People v. Powell

This is an appeal from a judgment of imprisonment upon a conviction of the crime of bribery, and from an order denying defendant’s motion for a new trial.

The information charged defendant with being, at all times therein mentioned, a duly appointed, commissioned and acting police officer of the city of Long Beach, i. e., an “executive officer,” and was in two counts, the first count, by proper and apt allegation, charging the crime of extortion, while the second count charged the crime of bribery— opening with the following statement: “And for a further and separate cause of action, being a different statement of the offense set forth in Count I hereof,” etc. (Italics ours.) A demurrer, both general and special in character, was interposed to the information and by the court overruled. On the issues thus presented the case was tried.

The jury returned two verdicts, one finding the defendant guilty of extortion as charged in count one, and the other finding him guilty of bribery as charged in count two. Defendant moved in arrest of judgment and for a new trial,

Upon the submission of the case as made, the learned trial judge gave the following instruction, among others, to the jury: “The defendant in this ease is accused by the information filed herein of two separate offenses, to wit: the crime of extortion in count one thereof, and the crime of bribery in count two thereof. An information may charge two or more different offenses connected together in their commission, or different statements of the same offense, or two or more different offenses of the same class of crimes or offenses under separate counts. The defendant may be convicted upon either of the offenses charged, and each offense upon which the defendant is convicted must be stated in the verdict. You may find the defendant guilty or not guilty upon each of the separate counts of the information; and if you believe that count one is a different statement of the same offense as charged in count two, you may as to said count one and count two find the defendant not guilty upon both, guilty upon both, or guilty upon one and not guilty upon the other.” (Italics ours.)

Appellant claims: (1) That the giving of the foregoing instruction was error; (2) that the two verdicts rendered are inconsistent, and hence that a judgment entered on either cannot stand; and (3) that the complaining witness was an accomplice, upon whose uncorroborated testimony defendant cannot be convicted.

As to the information, both counts were legally sufficient. [1] Being connected together in their commission the offenses charged were, by virtue of section 954 of the Penal Code, properly joined in the information. The evidence relied on to convict upon both was the same, founded upon the same incident and referred to but one transaction occurring on the day charged in the information. Yet while it was proper thus to charge defendant with two offenses in separate and distinct counts, he could not be convicted of the crime of extortion under section 518 of the Penal Code and also of the crime of receiving a bribe under section 68 of the same code; although, for reasons which will presently appear, we think he could be convicted of the

[2] As to the preliminary statement with which the second count opens, and which we have italicized above, we think it entirely immaterial, being but a legal conclusion of the pleader, and for that reason it may be treated as surplusage. It adds nothing to, nor does it take anything from, the essential averments of the information. Such being the case, the language of the court in People v. Piner, 11 Cal. App. 542 , 546, [ 105 Pac. 780 ], may be considered applicable here: “There is no claim put forward here that section 954 of the Penal Code, as amended in 1905, violates any provision of the constitution, nor can we see how such a claim could be sustained if it were urged. As we have suggested, there is no ground for apprehending that any injury would result to a defendant from the method of criminal pleading authorized by section 954, for only one set of facts and circumstances, directed to a single act or event, could be proved, and, of course, it would not only be competent, but absolutely necessary, to prove those same facts and circumstances where but one offense was charged. Therefore, we can think of no principle forbidding the legislature to authorize the setting out of two distinct offenses in as many counts in cases where the circumstances under which a criminal act is committed are such as to inspire in the prosecuting officer serious doubt as to which of two offenses the evidence would show had been committed. Such a method, while obviously innocuous in its effect upon any of the rights of the accused, must result in a just administration of the criminal law. For where, as under the old method, the result of not proving the specific charge would be the acquittal of the accused and to cause another trial of the same facts with its attendant trouble and expense, assuming that once in jeopardy and former acquittal could not be successfully pleaded at the subsequent trial, under the present method the jury, under the court’s instructions, could return a verdict of guilty of that offense of the two charged which the evidence disclosed had been committed, and thus there would be avoided, in a large measure, the mistrials which too often result from a want of correspondence between the proof and the allegations of the indictment or information.” (Italics ours.) That

