State v. Sweeney

• Citation: 231 N.W. 225,180 Minn. 450
• Decision Date: 29 May 1930
• Docket Number: No. 27773.,27773.
• Parties: STATE v. SWEENEY.
• Court: Supreme Court of Minnesota (US)

231 N.W. 225

180 Minn. 450

STATE v. SWEENEY.

No. 27773.

Supreme Court of Minnesota.

May 29, 1930.

Appeal from District Court, Hennepin County; W. W. Bardwell, Judge.

Edward J. Sweeney was convicted of bribery, and he appeals.

Affirmed.

M. F. Kinkead, of St. Paul, for appellant.

Henry N. Benson, Atty. Gen., James E. Markham, Deputy Atty. Gen., and Floyd B. Olson, Co. Atty., and Wm. G. Compton, Asst. Co. Atty., both of Minneapolis, for the State.

WILSON, C. J.

Defendant was convicted of the crime of bribery, and appealed from an order denying his motion for a new trial.

Defendant and Fred A. Maurer were Minneapolis aldermen representing the third ward therein. On their motion, the city council, on March 11, 1927, authorized the purchase of a G. M. C. 5-ton truck from the General Motors Truck Company for $8,501.25. The indictment is that defendant received from Maurer $405 in consideration of his voting for the purchase of the truck. The facts as we state them rest largely upon the testimony of Maurer. He testified that in the latter part of 1925 he and defendant decided to "stick together," hoping to make some money and that any deal of which either of them was the "father * * * we were to go fifty-fifty" on "any money that we procured." Perhaps the witness wished to be understood as saying that he did not give his unqualified consent to the corrupt arrangement until early in 1926. Defendant and Maurer initiated the movement to buy the truck for which there was an advertisement for bids. Maurer talked to the General Motor Company's agent and was promised a "commission" of about 10 per cent. Maurer reported to defendant, who said that it was "all right." After the said action of the council, the agent gave Maurer $810, and Maurer gave defendant $405. This is the basis for the indictment.

Upon the trial, the state proved, largely by Maurer, offenses or corrupt conduct other than the charge in the indictment substantially as follows:

A street flusher was purchased in connection with the truck. Maurer came in contact with the agent therefor. Defendant knowingly acquiesced. After the matter passed the council, Maurer received $400 and gave half thereof to defendant.

In December, 1925, the city council granted a permit to the Clover Leaf Creamery Company for the erection of a barn. Maurer talked to the agent of the creamery company, then to defendant, then to the agent, who thereafter gave Maurer $500. Maurer gave defendant $250. This money was not solicited nor promised. It was apparently given as a gratuity after the permit was received, a recognition for past favors.

In 1926 a permit was issued by the council to Jennison-Rollins Company for an oil and gasoline station. Mr. Rose, their agent, talked to Maurer, who was thereby made $150 richer. He gave $75 to defendant. Maurer and defendant signed the permit.

In the fall of 1926, defendant told Maurer of the existence and location of a gambling house and that "there was another chance to make some money. * * * He said all we would have to do was to keep quiet and not bother them. * * * Absolutely ignore that the place was there that was all. * * * He said that we would not handle any money ourselves, that is, that we would not do any collecting ourselves, but that we would have somebody else do it." Maurer refused, but later acquiesced, and one Duffy gave him $25 per week while the place was running, but he does not know what defendant received.

The gambling house ceased operation but opened again late in 1927 with a new proprietor. Maurer's attention was called to it. At defendant's suggestion, Maurer called on Duffy. The place was mentioned. Duffy gave Maurer $75. The parties understood.

In May, 1927, one Davidson sought a filling station permit. While the application was pending, Maurer, after talking to the applicant, told defendant that there would be $500 in it. Defendant agreed to sign the permit. He did so. Both approved it. Davidson paid Maurer $250, which Maurer gave defendant. Davidson agreed to pay the other $250, but he sold out and left town, and Maurer did not get his share.

In August, 1928, there was under consideration the purchase of a scarifier grader. Maurer talked to the seller, who agreed to pay $165. The deal was made. Maurer got the money and gave to defendant $82.50.

In 1928, on recommendation of Maurer and defendant, the city bought three cars of macadam binder. Maurer investigated and reported to defendant that if bought from a named agent there would be $100 per car "in it for us." It was arranged to buy small cars so that each would cost under $1,000 so that it would not be necessary to advertise for bids. This transaction involved much manipulation and deliberate planning in great detail. The plan was consummated. Defendant collected the $100 on each car and gave Maurer $50 on each of the three cars.

