The State v. McDonald

• Decision Date: 17 April 1886
• Docket Number: 12,920
• Citation: 6 N.E. 607,106 Ind. 233
• Parties: The State v. McDonald
• Court: Indiana Supreme Court

6 N.E. 607

106 Ind. 233

The State v. McDonald

No. 12,920

Supreme Court of Indiana

April 17, 1886

From the Randolph Circuit Court.

The judgment is reversed, at appellee's costs.

F. T Hord, Attorney General, and E. E. McGriff, for the State.

W. A Thompson, A. O. Marsh, J. W. Thompson, R. S. Gregory and A C. Silverburg, for appellee.

OPINION

Zollars, J.

The second and fifth counts of the indictment were non-prossed. The court below sustained a motion to quash the first, third, fourth and sixth counts. The State, by its prosecuting attorney, excepted, prosecutes this appeal, and assigns that ruling as error.

The substance of the first count is, that on the 15th day of June, 1884, appellee unlawfully, feloniously and corruptly offered and promised John B. Fortenbaugh, a township trustee, that if he, as such trustee, would purchase of appellee twelve sets of reading charts for the township, and pay him therefor the sum of $ 175, he would sign and deliver to the trustee a voucher and receipt in his favor, as such trustee, "on said township" for $ 194, thereby unlawfully, corruptly and feloniously offering the sum of $ 19, of the value of $ 19, the difference between the amount of the receipt and the amount to be paid, and that the offer and promise were unlawfully, feloniously and corruptly made for the purpose of bribing, inducing and influencing the trustee to act in buying the charts of appellee.

The third count is the same, except that it is therein charged that the value of the receipt promised was then and there of the value of $ 194.

The fourth count is the same as the first, except that it is therein charged that the offer and promise were made to the trustee of the school township.

The sixth count is the same as the third, except that it is charged therein that the offer and promise were made to the trustee of the school township.

The purpose of the prosecutor, as we are informed by his brief, was to charge an offence under sections 2009 and 2051, R. S. 1881, but more particularly under section 2009. We do not think that the facts stated bring the case within section 2051. Do they make a case under section 2009? So far as it is necessary to set out that section, it is as follows: "Whoever corruptly gives, promises, or offers to any * * * person holding any office of trust or profit under the laws of this State, * * * any money or valuable thing; or corruptly offers or promises to do any act beneficial to any such person, to influence his action, * * * in any matter pending or that might legally come before him, * * * shall, upon conviction thereof, be imprisoned," etc.

It will be observed, that in the first and fourth counts, it is charged that the offer and promise were to the township trustee, and that in the third and sixth counts, it is charged that the offer and promise were to the trustee of the school township.

That the township trustee, whether acting for the civil or school township, is a person holding an office of trust and profit under the laws of this State, and that the alleged offer and promise were in relation to a matter pending before him, is clear. Shircliff v. State, 96 Ind. 369.

We take notice, as a matter of law, that a person is the trustee of the school township, if he is the township trustee. We also take notice that in contracting for school apparatus, the township trustee acts as the trustee of the school township. Inglis v. State, ex rel., 61 Ind. 212; Middleton v. Greeson, ante, p. 18.

We think, therefore, that in a prosecution like this, it may be proper, in naming the officer to whom the bribe was offered, to designate him either as the township trustee, or as the trustee of the school township.

It will be observed, also, that in the first and fourth counts it is charged, that, by the offer and promise, appellee thereby offered to the trustee $ 19, of the value of $ 19, being the difference between the amount of the receipt and the amount to be paid for the charts, and that in the third and sixth counts it is charged that the receipt offered and promised was then and there of the value of $ 194.

It can not be correctly said that the receipt was then and there of the value of $ 194, for the reason that it had not been executed. The offer and promise were to execute and deliver it, upon the condition that the trustee would accept the terms proposed. Nor can it be correctly said that by the offer and promise made by appellee, he thereby offered to the trustee $ 19. He did not propose to pay over any money; he simply offered and promised to do an act that might enable the trustee to make $ 19 in his settlement with the county board. The statement, that appellee thereby offered $ 19, is simply a conclusion of the pleader, and not the statement of a fact, and is, therefore, mere surplusage, that may be disregarded.

It is provided by statute that no indictment shall be quashed for any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged, nor for any other defect or imperfection which does not tend to prejudice the substantial rights of the defendant upon the merits. R. S. 1881, section 1756; Myers v. State, 101 Ind. 379; State v. Anderson, 103 Ind. 170, 2 N.E. 332.

If an offence is charged in the indictment, it must rest upon that part of the statute which makes it unlawful to corruptly offer or promise to do any act beneficial to the officer to influence his action. Appellee did not offer or promise to pay over any money, he did not offer or promise an existing valuable thing, but he corruptly offered and promised to do an act, viz., to make and deliver to the trustee a voucher and receipt, to induce and influence him to make the purchase of the charts at $ 175.

The prosecuting attorney contends in argument, that each count of the indictment makes a case against appellee, for having made such offer and...