This brings us to the consideration of the instruction above quoted, and which is objected to by defendant. The instruction was clearly erroneous; but, for reasons presently to be stated, the error, dn our opinion, was without prejudice. Defendant having been legally charged with two separate offenses relating to “the same act, transaction and event,” the proof whereof being dependent upon the same evidence, he could not, in the instant case—except as we shall hereafter see—-lie legally found guilty of both; but, after hearing the evidence, the jury, “under the court’s instructions, could return a verdict of guilty of that offense of the two charged which the evidence disclosed had been committed.” (People v. Piner, supra; People v. Warriner, 37 Cal. App. 107 , [ 173 Pac. 489 ].)

The next point urged by appellant is the inconsistency of the verdicts. If the defendant was guilty of the crime of extortion, the crime consisted in obtaining from the complaining witness the latter’s property, viz., a certain sum of money, with his consent, induced by a wrongful use of

Where property is obtained by extortion, the consent of the person who parts with the property is not free and voluntary, but is, in a measure, coerced, i. e., induced by the wrongful use of force or fear or under color of official right. Where a bribe is actually received, the property or money given by the briber is not obtained from him through any coercion of his will. It is given and received upon agreement or understanding that the official conduct of the person receiving it shall be influenced thereby. [3] Prom this it follows that a defendant, if he be guilty of receiving a bribe, cannot as a result of the same transaction likewise be guilty of the offense of extortion. Por this reason we think the court erred in instructing the jury that they could find the defendant guilty of the two crimes as charged in the two counts of the information. But this error, for the reasons we are now about to state, did not involve a miscarriage of justice, within the meaning of section 4½ of article VI of the constitution.

[4] Under section 518 of the Penal Code one may be guilty of the crime of asking or of receiving a bribe, or of asking and receiving a bribe. In other words, bribery may

There is sufficient evidence, we think, to sustain that part of the verdict which, in effect, finds the defendant guilty of asking a bribe. As is usual in this class of cases, the defendant did not boldly and in direct language ask a bribe. His words and acts, however, as testified to by the complaining witness, unmistakably carried the import that it was a bribe that he was asking. The complaining witness testified that defendant asked him if he had any money with which to furnish bail. He testified that he took a

For these reasons we conclude that there is sufficient evidence to justify that part of the verdict which finds the defendant guilty of asking a bribe; that the crime of asking a bribe is committed the moment the bribe is asked and before any money or other thing of value is received by the one asking it; that the crime of asking a bribe may be consummated before any bribe money is obtained, and, therefore, before the existence of the transaction that may constitute either the crime of receiving a bribe or the crime of obtaining property by extortion—whether it be one or the other depending upon whether the money or property is given on an agreement or understanding that the official conduct of the person receiving it is to be influenced thereby, or is obtained through a consent induced by the wrongful use of force or fear or under color of official right. It follows, therefore, that there is no inconsistency between the crime of extortion—which we are inclined to think was the crime committed by the defendant when he actually received the money from the complaining witness—and the crime of asking the bribe.

[7] Under these circumstances, we think, it logically and necessarily follows that the complaining witness was not an accomplice in the crime of asking a bribe, and, therefore, defendant can be convicted of that crime upon the sole testimony of that witness. (People v. Beggs, supra.) Under section 1111 of the Penal Code, an accomplice is defined to be one “who is liable to prosecution for the identical offense charged against the defendant upon trial in the case in which the testimony of .the accomplice is given. ’ ’ As we have seen, among other offenses charged against the

Viewing the case in the large and upon the entire record before us, for the reasons above set forth we cannot say that there has been a “miscarriage of justice” herein, within the meaning of section 4½ of article VI of the constitution.

Judgment affirmed.

Finlayson, P. J., and Weller, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on January 12, 1921, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 14, 1921.

All the Justices concurred.