1. A conviction cannot be had upon the uncorroborated testimony of an accomplice. G. S. 1923, § 9903. Defendant was convicted of receiving a bribe. The indictment is under G. S. 1923, § 9983. Was Maurer an accomplice in the crime for which defendant was convicted? The question has been answered in the negative. State v. Durnam, 73 Minn. 150, 75 N. W. 1127. The general test to determine whether a witness is or is not an accomplice is whether he himself could have been indicted for the offense either as principal or as an accessory. If he could not, then he is not an accomplice. State v. Durnam, supra; State v. Renswick, 85 Minn. 19, 88 N. W. 22; State v. Gordon, 105 Minn. 217, 117 N. W. 483, 15 Ann. Cas. 897; State v. Price, 135 Minn. 159, 160 N. W. 677; State v. Smith, 144 Minn. 348, 175 N. W. 689. The rule seems too well established to now adopt what some may term the more logical test as indicated in Egan v. U. S., 52 App. D. C. 384, 287 F. 958. But, under our statute, giving a bribe and accepting a bribe are separate offenses, and, if Maurer were to be indicted for giving the bribe, it would be under G. S. 1923, § 9982. Under our decisions, Maurer was not an accomplice in the legal significance contemplated by the statute. His acceptance of a bribe from the agent who paid him $810 is another offense. It follows that defendant's conviction in this case may, as it does, rest upon the uncorroborated testimony of Maurer.

2. Defendant urges that the evidence shows that he and Maurer were accomplices in receiving an $810 bribe from the agent of the General Motors Corporation, and that there was a fatal variance between the indictment and the proof. This is upon the theory that the transaction of the agent was exclusively with Maurer, but that both Maurer and defendant were the joint beneficiaries of the $810, half of which it is asserted Maurer gave to defendant as a division of the spoils. Possibly the facts might have been so construed. The state construed the transaction differently and alleged that Maurer bribed defendant by giving him $405. The jury have found this to be the fact. The finding is not without support in the evidence which, among other things, shows that defendant expressly refused to deal with the agent. Defendant's corrupt intention and conduct rested exclusively upon his conduct with Maurer. The mutually co-operative corrupt arrangement was susceptible to the construction that one of the two men was to bribe the other, or vice versa, as occasion might arise. The finding is adverse to the contention of a variance.

3. Defendant upon trial never made the claim of such variance. Objection to a variance cannot be made for the first time on appeal. State v. Brame, 61 Minn. 101, 63 N. W. 250; State v. Eidsvold Creamery Co., 156 Minn. 27, 194 N. W. 17.

4. The general rule in a criminal case is that evidence which in any manner shows or tends to show that the accused has committed another crime independent of that for which he is on trial is inadmissible. The reason is obvious, and should be rigorously enforced. The rule, however, like most rules, has certain exceptions not to be stated categorically, but among which evidence of other crimes is admissible to prove the accusation when it tends to establish (1) motive; (2) intent; (3) absence of mistake or accident; (4) the identity of the accused; (5) sex crimes; (6) a common scheme or plan embracing the commission of similar crimes so related to each other that proof of one or more of such tends to establish the accusation. Such is the common law.

We are here interested only in the last-mentioned exception. This exception rests upon system and involves a general and composite plan or scheme. Some connection between the crimes must be shown to have existed in fact and in the mind of the defendant, uniting them for the accomplishment of a common purpose before such evidence can be received. This connection and such system was not shown in State v. Fitchette, 88 Minn. 145, 92 N. W. 527, upon which defendant herein places much reliance. The evidence in the Fitchette Case did not bring it within any of the exceptions mentioned. That case was controlled by the general rule. The system was shown in this case. All these transactions were corrupt and were for the purpose of corruptly obtaining money through the abuse of a public trust. This was the common aim. Evidence of such other crimes is admissible, not to establish the other crimes, but as confirmation of the evidence tending to convict defendant of the crime for which he is on trial. State v. Monroe, 142 Minn. 394, 172 N. W. 313; State v. Whipple, 143 Minn. 403, 173 N. W. 801; State v. Friedman, 146 Minn. 373, 178 N. W. 895, 184 N. W. 272; State v. Ettenberg, 145 Minn. 39, 176 N. W. 171; State v. Friend, 151 Minn. 138, 186 N. W. 241; State v. Hacker, 153 Minn. 538, 191 N. W. 37; State v. Clark, 155 Minn. 117, 192 N. W. 737; State v. Upson, 162 Minn. 9, 201 N. W. 913; State v. Eames, 163 Minn. 249, 203 N. W. 769; State v. Sabatini, 171 Minn. 137, 213 N. W. 552; State v. Kiewel, 173 Minn. 473, 217 N. W....