Turner v. State

• Decision Date: 04 September 1931
• Docket Number: No. 20979.,20979.
• Citation: 160 S.E. 509,43 Ga.App. 799
• Parties: TURNER v. STATE.
• Court: Georgia Court of Appeals

43 Ga.App. 799

160 S.E. 509

TURNER

v.STATE.

No. 20979.

Court of Appeals of Georgia, Division No. 1

Sept. 4, 1931.

Rehearing Denied Sept. 17, 1931.

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

J. E. Turner was convicted of bribery, and he brings error.

Affirmed.

Paul S. Etheridge & Son and Morgan Belser, all of Atlanta, for plaintiff in error.

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

LUKE, J.

J. E. Turner and Bruce J. Baxter were charged with bribery in an indictment containing two counts, the first of which alone was submitted to the jury. J. E. Turner was tried separately and found guilty. The first question for decision here is raised by exceptions pendente lite to the court's judgment overruling Turner's demurrer to the indictment. The other questions presented are raised by the motion for a new trial.

Count 1 charges J. E. Turner and Bruce J. Baxter with "the offense of bribery, a misdemeanor, for that said accused, on the 4th day of September, 192S, * * * did unlawfully receive of and from the Federal Motor Truck Sales Corporation a Chevrolet sedan automobile * * * of the value $650, as a reward given to accused by said corporation for procuring from the City of Atlanta, a municipal corporation, an order for the repairing and overhauling of ten Federal motor trucks belonging to the City of Atlanta, said order including the installing of ten new Federal motors in said trucks and repairing chassis, cabs and bodies of said ten trucks, and said order being placed with said Federal Motor Truck Sales Corporation by the City of Atlanta, acting through its purchasing agent, with the signed sanction of the purchasing committee of the General Council of the City of Atlanta, upon the request of the municipal garage and shop department of the City of Atlanta; said delivery to and acceptance of said automobile by accused being in pursuance of an agreement whereby the said Federal Motor Truck Sales Corporation did agree to give to accused an automobile as above stated for the procuring of the order from the City of Atlanta above set forth. And the purpose of the said offer and agreement to give said automobile as a reward was in part the influencing of the official behavior of the said J. E. Turner in the matter of procuring from the said purchasing committee of General Council the sanction of said order above referred to, and the voting of said committee and its members upon the same, the said J. E. Turner being then and there a member of the said purchasing committee, and it being a part of the duty of said purchasing committee to pass upon and sanction the placing of any orders of the character of the order above described, as provided by lawful ordinance of the City of Atlanta, the said J. E. Turner being also a member of the municipal garage committee of the said General Council and chairman of the same, the said J. E. Turner being then and there a legally qualified councilman of the City of Atlanta and a member of the General Council. And the said Bruce J. Baxter, being superintendent of the municipal garage of the City of Atlanta, did aid and abet the said Turner in committing all of aforesaid acts, and did thereby become a principal in said offense; all said acts of accused being contrary to the laws of said State. * * * "

The demurrer to the indictment was on the ground:

(1) It fails to allege that the said reward was received or accepted by accused for the purpose of influencing the official behavior of these defendants, or either of them. (2) It fails to set out in what respect the official behavior of the accused was to be influenced by the payment of the money or property alleged to have been given accused, and what official act was to be performed or not to be performed by the accused as a result of such payment. (3) It does not set forth sufficiently in detail and with certainty the facts constituting the alleged offense, or the manner in which accused are alleged to have been influenced in their official behavior, so as to put the accused and this court on notice as to what charge or charges are to be met. (4) It charges the defendant Turner as being a member of the general council of the city of Atlanta, a municipal corporation, and having received a bribe as such, and fails to allege that he is a member of the General Assembly or officer of this state, subject to the of fense of bribery. (5) It fails to allege that the matter depending before the general council was a matter over which the general council had jurisdiction, or that such matter was lawfully depending before that body.

