Nelson v. State

413 S.W.2d 358, 219 Tenn. 680, 23 McCanless 680, 1967 Tenn. LEXIS 380

• Court: Tennessee Supreme Court
• Decided: February 24, 1967
• Status: Published

Opinions

Mr. Chief Justice BurNEtt

delivered the opinion of the Court.

The plaintiffs in error were convicted of accepting a bribe, and were sentenced to serve two (2) years in the State penitentiary for this offense. From this conviction they have seasonably appealed, briefs have been filed, arguments heard, and we now have the matter for disposition.

This record shows that on or about August 1, 1965, a citizen of Sullivan County was involved in an automobile accident. A Deputy Sheriff of that county investigated the wreck and found this citizen driving this car very much intoxicated. Later the Deputy Sheriff, who made the original investigation, was joined by plaintiff in error, Nelson, in the investigation. The first officer who arrived at the scene of this wreck called wreckers so that the wrecked automobiles could be removed from the highway. One of the wreckers called was owned and driven by the plaintiff in error, Wininger. The plaintiff in error, Nelson, arrived at the scene of the accident with Wininger. The citizen who was driving the automobile was placed in the patrol car and carried to jail.

Plaintiff in error, Nelson, informed the officer who made the original investigation that he would like to prepare the arrest report and the warrant against this citizen. The first officer who turned the matter over to Nelson said, “The best I recall I believe he made the statement that he had been waiting on that a long time, that Mr. Moore almost got him and another officer fired •in Johnson City, and he had been waiting a long time to catch him.” This statement was what plaintiff in error, Nelson, said to this officer.

Upon arriving at the jail, plaintiff in error, Nelson, prepared an arrest report disclosing that Moore, the citizen, had been arrested for DWI (driving while intoxicated). At that time a blank warrant was signed by plaintiff in error, Nelson, which also charged Moore with DWI. Nelson took his driver’s license, as is customary when one is arrested for D WI.

In the report which Nelson prepared, it was disclosed that the trial was set for 11:00 a.m. on the following Tuesday. Officer Hearne, who made the original investigation, appeared in court at that time and there was no one there. This officer testified that he saw Nelson later that afternoon and that he was told then that Moore had been tried on Monday, that is prior to the time the case was set, and that Moore was very pleased that he had been treated so nicely by the officers.

Mr. Moore, the citizen, testified that he had a wreck while drinking and that the plaintiff in error, Nelson, took him to jail; he said he was released from jail and went to see the plaintiff in error, Wininger, about his tow bill. Moore states that he told Wininger that he was very much interested in keeping the publicity down. Wininger then told him that he thought he might be able to help in this matter but that it would cost him $500.00. Moore put $500.00 on Wininger’s desk and picked up his driver’s license which had been confiscated by Nelson at the time of the original arrest.

Subsequent to this, an investigation took place by an agent of the Tennessee Bureau of Investigation. This agent testified that in the course of his investigation he discovered that Mr. Moore had been arrested on a charge of DWI and that the charge, had later been reduced to public drunkenness in the General Sessions Court. A Deputy Clerk of that court testified that Mr. Moore was fined $10.00 for public drunkenness. An officer in charge of the jail testified that he made an entry in the official log book of the county jail that Mr. Moore was arrested for DWI. This jail officer testified that this log book entry was made from the arrest report which was prepared by the plaintiff in error, Nelson.

The judge of the General Sessions Court at Kingsport testified that the plaintiff in error, Nelson, brought him an arrest warrant against Mr. Moore ■ on the morning following the arrest which charged Moore with public drunkenness. This apparently was an unusual occurrence inasmuch as Nelson had taken a cash bond from Mr. Moore without first contacting the General Sessions Judge about it.

The assignments of error are to the effect that (a) the court erred in failing to quash the indictment; (b) that the evidence preponderates against the verdict and in favor of the innocence of the accused; and (c) that the charge of the court was insufficient.

The argument with reference to failing to quash the indictment alleges there are some two or three charges in the one count and that such an indictment is faulty and thus it should have been quashed. When reading the indictment it does not say that plaintiffs in error were charged with violating any particular statute, but merely says that these two plaintiffs in error ‘ ‘ did unlawfully and feloniously, each acting in concert with the other, corruptly accepted or agreed to accept money in the amount of $500.00 with the corrupt or evil intent to refrain or desist from prosecution of Koy B. Moore, the said Roy B. Moore having been arrested by defendant Ralph. M. Nelson, a deputy sheriff, on a charge of driving while under the influence of an intoxicant. That said defendants, pursuant to the same common criminal enterprise, did corruptly promise to return to Roy B. Moore his drivers license and fix the case. ’ ’

The argument is made that this single count indictment more or less contains two or three different charges, charging both bribery and conspiracy, and it is argued that the Deputy Sheriff is indicted under sec. 39-804, T.C.A., and that the private citizen, Wininger, is indicted under sec. 39-803, T.C.A. As we read the indictment we do not so think. We have quoted the pertinent portions of the indictment above and cannot see how that this could possibly be true.

