State v. Lowrie

• Decision Date: 03 July 1952
• Docket Number: No. 35774,35774
• Citation: 237 Minn. 240,54 N.W.2d 265
• Parties: STATE v. LOWRIE.
• Court: Minnesota Supreme Court

Page 265

54 N.W.2d 265

237 Minn. 240

STATE v. LOWRIE.

No. 35774.

Supreme Court of Minnesota.

July 3, 1952.

Syllabus by the Court.

1. Under M.S.A. § 610.27, which defines an 'attempt' to commit a crime as an act done with such intent and tending, but failing, to accomplish it, to constitute such an 'attempt,' there must be something more than mere solicitation. Mere acts of preparation remote from the time and place of the intended crime, unaccompanied by other overt acts performed pursuant to the intent, are insufficient.

2. An indictment for attempted bribery which at no place charged that either defendant or his agent had made contact with the official sought to be bribed and which charged only defendant's solicitation of another to commit the crime and certain other actions on his part remote from the time and place of the intended bribery Held insufficient.

3. Decisions supporting principle that Attempted bribery may be consummated though there be no actual delivery of gift or reward offered to the public official involve cases where actual contact, communication, or conversation was had with official sought to be bribed, and hence, are inapplicable here, where no such contact was made.

4. Indictment which by its terms accused defendant only of crime of Attempted bribery, but which was inadequate for such purpose, and which did not charge him with commission of any other crime, Held insufficient to charge defendant with commission of any crime.

Case remanded for such further proceedings consistent herewith as are required by law.

J. A. A. Burnquist, Atty. Gen., Robert R. Dunlap, County Atty., Plainview, for plaintiff.

Foley & Foley, Wabasha, Lawrence R. Lunde, Lake City, for defendant.

THOMAS GALLAGHER, Justice.

On May 18, 1950, defendant was indicted by the grand jury of Wabasha county for 'attempted bribery' of the county attorney of Wabasha county. At his arraignment on May 22, 1950, prior to entering a plea, he moved for an order quashing the indictment.

On June 15, 1950, the court made its order denying defendant's motion, and on June 23, 1950, certified certain questions of law to this court as important and doubtful. Those questions were disposed of in State v. Lowrie, 235 Minn. 82, 49 N.W.2d 631, and the case remanded for further proceedings.

On December 17, 1951, defendant was again arraigned on the original indictment, and, before pleading, he interposed a demurrer thereto. On January 26, 1952, the trial court made its order overruling the demurrer, but thereupon reported to this court that certain questions of law which arose in connection therewith were so important and doubtful as to require a decision by this court before further proceedings could be had.

The questions thus reported and certified are as follows:

(1) Does the indictment charge defendant with the crime of attempted bribery?

(2) If not, does it charge defendant with the commission of any crime?

In substance, the material parts of the indictment are as follows:

That defendant was the owner of a night club and cafe during the year 1949 in Wabasha county and, in connection therewith, desired and intended to engage in gambling through the use of coin-operated machines which were set up and in operation in his place of business.

That in conjunction therewith defendant desired protection from suppression of the coin-operated machines to be used in conjunction with such gambling and to further protect himself from prosecution for their illegal use.

That on or about May 15, 1949, with intent to bribe the county attorney of Wabasha county, defendant requested on Hollie Cliff to ascertain what amount of money would be necessary to be paid to the county attorney to permit defendant to conduct the illegal activities without suppression or prosecution.

That Hollie Cliff later reported to defendant that he could engage in the illegal activities upon payment of $1,600 to the county attorney of Wabasha county.

That defendant thereupon agreed to pay such amount to Hollie Cliff for the county attorney in installments as follows: $300 in June 1949; $300 in August 1949; $500 in November 1949; and $500 in December 1949.

That in furtherance of said agreement and with intent to bribe the county attorney defendant did make to said Hollie Cliff, for delivery to the county attorney, a payment of $300 in June 1949, one of $300 in August 1949, and one of $300 in November 1949. That thereupon, believing the bribery of the county attorney to have been accomplished, defendant engaged in the illegal gambling activities described.

1. M.S.A. § 613.02 in substance defines bribery as giving or offering or causing to be given or offered to a public official a bribe or any money, property, or value of any kind, or promise with intent to influence him in the exercise of his powers or functions. Section 610.27 defines an attempt to commit a crime as: 'An act done with intent to commit a crime and tending, but failing, to accomplish it, * * *.' In 11 C.J.S., Bribery, § 6, it is stated that both at common law and under statute an attempt to bribe may be a criminal offense, even though there is no delivery of the gift offered to the official involved.

In construing § 610.27, this court has held that to consummate an attempt to commit a crime something more than the mere solicitation of another to commit it is necessary, State v. Lampe, 131 Minn. 65, 154 N.W. 737; that mere acts of preparation remote from the time and place...