Taylor v. State

• Decision Date: 17 September 1931
• Docket Number: No. 21125.,21125.
• Citation: 160 S.E. 667,44 Ga.App. 64
• Parties: TAYLOR v. STATE.
• Court: Georgia Court of Appeals

44 Ga.App. 64

160 S.E. 667

TAYLOR

v.STATE.

No. 21125.

Court of Appeals of Georgia,

Division No. 1.

Sept. 17, 1931.

Syllabus by the Court.

The court did not err in overruling the demurrer to the special presentment charging the offense of bribery, alleged to have been committed by offering a stated sum of money to a councilman of the city of Atlanta to influence his behavior in a stated matter pending before the general council of the city.

Syllabus by the Court.

It appearing from undisputed evidence that prior to the expiration of the statutory period in which an indictment for the offense in question could have been found and filed, the offense was known to one whose special duty it was to report it, and such knowledge being imputable to the state and being knowledge of the state in legal contemplation, and the special presentment having been found after the expiration of the statutory period, a prosecution for the offense was barred by the statute of limitations, and the court erred in overruling the motion for a new trial.

BELL, J., dissenting.

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Walter C. Taylor was convicted under an indictment charging unlawful offer of a reward to influence the behavior of a councilman, and he brings error.

Reversed.

Arnold, Arnold & Gambrell and Samuel D. Hewlett, all of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., Wm. Schley Howard, and J. W. Le Craw, all of Atlanta, for the State.

LUKE, J.

Walter C. Taylor was convicted under an indictment dated May 29, 1930, which alleged that on the first day of March, 1923, he "did unlawfully offer to give to J. A. Beall, a legally qualified councilman of the city of Atlanta, a municipal corporation, four hundred dollars in money as a present and reward offered by accused to said councilman to influence the behavior of the said councilman" in a matter pending before the general council of the city of Atlanta. To this indictment, the accused filed a demurrer which was overruled on all its grounds. The demurrer was as follows: "1. Said indictment sets forth no offense under the laws of the State of Georgia. 2. The office of councilman of the City of Atlanta is not such an office as the crime of bribery may be committed in respect to. 3. Further demurring, this defendant says that said indictment onlycharges that this defendant did 'offer' to give said Beall a certain sum of money to influence the behavior of said councilman Beall in the matter of a license, as therein described, which application for license was depending before the council, and this defendant says that section 270 of the Penal Code, which defines the offense of bribery generally, does not make the mere offering of a sum of money to influence the official action of another the crime of bribery, but makes only a crime the actual and substantive offense of bribing an official to influence him in his official duty, and the only section which makes the offering of a sum of money a crime is section 271, which does not and can not apply to an officer of a municipal corporation, and only applies, outside of members of the General Assembly, judges and referees, to 'officers of this State, ' and a councilman of the City of Atlanta is not an officer of this State." On the trial of the case, the defendant was convicted and filed a motion for a new trial which was overruled. He assigns error on the overruling of his demurrer and on the overruling of his motion for a new trial.

1. In Payne v. State, 153 Ga. 882, 113 S. E. 446, 447, the Supreme Court held that a policeman of the city of Atlanta is an "officer of the State" within the meaning of section 271 of the Penal Code. It was said that the principal duty of a policeman is the preservation of the public peace, and that the public peace is a matter of public concern. "Policemen are clothed with full power of enforcing not only municipal laws and ordinances within their prescribed spheres, but also the laws of the state within their jurisdiction." The court further observed that while they are appointed by a board of the municipal government, "they are appointed under legislative authority authorizing the creation of those boards; and therefore they come within the meaning of 'office of government or of justice' and 'officer of this state, ' within the meaning of the sections of the Penal Code now under review." We do not think it necessary to determine in the present case whether the reasoning of the Supreme Court in the Payne Case, supra, would apply equally to a councilman of a municipality. It may or may not be that such an officer is an "officer of this State, " within the meaning of section 271. It is enough to say that under the decision in that case the offense of bribery may be committed either in the manner pointed out in section 270, or in the manner stated in section 271, and that the latter section was intended to fix a penalty for the offense whether committed under either of these sections. The indictment in question contained a sufficient statement of the offense under section 270, and it cannot reasonably be contended that the councilman did not have a duty to perform in an "office of government" within the meaning of that section whether or not he was an "officer of this State" within the meaning of section 271.

