State v. Whetstone
| Citation | 30 Wn.2d 301,191 P.2d 818 |
| Decision Date | 26 March 1948 |
| Docket Number | 30333. |
| Parties | STATE v. WHETSTONE. |
| Court | Washington Supreme Court |
Department 2
Rehearing Denied May 27, 1948.
Joseph A Whetstone was convicted of asking for or receiving a bribe and he appeals.
Affirmed.
Appeal from Superior Court, King County; Clay Allen, Judge.
Monheimer Schermer & Mifflin, of Seattle, for appellant.
Lloyd Shorett and Max R. Nicolai, both of Seattle, for respondent.
The defendant, Joseph A. Whetstone, was indicted by a grand jury of King county, Washington, for the crime of 'asking or receiving bribe,' committed as follows, to wit:
Count II:
'He, the said Joseph A. Whetstone, in the County of King, State of Washington, within ten years last past, and on or about the 16th day of October, 1946, the exact date being unknown, unlawfully, while he, the said Joseph A. Whetstone was a duly elected executive officer, namely, County Commissioner for the County of King, and as such, executing the functions of a public officer, did ask for and receive from Robert C. Gourlay, the latter acting as agent for J. Arthur Lind, a compensation or reward, to-wit: Seven Hundred and Fifty Dollars ($750.00), in lawful money of the United States of America, upon an agreement or understanding that he, the said Joseph A. Whetstone would use his official influence to reduce an indemnity bond required from J. Arthur Lind by King County, and would permit the said J. Arthur Lind to reduce labor and material costs in connection with allowing the said J. Arthur Lind to use a King County bridge across the Snoqualmie River for the transportation of timber;
'Contrary to the statute in such case made and provided, and against the peace and dignity of the State of Washington.'
The above indictment was filed in the superior court for King county on February 27, 1947.
On February 28, 1947, defendant interposed a demurrer to count one and count two of the indictment, on the ground that the indictment did not state facts sufficient to charge an offense under the laws of the state of Washington. On the same date defendant also filed a motion for bill of particulars, or in the alternative to make more definite and certain. The demurrer and motion came on for hearing Before the court on March 21, 1947, and after argument of counsel an order was entered overruling the demurrer and denying defendant's motion.
Defendant entered a plea of not guilty to each count contained in the indictment.
The cause came on for hearing Before the court and jury on June 2, 1947. Evidence was introduced by both the state and defendant, and thereafter, on June 6, 1947, the jury returned a verdict of guilty of the crime of asking or receiving bribe, as charged in count one of the indictment, and another verdict of guilty of the crime of asking or receiving bribe, as charged in count two of the indictment.
On June 9, 1947, defendant filed a motion for arrest of judgment, on the following grounds:
'1. That the facts, as stated in the indictment, do not constitute a crime or misdemeanor.
On the same date, defendant also filed a motion for new trial, on all the grounds set out in Rem.Rev.Stat. § 2181. The motion for new trial and the motion in arrest of judgment were denied, and on July 15, 1947, judgment and sentence, based on the verdicts returned by the jury, were imposed. Counsel for defendant gave oral notice of appeal in open court.
Present counsel for appellant did not participate in the trial in the lower court.
Appellant makes the following assignments of error:
'1. The overruling of defendant's demurrer interposed to both counts of the indictment.
'2. The insufficiency of the allegations contained in each count of the indictment to constitute a criminal offense in each count.
'3. The denial of defendant's motion in arrest of judgment.
'4. The insufficiency of the evidence to support each count of the indictment.
'5. The denial of defendant's motions for dismissal interposed at the conclusion of the state's case and at the conclusion of all of the evidence for a directed verdict.
'6. Errors of law occurring at the time of trial, denying defendant a fair trial.
'7. Misconduct of the trial court and counsel in denying defendant a fair trial.
Assignments of error Nos. 1, 2 and 3, are argued together, and appellant states in his brief: 'It is our position that both counts of the indictment are faulty and fail signally to allege a crime, specifically, the crime with which this defendant is charged, that of asking and receiving a bribe.'
It is specifically contended by appellant that each count of the indictment is fatally defective, in that it fails to allege that the matter was one which was 'then pending, or which may by law be brought Before him [Whetstone] in his official capacity,' as provided by Rem.Rev.Stat. § 2321.
Respondent contends (1) that the indictment is sufficient because as to each count, instead of using the statutory language, it expressly states the specific matter concerning which the agreement was had; and (2) that if there was any defect in the indictment, such defect was cured by the fact that the elements allegedly omitted were introduced in evidence without objection, thereby amending the indictment.
The crime of which appellant was convicted is defined by Rem.Rev.Stat. § 2321, which, so far as material here, provides: 'Every executive or administrative officer or person elected or appointed to an executive or administrative office who shall ask or receive, directly or indirectly, any compensation, gratuity or reward, or any promise thereof, upon an agreement or understanding that his vote, opinion or action upon any matter then pending, or which may by law be brought Before him in his official capacity, shall be influenced thereby * * *.' Relative to respondent's first contention, the particular part of count one referred to therein states: '* * * upon an agreement or understanding that he the said Joseph A. Whetstone, would use his official influence to facilitate the rezoning of certain lands in which Irene H. Jones was interested for use as an airfield.'
The particular part of count two referred to states: '* * * upon an agreement or understanding that he, the said Joseph A. Whetstone would use his official influence to reduce an indemnity bond required from J. Arthur Lind by King County, and would permit the said J. Arthur Lind to reduce labor and material costs in connection with allowing the said J. Arthur Lind to use a King County bridge across the Snoqualmie River for the transportation of timber.'
Again stating respondent's position on this matter, it is that by alleging the specific subject matter of the agreement, the indictment fully complies with Rem.Rev.Stat. § 2055, which provides:
'Contents of indictment or information. The indictment or information must contain,----
'1. The title of the action, specifying the name of the court to which the indictment or information is presented, and the names of the parties;
It will be observed that the question here presented is whether or not the indictment sufficiently states 'the acts constituting the offense [of asking or receiving bribe] in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.'
Appellant argues that it must be alleged in an indictment based on § 2321, supra, that the matter was 'then pending, or [a matter] which may by law be brought Before him [the official] in his official capacity.' Neither count of the indictment contains the specific allegations last above quoted.
Appellant, in his opening brief, relies entirely upon the case of State v. Hart, 136 Wash. 278, 239 P. 834, 836, to sustain his contention. The information in that case was based upon Rem.Comp.Stat. § 2321, now Rem.Rev.Stat. § 2321. The information did not allege '* * * that the matter of fixing the fees of these officers was then pending Before him [the governor], or that it might by law by brought Before him, or that there was any agreement or understanding that his vote, opinion or action in the matter should be influenced by the promise of such payment.'
We quote from the opinion in the Hart case, and this quotation, it seems to us, will sufficiently show that the cited case is not controlling here.
'While it is alleged that the defendant asked the liquidator of the...
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