Section 39-803, T.C.A., makes it a felony for any person to offer a bribe to a peace officer, whereas the following-section, 39-804 T.C.A., makes it a felony for a peace officer to accept a bribe. The last section, of course, includes in it a reference to sec. 39-803, T.C.A., by saying that if any peace officer mentioned in that section does take a bribe he is so guilty. This indictment obviously is against the peace officer, Nelson, for accepting the bribe and against Wininger, a private citizen, as an aider and abettor to Nelson. In other words, the statutes as such do not make it a crime to give a private citizen money, but this private citizen must be in league with some of the peace officers mentioned in this statute; if the bribe is passed through the private citizen to the peace officer, then as a result of attempting to bribe this way this private citizen is merely an aider and abettor. This indictment does not charge Moore who would be indictable under sec. 39-803, T.C.A., by offering the bribe, but this indictment is against the peace officer and the private citizen who aided and abetted the peace officer in accepting this bribe.

Section 39-109, T.C.A., provides in effect that anyone aiding and abetting in any criminal offense shall be deemed as a principal. Thns it is that when we read the indictment, as above copied, we find it is charged that both Nelson and Wininger acted in concert and “corruptly accepted or agreed to accept money * * *” We have carefully read the charge of the court and this is exactly what the court charged the jury, that is, the law with reference to aiding and abetting, which it is.

It is next argued that the evidence preponderates against the verdict of the jury and in favor of the innocence of the accused. In arguing this assignment counsel takes the position that when Mr. Moore testified in this case he testified as to the facts as heretofore related but didn’t say anywhere that he was giving this money as a bribe or that that was the purpose of it at all. Since he didn’t say he was giving this as a bribe, he was merely giving it to cut down publicity, and it was not a bribe and the corpus delicti of such an offense had not been established and thus the case should be dismissed.

In the first place in establishing the corpus delicti, circumstantial evidence may be offered to show whether or not one was guilty of accepting a bribe. See Wharton’s Criminal Evidence, 12th Ed., Yol. 3, p. 469, and many cases there cited. Of course, when Mr. Moore testified he testified as to the facts; he didn’t have to call it a bribe, but it is from these facts of what he did and what happened whether or not we determine there was a bribe. As heretofore related, the facts show that he was very drunk and was arrested for driving while intoxicated, and it is perfectly obvious to all that this is an entirely different crime from being arrested for public drunkenness, and carries with it many greater penalties than that for public drunkenness. When the facts show that he gave Officer Nelson the money to cover a fine for public drunkenness and then he went and talked to the truck operator who told him it would cost him $500.00 which he laid down on the desk, and then picked up his driver’s license which the officer had left there; there is no other conclusion that a jury or common sense people could reach than that a bribe had been offered and accepted.

People just don’t go out and say I bribed John Jones to do so and so, John Jones being a peace officer. In the first place, if people do things of this kind they don’t talk about it; it is generally done in secret and they don’t expect anybody to find it out. In the second place, if they do such a thing they would be subject to indictment for offering such a bribe under see. 39-803, T.C.A., and thus it is from these circumstances the corpus delicti is established.

The argument goes on, of course, in behalf of these plaintiffs in error and it is stated that Mr. Moore was merely charged with public drunkenness and paid a fine for that; he had never actually been charged in court with drunk driving, or DWI; and that no crime had been committed. But from the facts as heretofore detailed the man was very drunk, caused this wreck and was charged as shown by these other papers in the first instance with DWI; then when it got before the Sessions Judge it was a mere charge of public drunkenness. Clearly it seems to us that such facts overwhelmingly support the conclusion that this money was paid so as to reduce the charge from that of DWI to public drunkenness.

