Value v. State

• Decision Date: 04 November 1907
• Citation: 105 S.W. 361,84 Ark. 285
• Parties: VALUE v. STATE
• Court: Arkansas Supreme Court

105 S.W. 361

84 Ark. 285

VALUE v. STATE

Supreme Court of Arkansas

November 4, 1907

Appeal from Jefferson Circuit Court; Antonio B. Grace, Judge reversed.

Judgment reversed and cause remanded for new trial.

Nixon & Shaw, for appellant.

Having charged the corrupt use of "silver and paper money," it devolved upon the State to prove the corrupt use of one or the other. 68 Ark. 583; 60 Ark. 141; 58 Ark 242; 71 Ark. 415; 62 Ark. 538.

William F. Kirby, Attorney General, and Dan'l Taylor, Assistant for appellee.

There is a fatal variance between the allegations and the proof in this, that the indictment alleges the acceptance and receipt by appellant of "fifteen dollars, lawful money of the United States, paper money and silver money," etc., whereas the proof shows that he received "five dollars," without showing that it was either paper or silver money or money of the United States. 71 Ark. 415; 62 Ark. 538; 60 Ark. 141; 37 Ark. 443; Id. 445.

MCCULLOCH, J., HILL, C. J., dissenting.

OPINION

MCCULLOCH, J.

The defendant, Robert Value, appeals from a judgment of conviction for the crime of bribery under an indictment charging him, while being a school director of a certain district in Jefferson County, with having received a bribe of "fifteen dollars, lawful money of the United States," quoting from the indictment, "paper money and silver money of the value of fifteen dollars, to influence him, the said Robert Value, as such school director, to give his consent, support, influence and vote to the employment of said Geneva Lucas as a teacher," etc. The evidence adduced at the trial tended to show that the defendant received a, bribe of five dollars, which was paid to him in money for the purpose named in the indictment; but there was no proof of the kind of money. The witnesses merely state that five dollars were paid to the defendant. This is relied on by counsel as a fatal defect in the proof, and is urged as grounds for reversal of the judgment. The Attorney General confesses error on this ground.

It has been held by this court that it is unnecessary in an indictment for larceny of money to describe it as "money of the United States," but that, having alleged it was money of that kind, it must be proved as alleged. Marshall v. State, 71 Ark. 415, 75 S.W. 584. The same degree of certainty in the proof has been held to be necessary under indictments for embezzlement, for obtaining property under false pretenses and for burglary. Starchman v. State, 62 Ark. 538, 36 S.W. 940; Wilburn v. State, 60 Ark. 141, 29 S.W. 149; Treadaway v. State, 37 Ark. 443.

In Blackwell v. State, 36 Ark. 178, involving an indictment for unlawful sale of liquor within three miles of an incorporated institution of learning, it was held unnecessary to allege the fact of the incorporation of the institution; but, having so alleged, the State must prove it.

It is not essential, in an indictment for offering or receiving a bribe, to set forth a particular description of the money or other thing of value offered or received. Leeper v. State, 29 Tex. Ct. App. 154, 15 S.W. 411; Watson v. State, 39 Ohio St. 123; McClain on Crim. Law, §§ 901-2. All that is necessary in that respect is that it should be described in general terms: but it is essential to the validity of the indictment that it should name the inducement for the official misconduct, for that is apart of the offense, and must be set forth in the indictment. 5 Cyc. p. 1043; People v. Ward, 110 Cal. 369, 42 P. 894; State v. Howard, 66 Minn. 309, 68 N.W. 1096; State v. Stephenson, 83 Ind. 246; United States v. Kessel, 62 F. 57.

"It is necessary," says the Supreme Court of Minnesota in the case just cited, "to allege directly, and not by way of recital or argument, the official character or capacity of the person to whom the offer was made, * * * the name of the thing offered (if known), the fact that it was of value and that it was offered with intent to influence the official action of such person." State v. Howard, supra.

Now, it follows from what we have said, and from the authorities cited, that it was unnecessary to allege in the indictment that the money paid to the defendant was "lawful money of the United States, paper money and silver money;" but, having been so alleged, it must be proved.

