State v. Smith

48 A. 647, 72 Vt. 366, 1900 Vt. LEXIS 152

Opinion

Thompson, J.

I. It was not error for the trial court not to permit the respondent to examine jurors as to whether they were clients of W. A. Lord who was to be improved as a witness. Whether they were his clients or not in no way affected their competency as jurors so far as disclosed by the record. It was clearly within the discretion of the court to permit or refuse the inquiry. Nor was it error for the court not to permit the respondent to examine the jurors “as to their belief in the prohibi tory law and as to whether they would require a different degree of faithfulness in the discharge of a duty under that law than they would in the execution of duty under any other law or process.” Such inquiry could have no tendency to determine the question whether the jurors were legally qualified to try the respondent for the crime of bribery with which he was charged. The refusal of the inquiry was clearly within the discretion of the court and so far as the record shows such discretion was properly exercised. 1 Thomp. on Tr., secs. 73, 101; Com. v. Buzell, 16 Pick. 154; State v. Flint, 60 Vt. 314; Thomp. and Merriam on Juries, secs. 193 and 245, (6).

II. It was a material question whether the respondent had in his possession a complaint and properly signed warrant against Mrs. Bianchi at the time he took the alleged bribe from her and during the negotiations leading up to it. When the complaint and warrant were delivered to him July 4, 1899, the warrant was not signed, and against his exception, the State was permitted to show by the witness,, Gordon, that at the time of such delivery, he requested the respondent to have the warrant signed by the clerk of the City Court of Montpelier. Gordon was the clerk of the state’s attorney, and in what he did, acted for him. The subsequent declarations of the respondent put in evidence tended to show that he had such a warrant properly signed at the time in question. This testimony of Gordon tended to show how the respondent came to have the warrant and in connection with his declarations bore upon the probability of its being properly signed. Hence it was not error to admit it.

III. The bribe was taken by the respondent from Mrs. Bianchi July 8, 1899. Subject to the exception of the respondent, the State was' permitted to introduce evidence tending to prove that he went to the house of Mrs. Bianchi July 4, 1899, and then and there informed her that he had in his possession a search warrant to search her premises for the purpose of finding intoxicating liquor therein kept in violation of law, and that he then and there entered into negotiations with her to pay him $100 not to serve the warrant, and that when he left her house on that occasion the matter of such payment was left open for her consideration.

The specific ground of this exception was that what transpired between Mrs. Bianchi and the respondent July 4, was not connected with the transaction of July 8. But this contention is contrary to the facts of the case. The evidence tended to show that the negotiations of the respondent with Mrs. Bianchi for the payment of the bribe were resumed July 7, and finally consummated in what occurred July 8, when a bribe of $75 was finally paid him by her and accepted by him. What occurred between them July 4, and from thence on until the money was paid July 8, was part of the transaction, and together constituted it. It is always permissible to show the various steps taken by the accused in committing the crime with which he is charged.

IY. The two counts in the indictment were for one and the same offence. The respondent excepted to the refusal of the trial court to compel the State to elect upon which count it would rely for conviction. It was clearly within the discretion of the court to grant or deny this motion. Its action was in accord with the established practice' of this State. 1 Bish. Cr. Proc. (1st ed.) secs. 205 and 208.

YI. At the time in question, the respondent was a deputy sheriff, and in what he did in respect to the warrant against Mrs. Bianchi, he was acting as such deputy sheriff.

