 Tex. Crim. Rep. 515, 8 S.W. 652; Re Yee Gee, 83 F. 145; State v. Butler, 178 Mo. 272, 77 S.W. 560; United States v. Boyer, 85 F. 425; United States v. Gibson, 47 F. 833.

Henry J. Linde, Attorney General, and Geo. P. Homnes, State's Attorney, for respondent.

A public officer is defined, "as the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or during the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government to be exercised by him for the benefit of the public. Mechem, Pub. Off. § 1; 29 Cyc. 1364; 1 McClain, Crim. Law, § 646.

A deputy sheriff is a public officer. Comp. Laws 1913, §§ 833, 3521-3523, 10107; State ex rel. Wingate v. Valle, 41 Mo. 30; People ex rel. Throop v. Langdon, 40 Mich. 673; Rowland v. New York, 83 N.Y. 376; State ex rel. Cannon v. May, 106 Mo. 488, 17 S.W. 660; United States v. Maurice, 2 Brock. 96, F. Cas. No. 15,747; State v. Dierberger, 90 Mo. 369, 2 S.W. 286; 29 Cyc. 1395; Williamson v. Lake County, 17 S.D. 353, 96 N.W. 702; Florez v. State, 11 Tex.App. 102; Ex Parte Winters, Okla. Crim. Rep. , 51 L.R.A. (N.S.) 1087, 140 P. 164.

If the law applies to the one who accepts a bribe, under such state of facts, it is good as against the briber. State v. Duncan, 153 Ind. 320, 54 N.E. 1067; State v. McNally, 34 Me. 210, 56 Am. Dec. 650.

An executive officer is one whose duties are to cause the laws to be executed and obeyed. Petterson v. State, Tex. Crim. Rep. , 58 S.W. 100; People v. Salsbury, 134 Mich. 537, 96 N.W. 936.

The exact words of the statute defining a crime need not be used in charging its commission, but other words meaning the same thing may be used. Comp. Laws 1913, §§ 10692, 10693; 1 Bishop, Crim. Proc. §§ 626-628; Com. v. Bean, 11 Cush. 414; State v. Howard, 66 Minn. 309, 34 L.R.A. 178, 61 Am. St. Rep. 403, 68 N.W. 1096.

The mere omission of the use of statutory terms will not render the charge in the information subject to objection, where equivalent terms are used. State v. Fooks, 29 Kan. 425; State v. McGaffin, 36 Kan. 320, 13 P. 560; United States v. Wilson, 29 F. 286; State v. Eames, 39 La.Ann. 986, 3 So. 93; Bishop, Directions & Forms, 245-250.

The corrupt intent must be alleged in the indictment. One or more of the words "wilfully," "feloniously," "corruptly," or "unlawfully" may be used. 4 Standard Enc. Proc. § 570; Sharp v. United States, 71 C.C.A. 258, 138 F. 878; People v. Emmons, 7 Cal.App. 685, 95 P. 1032; Higgins v. State, 157 Ind. 57, 60 N.E. 685; Com. v. Root, 96 Ky. 533, 29 S.W. 351; People v. Hammand, 132 Mich. 422, 93 N.W. 1084; State v. Graham, 96 Mo. 120, 8 S.W. 911; State v. Pritchard, 107 N.C. 921, 12 S.E. 50.

In bribery, the offense is complete when an offer or reward is made to influence the vote or action of the official. It need not be averred that the vote, if procured, would have produced the desired result, nor need authority to do the thing desired be alleged. State v. Ellis, 33 N.J.L. 102, 97 Am. Dec. 707; Shircliff v. State, 96 Ind. 369; Scoggins v. State, 18 Tex.App. 298; People v. Markham, 64 Cal. 157, 49 Am. Rep. 700, 30 P. 620; 4 R. C. L. §§ 13, 17, pp. 183, 187; Tillman v. State, 58 Fla. 113, 138 Am. St. Rep. 100, 50 So. 675, 19 Ann. Cas. 91.

Under some statutes, the contrary rule of pleading is required. 5 Cyc. 1043, 1044; Com. v. Lapham, 156 Mass. 480, 31 N.E. 638; Higgins v. State, 157 Ind. 57, 60 N.E. 685.

OPINION

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 LaFlame against arrest, and to refrain from arresting him, said Joseph LaFlame, . . . for selling intoxicating liquors as a beverage in violation of the laws of North Dakota, the said LaFlame 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 attempts to influence the acts of the deputy are in law attempts to influence 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 Dakota 376, 31 N.W. 645, and Summerville v. Sorrenson, 23 N.D. 460, 42 L.R.A. (N.S.) 877, 136 N.W. 938, 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.

It is unnecessary to pass upon what phases the case might present independent of § 10107, Comp. Laws 1913. It is there provided that "it shall be the duty of every sheriff, deputy sheriff, constable, mayor, marshall, 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.

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 "wilfully 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, Comp. Laws 1913. It is true that, to constitute a bribe as defined by § 10362, Comp. Laws 1913, the money must be given or offered with a corrupt intent; and "corruptly" is also defined by § 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 P. 693, the following from that opinion is authority: "It...