Majority
Headnote
[1] 'Criminal Law — Bribery — Indictment in Sister State ■— Assumption op Existence — Contradiction — Evidence. — In this prosecution for bribery, in which the defendant was charged with allowing a person indicted in a sister state, to escape in consideration of the payment of a certain sum of money, the evidence having shown that defendant and another deputy sheriff, in making the arrest, assumed the existence of an indictment in such sister state, and under that pretension secured the money in question to influence their official action, defendant was in no position to dispute the fact that such indictment had been returned and was pending; and defendant was not prejudiced by the action of the trial court in permitting the prosecution to place in evidence a purported copy of the indictment in the sister state, even though the prosecution in laying the foundation for the introduction thereof failed to set forth that the attestation thereto was in due form.Appallent was indicted, together with one Lips, for the crimes of bribery and extortion. The count charging extortion was dismissed and after trial the defendant was found guilty by a jury of the crime of bribery. From the judgment pronounced upon this conviction and a denial of the defendant’s motion for a new trial this appeal was taken. Anderson and Lips were detectives in the employ of the county of Los Angeles. The indictment charged that one L. M. Furay had been indicted for grand larceny in the state of Texas; that Lips and Anderson arrested him in Los Angeles county and then allowed him to escape in consideration of a pAyment of ten thousand dollars made to the officers by Mrs. Furay. The testimony admitted was amply sufficient to sustain these allegations. Upon similar evidence introduced in the case of People v. Lips it was held in the decision upon appeal ( 59 Cal. App. 381 [ 211 Pac. 22 ]) that the record established a case of bribery under the provisions of section 68 of the Penal Code, which denounces agreements by an officer to receive a bribe “upon any agreement that his vote, opinion or action upon any matter then pending” before him shall be influenced thereby.
[1] In the instant case the principal reason urged for a reversal is that the trial court permitted the prosecution
We are of the opinion that the defendant is in no position to dispute the fact that the indictment had been returned and was pending. The evidence shows that he, together with Lips, assumed the existence of an indictment against Puray, and under that pretension, secured ten thousand dollars from Mrs. Puray to influence their official action. The court of appeals of Texas in deciding a similar case said: “It is insisted by counsel for defendant that the arrest and custody of John Gable by the defendant was without authority of law, and that, therefore, it was no offense for the defendant to accept a bribe to release him. We do not so understand the law. It was by virtue of his official authority that the defendant arrested and held John Gable. It matters not whether the arrest and custody were legal or illegal; the said Gable was a prisoner in the custody of the defendant, a peace officer, and was permitted by the defendant to escape, in consideration of money paid him to effect such escape. We are of the opinion that, in a prosecution for this offense, it is not permissible for the defendant to question the legality of his custody of the prisoner.” (Moseley v. State, 25 Tex. App. 515 [ 8 S. W. 652 ].)
While the point presented by appellant was not expressly decided in its companion case (People v. Lips, 59 Cal. App. 381 [ 211 Pac. 22 ]), one of similar import was passed upon. It was there held that the fact that Lips and Anderson had no actual authority to arrest Puray was unimportant. No warrant of arrest was placed in their "hands or was issued. It was there indicated that the following quotation from 4 Ruling Case Law, 183, paragraph 13, is a substantial state
[2] Appellant calls attention to evidence indicating that he was never directly instructed by his superior officer to apprehend Furay. Regardless of this, the inference was amply warranted that he intended his acts in accompanying Lips and assisting him to be regarded as official and that he himself considered that throughout the transaction he was acting as a deputy sheriff. If it be intended in referring to Anderson’s testimony to the effect that he did not know of the reasons for the trips that were taken in negotiating with Mrs. Furay for the money and securing it, and the other evidence which might indicate that he had no official part in the matter, to maintain that the evidence is insufficient to connect him with the offense, we must disagree with appellant’s counsel. Mrs. Furay testified that she stated to Anderson that she thought it was awful “to take that money away from the boy, because it meant everything to him,” and he replied, “Yes, but it is the best way to fix it.” From this evidence and the appellant’s conduct in assisting Lips throughout, the jury were justified in concluding that Anderson acted knowingly. If so, the facts in the instant case did not differ in any material respect from those presented against Lips. It is immaterial that the element of criminal intent on the part of Anderson was established by more indirect evidence than was that of Lips. Anderson’s connection with this offense of bribery was established. He was shown to have agreed, for a cor
The judgment is affirmed.
Finlayson, P. <T., and Works, J., concurred.
Cases cited
- People v. Lips 59 Cal. App. 381 p. 223, p. 224