In charging the jury the court in speaking of bribery, among other things said : “ Bribery is the receiving or offering any undue reward, by or to any person whomsoever, whose ordinary business or profession relates to the administration of public justice, in order to influence his behavior in the office, and to incline him to act contrary to his duty and the known rules of honesty and integrity,” to which the respondent excepted. Yermont Statutes, sec. 5086, under which the respondent was indicted, provides that “An executive, legislative or judicial officer,who corruptly accepts a gift or gratuity, or a promise to make a gift or to do an act beneficial to such officer, with the understanding that he will be influenced thereby in any official act, shall forfeit his office, be forever disqualified to hold any public office, trust or appointment under the State, and be imprisoned in the state prison not more than ten years, or fined not more than one thousand dollars.” The respondent contends that the definition of bribery given by the court was erroneous, because it does not state that the gift or gratuity must be accepted with a corrupt intent and with the understanding that the party accepting the same will be influenced thereby in an official act, and that these are essential elements of the offence under the statute. The definition used by the court is that given in Bouvier’s Law Dictionary and is supported by authority. 1 Buss, on Crimes *154; 2 Bish. Or. Law (4th ed.) sec. 95. It includes corrupt intention, and the acceptance of the gift or gratuity with the understanding that the party accepting it shall thereby be influenced in his official acts. The court further instructed the jury in substance that, in order toponvict, they must be satisfied beyond a reasonable doubt that the respondent received the money with the corrupt intent and with the understanding that he should be corruptly influenced thereby in his official acts as such deputy sheriff. The charge on this point was so explicit that the jury could not have been misled by it into finding the respondent guilty on less proof than required by Y. S., see. 5086. This exception is not sustained.

YII. While instructing the jury, the court, referring to the testimony of Gordon in respect to a complaint and blank warrant produced by the respondent on trial, said, “ that he thinks the complaint and blank warrant shown him upon the stand was the one that he made out and handed to this respondent for that purpose. He says he is not positive of that.” To this the respondent excepted and now contends that it was a misstatement of Gordon’s testimony not cured by ,, the further instruction to the jury that they were to take the testimony as they remembered it and not as the court stated it, as it might be mistaken about it. When interrogated as to the identity of the blank warrant, Gordon first said that he did not know whether or not it was the one he gave the respondent Julyé; upon further inquiry he said “ I think that is the one — I am satisfied now.” Q. “ You are satisfied now?” Ans. “It is my judgment that it is the one, but I wouldn’t be positive.” Again, a few questions later, he said, “ I think it is. I am satisfied that it is.” Nowhere in the testimony was he more positive in regard to the identity of the paper in question. Taken as a whole, the court correctly stated to the jury the legal tendency of this evidence, and this exception cannot avail the respondent, as the weight of the testimony was left to the determination of the jury.

VIII. The respondent excepted to the charge of the court as to what would constitute an acceptance by the respondent of the money claimed to have been paid him by Mrs. Bianchi as a bribe. The instruction was in substance that, if she paid him the money and passed it from her control to his, and he assumed control of it, understanding at the samé time that he accepted it, and that it thereby had passed from her control into his, it would constitute an acceptance by him. In this there was no error. The evidence tended to show that he accepted and assumed control of the money.

IX. The conduct of the respondent, when surprised by Sheriff Graves and W. A. Lord, with the money on the table before him, and the fact that he did not then deny having taken it, was in evidence, and the court properly charged the jury that it bore upon the question of the acceptance of the money by him. The exception to this part of the charge was general and the court had a right to understand that the exception was to the law involved in the instruction, and not to the language used in narrating tire occurrence to the jury. Hence this exception cannot avail the respondent, and it is not necessary to decide whether the court made an improper inference from the evidence in stating this phase of the case to the jury.

X. Shortly after the respondent was thus surprised by Graves and Lord, they were left alone in the room with him, and he then said to them, “Now we are all alone, there is nobody here, and can’t we fix this up some wayand Graves replied, ‘ • George, there has been too much fixing up, and I don’t know of any wayand Lord replied that he didn’t know of any way to compromise crime. The court charged the jury that what the respondent thus said was evidence tending to prove his guilt, to which he excepted. The respondent now contends that this instruction was erroneous because it was for the jury to say whether this evidence tended to show guilt. It is for the court to instruct the jury as to the legal tendency of evidence and for the-jury to determine its weight in proving or disproving the issue on trial. The evidence in question clearly tended to prove the guilt of the accused, and the instruction was correct.