Mr. Clark in his Work on Criminal Procedure, p. 182, lays down the following rule, which seems to be fully sustained by the authorities, with reference to what may or may not be rejected as surplusage: "Care must always be taken to distinguish between averments which are either wholly foreign and immaterial, or which, though not wholly foreign, can be stricken out without destroying the accusation, and averments which, though they might have been omitted, enter into the description of the offense. If the whole averment may be rejected without injury to the pleading, it may be rejected; but it is otherwise with averments of essential circumstances stated with unnecessary particularity. No allegation, though it may have been unnecessary, can be rejected as surplusage if it is descriptive of the identity of that which is legally essential to the charge. The application of the rule may often seem to defeat the ends of justice, but on the whole, the rule is a salutary one, and is too firmly established to be shaken or disregarded in particular cases."

In the crime of offering or receiving a bribe, the identity of the thing offered or received is the inducement for the unlawful act, and is a part of the crime itself. The allegation concerning the identity of the tiling offered or received cannot be wholly rejected, but it falls within the rule laid down above, and must be sustained by proof.

We are therefore of the opinion that the proof fails to sustain the allegation of the indictment, and for this reason the judgment must be reversed, and the cause remanded for a new trial. It is so ordered.

DISSENT BY: HILL

HILL C. J., (dissenting). The indictment in this case charges that the defendant was bribed with "paper money and silver money of the value of $ 15.00." The State proves that he was bribed with $ 5.00, without proving the kind of money. The Attorney General confesses error, and the majority of the court sustain that confession, and I dissent.

It was unnecessary to allege the kind or quantity of money or thing of value used as a bribe. It was merely necessary to allege that some money or thing of value was used as a bribe. Leeper v. State, 29 Tex. Ct. App. 154; Watson v. State, 39 Ohio St. 123. This is conceded in the majority opinion.

The question then narrows to whether the unnecessary allegation as to the kind of money is required to be proved. The rule as to what is surplusage and what is material is stated by Mr. Clark in the quotation followed in the majority opinion, and is stated more clearly in the Encyclopaedia of Pleading & Practice as follows:

"Where the offense is charged with unnecessary minuteness or particularity, all the facts alleged which, are descriptive of the offense must be proved with the minuteness and particularity alleged, because such minute details and particulars have been made essential, although, if the averments be of mere facts which might have been omitted without detriment to the indictment, they may be considered as surplusage, and a variance therefrom will not be fatal." 22 Enc. Plead. & Prac. 557-8.

This allegation of the kind of money used as a bribe might. have been omitted without detriment to the indictment, and therefore its presence in the indictment is a mere surplusage, and a variance from such surplusage in the indictment and the proof is not fatal.

If the rule is properly applied, then the variance here is not material, and such has been the holding in every bribery case in the United States where a variance is claimed upon an unnecessary allegation, as here; in all cases the variances in proof from unnecessary matter in indictment have been held immaterial. State v. Meysenburg, 171 Mo. 1, 71 S.W. 229; Diggs v. State, 49 Ala. 311; Commonwealth v. Donovan, 170 Mass. 228.

And on a similar question a variance was held immaterial in a strong opinion in Johnson v. People, 36 Colo. 445, 84 P. 819, where the authorities on the subject are fully reviewed.

This case will be the first bribery case following a rule which should be "more honored in the breach than in observance." Even if the rule invoked is applied, then the variance, while erroneous, is not prejudicial error, according to modern judicial thought upon the subject. The modern rule on the subject of variance is thus stated: "A variance is not now regarded as material unless it is such as might mislead the defense, or might expose the accused to the danger of being put twice in jeopardy for the same offense." 3 Rice on Crim. Ev. § 121.

Again it is said: "The strict technical rules formerly governing this subject have been greatly relaxed, if not altogether abrogated, by statutory enactment or by the liberal spirit of the modern courts of criminal jurisdiction. In determining whether a variance is material, the question to be decided is, does the indictment so far fully and...