We have set out the indictment fully in order to avoid repetition. A careful reading of it satisfies us that there is no merit in paragraphs 1, 2, 3, and 5. In regard to paragraph 5 of the demurrer, we quote the following pertinent language from York v. State, 42 Ga. App. 453, 462, 156 S. E. 733, 741: "The gravamen of the offense is the defendant's receiving a bribe to influence his official conduct. In 9 C. J., the general rule is stated that "An official act need not be lawful to render the official liable, but need only be official in form, and done under color of his office. Thus it is not necessary, in order to constitute bribery, that the vote of the public official bribed shall be on a measure which can be enforced." (Italics ours.) In that case the court reached this conclusion (page 464 of 42 Ga. App., 156 S. E. 733, 742): "Clearly our bribery statute is applicable to members of a municipal council." We see no merit in ground 4 of the demurrer. Our conclusion is that the trial judge did not err in overruling the demurrer.

It appears from the record that during the summer of 1928, the Federal Motor Truck Sales Corporation (hereinafter called Federal Corporation for the sake of brevity) overhauled and repaired ten motortrucks belonging to the city of Atlanta for $5,043.03, the $43.03 being added to the contract price of $5,000 for extras. According to the estimate of A. F. Smith, shop foreman of said Federal Corporation, the cost of labor and materials necessary in repairing said trucks, together with a fair profit to said corporation, amounted to something between $4,300 and $4,400. Nat Thornton, manager of the Atlanta Branch of Federal Corporation, testifying in regard to a conversation with Bruce J. Baxter, superintendent of the municipal garage and shop department of the city of Atlanta, said: "In regard to the work of repair, Mr. Baxter came to me and said he would like to have an estimate on the repairs to the trucks, and, the best I remember, Mr. Smith, my foreman, said it would be around $4,400; and he said to raise the estimate enough to take care of the car * * * the sedan which Mr. Turner got." Thornton swore also: "You ask me what Mr. Baxter said prior to that time * * * concerning this automobile. * * * He said he wanted to trade this car for another car, the Ford. He came in and looked at a Chevrolet sedan, and said he would like to get the car for Mr. Turner where it would not cost him anything. Later on they came in together and saw the car. * * * They came in together and selected the car that was finally delivered to Dr. Turner." The bid for repairing said motortrucks was raisedto $5,000 "to cover this automobile." "We quote further from Thornton's testimony: "We made a profit, a reasonable profit, on the repair of those trucks, * * * $600 or $700, I imagine. As I stated, at the instance or suggestion of Mr. Baxter we increased the amount so as to cover this automobile. This was not deducted from our profit. I had informed Mr. Baxter what our estimate would be before he suggested putting on anything to cover the car. Mr. Baxter and Dr. Turner came to our place together during the time this repair work was going on, to the best I recollect, two or three times. When Dr. Turner and Mr. Baxter came there together they were just looking at the car, picking it out and deciding whether to take it or not; and during these visits they selected the car Dr. Turner wanted." The nature of the automobile transaction may be better understood from the following testimony of Mr. Thornton: "As I said, we sold that car to Dr. Turner for $650, of which we received $100 for his old Ford car which we took in exchange, and received from him a check for $550."

J. E. Turner was a councilman of the city of Atlanta, a member of the purchasing committee, and chairman of the municipal garage committee. Section 2349 of the City Code of 1924, which was in evidence, provides: "No contracts or obligations binding the City of Atlanta for the purchase of materials or supplies in excess of current or present requirements, or in excess of $500, shall be made without the signed sanction of the committee of purchases, and all purchases amounting to $5,000 or more, shall in all cases be under the general supervision of said committee." The purchasing committee for the year 1928 consisted of councilmen Ozburn, Turner, Drennen, Reynolds, and Vaughn.

Following the submission of the said $5,-000 bid, a formal "requisition, " dated August 23, 1928, was made by the garage and shop department on the city purchasing agent, asking that said trucks be repaired by the Federal Corporation at a cost of $5,000. The requisition signed "B. J. Baxter, Head of the Department, per Conner, " and marked "O. K., J. T. Ozburn, Chairman, Frank H. Reynolds, J. E. Turner." Based upon this requisition, the purchasing agent ordered the Federal Corporation to proceed with the job, and notified the comptroller of the city of Atlanta of that fact. Three days after the order for repairing said trucks was issued, Thornton gave instructions "to deliver that car to Dr. Turner;" and Thornton believed "he actually got the car about August 31." It appears from the certificate of the secretary of state that Turner purchased said car on July 4, 1928. About August 4, 1928, Turner delivered to Federal...