The indictment does not undertake to specify the character of the office held by the person sought to be bribed, other than to say that he was a councilman of the city of Atlanta; but this was sufficient as a matter of pleading, since the character of the office is determined by law, and anything further upon this point would have amounted to a mere conclusion of the pleader.

The indictment appears to have been drawn under section 270, or to have been at least sufficient to invoke the provisions of that section, and the provisions of section 271 were not needed, except to prescribe and fix the punishment. The offense of bribery as described in each section is a misdemeanor, and it is the law of this state that "the attempt to commit a misdemeanor shall be punished in the same manner as the misdemeanor which was attempted is punishable." Penal Code 1910, § 1066 (7). In other words, it is a misdemeanor to attempt to commit a misdemeanor. See 2 Bishop Crim. L. § 88. The contention of counsel for the plaintiff in error that this provision of law is inapplicable to section 270 relating to the offense of bribery is untenable. With practically the same force it might be argued that it was inapplicable to any other offense as defined in the Code. Under this construction, the indictment in this case did not charge the substantive and complete offense of bribery; but there is no reason why the solicitor general may not draw an indictment for an attempt to commit an offense, where the evidence will not establish more, rather than to place before the grand jury an indictment for the completed offense and then, if the same is returned, to ask for a verdict for the lesser offense of an attempt. In fact, the former course would appear to be the fairer as well as the wiser policy, from the state's standpoint. Any other practice might tend to confuse not only the defendant, but also the grand jury and the trial jurors as well; and this is true, notwithstanding the rule that upon the trial of an indictment for any offense the jury may find the accused not guilty of the offense charged in the indictment, but, if the evidence warrants it, guilty of an attempt to commit such offense, without any special count in the indictment for such attempt. Penal Code 1910, § 1061. This section in express terms recognizes that a person may be indicted for an attempt to commit an offense. The court did not err in overruling the demurrer to the indictment.

2. The evidence establishes as a matter of law that the offense charged was barred by the statute of limitations, whichlimits to two years the period for finding and filing indictments for such offenses. Penal Code, § 30. The special presentment alleges that the offense was committed in 1923, and the special presentment is dated May, 1930. It alleges also that the offense was unknown until May 22, 1930. This allegation that the crime was unknown is an exception to the limitation of prosecutions provided by section 30 of the Penal Code. In Bazemore v. State, 34 Ga. App. 773, 131 S. E. 177, the Court of Appeals held unqualifiedly that "In a criminal case, where an exception is relied upon to prevent the bar of the statute of limitations, it must be alleged, and proved; " and in the opinion, the court said: "The exception, therefore, is an essential and material part of the accusation, and necessary to be proved. Hollingsworth v. State, 7 Ga. App. 16 (1), 65 S. E. 1077; Hansford v. State, 54 Ga. 55 (3)." And this court reversed the judgment of the lower court on the ground that the evidence was "not sufficient to support the allegation that the offender was not known." It will be noted that this ruling is applicable "in a criminal case" without exception as to "those cases where the offense is against society in general and there is no prosecutor." From that case and many other authorities it would appear that the burden was on the state in any "criminal case" to allege and prove that the offender was not known. See, also, Williams v. State, 13 Ga. App. 338 (1), 79 S. E. 207; Flint v. State, 12 Ga. App. 169, 172, 76 S. E. 1032; Hammock v. State, 116 Ga. 595, 43 S. E. 47.

However, assuming that the state was required to make only a prima facie case, and that the "presentment containing the exception will presumptively establish that the offense or offender was unknown, " until it is disproved, as held in the case of Cohen v. State, 2 Ga. App. 689, 59 S. E. 4, 7, cited by the state, we are of the opinion that the defendant completely rebutted this presumption, and did it with the state's witness.

Recognizing the jury's right to pass on conflicting evidence, we...