Wood v. State, 22221
| Decision Date | 26 November 1963 |
| Docket Number | No. 22221,22221 |
| Citation | 134 S.E.2d 8,219 Ga. 509 |
| Parties | Douglas WOOD v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
For any particular act or conduct to constitute a criminal offense the statute defining the offense, or some other law of the State must in express terms declare such conduct to be a violation of the law or provide that it be punished as a criminal offense.
Douglas Wood was indicted for the offense of bribery and tried in Fulton County. Before entering upon the trial the defendant filed general and special demurrers to the indictment and a plea in abatement. The indictment reads: that on July 16, 1962, the accused 'did unlawfully receive of and from Braxton C. McDow, one thousand seven hundred and fifty dollars in money of the value of $1,750.00 as a present and reward given by the said McDow to influence the official behavior of the said accused in the discharge of his official duties, accused being then and there a legally qualified alderman and member of the Board of Aldermen of the City of Atlanta, a municipal corporation, the said reward and present being given by said McDow to influence the behavior of accused in the matter of the adoption by the said Board of Aldermen of a certain municipal ordinance entitled: An Ordinance to amend the 1954 Zoning Ordinance of the City of Atlanta by changing from R-5 (Residential District) to A-1 (Apartment) District, property fronting 300 feet on the east side of Holly Street, Northwest, beginning 200 feet north from the corner of Simpson Street, being in Land Lot 146 of the 14th District Fulton County, Georgia, said giving and receiving of said money being done in pursuance and fulfillment of an understanding and agreement between the accused and said McDow, that such present and reward would be so given to accused for his behavior in said matter above stated and his efforts in aiding and helping said McDow in getting the above Ordinance adopted by said Board of Aldermen, which matter of the adoption of said proposed Ordinance was then and there depending before said Board of Aldermen; the said McDow having obtained a purchaser for said property referred to in said Ordinance contingent upon securing A-1 (Apartment) zoning for said property * * *'
The plea in abatement was upon the ground that the defendant, as a State official under Ga.L.1943, pp. 284, 287 (Code Ann. § 40-1617), was entitled to notice that an indictment would be sought against him and the privilege of appearing before the grand jury and presenting his defense, which right and privilege was denied him.
The court overruled the demurrers and plea in abatement. The jury returned a verdict finding the defendant guilty. The defendant filed his motion for new trial which, after having been amended, was overruled. The defendant excepted and brought the case here for review. In the bill of exceptions the overruling of the demurrers, the striking of the plea in abatement and the overruling of the amended motion for new trial are assigned as error.
William Hall, Atlanta, for plaintiff in error.
Wm. T. Boyd, Sol. Gen., J. Walter LeCraw, Asst. Sol. Gen., Atlanta, for defendant in error.
The general demurrer to the indictment is on the ground 'that the allegations set forth therein do not charge this defendant with any offense against the penal laws of the State of Georgia.' It is well settled: Moore v. State, 94 Ga.App. 210, 211, 94 S.E.2d 80. The defendant was, as the State frankly admits, indicted under Code § 26-4101 although the prosecution contends he is subject to be punished according to the provisions of the Act of 1949 (Ga.L.1949, p. 274) embodied in § 26-4102 of the unofficial Code of Georgia.
For any particular act or conduct to constitute a criminal offense the statute defining the offense, or some other law of the State must in express terms declare such conduct to be a violation of the law or provide that it be punished as a criminal offense. In the latter event the conduct in question is by necessary implication designated a crime.
Code § 26-4101 reads: 'Bribery is the giving or receiving any undue reward to influence the behavior of the person receiving such reward, in the discharge of his duty in any office of government or of justice.' The Act of 1949 provides: 'If any person shall, directly or indirectly, give or offer to give any money, goods, or other bribe, present, or reward; or give or make any promise, contract, or agreement for the payment, delivery, or alienation of any money, goods, lands, or other bribe; or use any promises, threats, persuasions, or other like sinister, unfair, or fraudulent practices in order to obtain or influence the opinion, judgment, decree, or behavior of any member of the General Assembly or officer of this State, referee, or arbitrator, in any matter or cause pending, or which shall pend before him, such person, and the officer, referee, or arbitrator, who shall accept or receive such bribe; shall be guilty of a felony, and upon conviction shall be punished by imprisonment in the penitentiary for not less than one year nor more than 20 years.'
Code § 26-4101 does no more than provide that certain conduct constitutes a species of bribery, but does not declare such conduct to be a criminal offense and prescribes no punishment for the same. Obviously, standing alone the statute does not define a crime and can not be the basis of a prosecution for bribery. It is equally apparent that the Act of 1949, which in no way refers to Code § 26-4101 or any of its provisions, does not in any manner purport to prescribe the punishment for bribery as defined in the Code section, but on the contrary defines another species of bribery that can be committed only by a member of the General Assembly, an officer of this State, a referee, or an arbitrator (in which categories the defendant does not belong) and provides punishment for that type of bribery; nor does it aid Code § 26-4101 or supply its definiencies in failing to declare bribery as therein defined to be a criminal offense, or the omission of Code § 26-4101 to provide punishment for the type of bribery to which it refers.
In reaching this conclusion we have considered the cases of Payne v. State, 153 Ga. 882, 113 S.E. 446, and Taylor v. State, 174 Ga. 52, 162 S.E. 504, relied upon by the State as authority for the position that the Code section and the Act of 1949 should be construed together and that the Act provides the punishment for bribery of all species including that defined by Code § 26-4101.
It is well to note that when the two cases were written §§ 270 and 271 in the Code of 1910 were identical in language with Code §...
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