There is no crime so far as we know in the Sections of the-Code herein referred to in this opinion which purport to make it a crime to reduce a charge, but this was a bribe for Nelson to do this and this statute makes it a crime when a peace officer accepts any gift or gratuity for his promise to refrain or desist from performing his duty. Under the facts of this case, it was clearly the peace officer’s duty to charge this man with the more serious crime. The conclusions hereinabove reached become more evident when it was shown by Officer Hearne that the plaintiff in error, Nelson, told him that he was anxious to prosecute Mr. Moore; that he would begin a proper prosecution against him for DWI; and then when Moore paid the $500.00 his records were attempted to be destroyed and a new record made. Under such circumstances the State has in our judgment precluded any other reasonable conclusion other than the plaintiffs in error were bribed.

We in this State have said many times — it would take an adding machine to add them up — in opinions for publication as well as opinions not for publication that the verdict of a jury when approved by the trial judge accredits the testimony of the State and resolves all conflicts in favor of the theory of the State. By the jury verdict, approved by the trial judge, the credibility of the witnesses is determined. Such a verdict displaces a presumption of innocence and creates here a presumption of guilt. It is only when the evidence so greatly preponderates against such a verdict that we will reverse for this reason. The burden here is on the accused who has been convicted to show us that the evidence so preponderates. In the instant case we certainly think that the evidence preponderates in favor of the finding of the jury. See Cooper v. State, 123 Tenn. 37, 138 S.W. 826, and many cases that may be found by Shepardizing tbe Cooper case.

It is very forcefully argued herein that tbe trial judge committed error when be charged tbe jury that a warrant was not necessary to charge tbe plaintiffs in error with an offense. We think this was a correct charge. Section 40-803 T.C.A., provides among other things that an officer “without a warrant” may arrest a person for a public offense committed or a breach of the peace threatened in his presence. This then brings up the question of whether or not this offense was committed in his presence. A crime is committed in the presence of an officer “Where an officer is apprised by any of his senses that a crime is being committed, it is being committed in his presence, so as to justify an arrest without a warrant.” Massa v. State, 159 Tenn. 428, 430, 19 S.W.2d 248, 250; McCanless v. Evans, 177 Tenn. 86, 91, 146 S.W.2d 354, 356. “This Court has many times held that where an officer of the law has direct personal knowledge from one or more of his five senses of sight, hearing, smell, touch, or taste that the suspected person is committing a crime in his presence, he may lawfully arrest him.” Day v. United States, 8 Cir., 37 F.2d 80, 81. So it is, the trial judge correctly charged the jury.

Here one Deputy Sheriff found the man drunk and that he had had this wreck and he wasn’t required to get a warrant then, but later a warrant charging drunk driving was prepared the way the officers do there. The proof showed that he was drunk and then when this $500.00' was laid down on the desk of Wininger this charge was changed. In other words, it certainly took the $500.00 to get the DWI down to public drunkenness — this was done through the concerted effort of the officer and the truck driver, who was aiding and abetting the officer. It was clearly an accepted bribe.

Then it is argued that the charge of the court was insufficient. We have carefully, as heretofore said, read this charge and feel that it unquestionably covers every point and was athorough and fair charge for both sides. The question of circumstantial evidence was correctly charged, and as to the effect of circumstantial evidence what the jury should find. The concluding statement with reference to circumstantial evidence was: “It is not sufficient that the proven circumstances coincide and render probable the guilt of the accused, but they must exclude every reasonable hypothesis than that of guilt. ’ ’

Then it is said that the court erred in not granting a special request concerning the law in words, as follows:

“I charge you that when a person is arrested he is said to be in custody, that a charge of an offense is made when a warrant is issued and signed by the proper issuing officer. When a person is arrested he is not yet charged until such time as a, warrant is issued for his arrest.”

This more or less was discussed in what we have said above in reference to the trial court charging the jury that a warrant was not necessary. This special request was clearly unnecessary for the protection of anyone, and the trial judge properly refused to give this charge. The conviction of these plaintiffs in error in no way depended'upon the giver of the bribe being charged with an offense. This question is not involved in this case. These men are charged with accepting this bribe, that is, the peace officer is charged with accepting the bribe and the private citizen with aiding and abetting the peace officer in doing it. That is the crime that is here being tried.

The charge as a whole fairly covers everything necessary to be charged in this kind of lawsuit. The fact that this officer failed to perform his duty and make the charge of DWI against Mr. Moore, as was originally charged against him as shown by the facts, and rednced this to pnblic drunkenness really has nothing’ to do with the lawsuit. The question is did they accept this money as a bribe to not do what their duty was. By the facts herein shown it is very clear that they did accept the bribe for this purpose. It is the accepting of the bribe with which, they are charged here, and not the failure to do something else.

After carefully considering the matter, we feel that the judgment below unquestionably is just under the facts here presented and it must be affirmed.