Had Lord and Graves taken money, or a gratuity or reward, or an engagement therefor, upon an agreement or understanding, express or implied, to compound or conceal the crime which the respondent had committed, they would have become guilty of the crime of compounding felony, as the respondent’s ofience is a felony. Y. S. secs. 5165, 5166. It was not error for the court to say to the jury that if Lord, Graves and the respondent had, in fact, thus fixed up the crime, hushed it up by a division of the-money or in any other way, they would all of them have committed a crime by so doing. The court stated the law correctly, and it is not contended otherwise. State v. Fournier and Cox, 68 Vt. 271. The fact that the respondent thus proposed the commission of another felony to conceal the one already committed by him, bore upon the weight of this evidence and was proper for the jury to consider.

XII. After verdict and before judgment, the respondent moved in arrest of judgment, which was denied, and to this ruling he excepted. The only ground now urged in support of that motion is that the second count is insufficient. The evidence tended to support both counts of the indictment. No question is made but that the first count is good. The verdict was general. The verdict' being general, it is to be understood that the jury - found the respondent guilty on all the counts. In such case, the rule is that if any count is sufficient, judgment will not be arrested. State v. Downer, 8 Vt. 425; State v. Davidson, 12 Vt. 303; State v. Hooker, 17 Vt. 669; State v. Bean, 19 Vt. 530; State v. Bugbee, 22 Vt. 32; State v. Wheeler, 35 Vt. 265; State v. Ward, 61 Vt. 194; 2 Ency. Pl. and Pr. 801; Com. v. Holmes, 17 Mass. 335. The motion in arrest of judgment was, therefore, properly overruled.

The above opinion was written by Thompson, J., but the Court were not agreed in reference to points Y and XI, as written by him, and since his death the following has been agreed to in respect thereto. Therefore,

Pee cueiam.

Y. The respondent insists that the court should have sustained the motion for a verdict, for that “the evidence does not substantiate the first count in that it was not shown that the respondent had a warrant.” There was testimony tending to show that fact, viz., that of M. M. Gordon, who testified that he gave him an unsigned one with directions to procure the signature of the proper authority to it, and testimony tending to show the respondent’s declarations to Mrs. Bianchi, that he had a warrant to search her premises. This was testimony tending to show the existence of such a warrant in the possession of the respondent. The motion was properly overruled.

XI. (a) The respondent presented ten requests for instructions. Numbers 1, 8 and 9 are not in the record and are therefore waived. The substance of the requests, numbered 2, 3, 4, 5, and 10, is that the jury must be told that in order to convict they must find that at the time when, etc., the respondent'had a legal warrant, duly issued by competent authority, which it was his duty to serve and return as therein commanded; that he accepted and received from one Bianchi the $75 as a gift in consideration, and with the understanding between them, that he would be influenced thereby to neglect his official duty and not serve the warrant and that he was so influenced. In response to these requests, the jury were told that they must be satisfied beyond any reasonable doubt that the respondent had a warrant to search Mrs. Bianchi’s premises, that he accepted the money, the $75, and that it passed into his control to influence his action as an officer in the matter of the service of the warrant, and that he accepted the money with the felonious intent to be corruptly influenced thereby in the discharge of his official duties in serving the warrant. This was a full compliance with the requests.

(b) The testimony did not require a compliance with the sixth and seventh requests. There was no testimony in the case tending to show that the transaction was a decoy, nor that Bianchi, Lord, and Graves entered into a conspiracy to cause the respondent to commit the crime. He was not lured into a net or snare. He, himself, set the trap and it does not relieve him from the effect of his crime, that the audience that witnessed its springing was larger than he anticipated and had foreknowledge of the scene to be witnessed. The questions involved in these requests were abstract ones, and were therefore properly ignored.

Judgment that there is no error in the proceedings of the County Court a/nd thaft the respondent take nothing by his exceptions. Let sentence be pronounced and execution done.