266 So. 2d 404 | Fla. Dist. Ct. App. | 1972
Lead Opinion
A labor union owned several acres of land in Collier County on which it planned a recreational facility for its members. Work was begun on a man-made lake, then stopped at the request of the County Commissioners, who then allowed the project to proceed when it appeared that dredging the lake without a permit was not unlawful. Later, the union sought to connect the lake to Henderson Creek, which flows into the Gulf of Mexico. It sought a permit, thought at the time by all parties to be required by a county ordinance which forbade crossing a “salinity line” established to protect fresh water on the landward side from the intrusion of salt water. Appellants Nell and Gargiulo appeared at a Commission meeting, where Nell asked for a permit. It was not clear whether the commissioners would issue it. Through the brother of appellant Wells, Commissioner Hancock was approached with the information that it would be worth a thousand dollars to get the job done.
Hancock notified the sheriff, who provided a pocket transmitter. Two meetings were held with the appellant Nell at a local restaurant, at the second of which appellant Gargiulo was present. Gargiulo went to the rest room, leaving an envelope on the seat next to Hancock, asking him to watch it for him. Nell told Hancock that the “stuff” was in the envelope. Hancock took the envelope and put it in his pocket, a signal to the sheriff and his deputy, waiting in the restaurant, who thereupon arrested Nell and Gargiulo. Wells was arrested later. All were charged with, and convicted of, bribery.
The major argument on this appeal is that no permit was needed because the defendants did not propose to cross the salinity line, but rather to dig parallel to it into Henderson Creek. On cross-examination, Hancock, who is not a lawyer, said that no permit was necessary, to the best of his knowledge. The county attorney testified that the purpose and meaning of the ordinance was to preclude the introduction of salt water into reservoirs of fresh water landward of the salinity line — certainly a logical notion — regardless whether the canal were dug across the line itself or connected fresh water landward of the line to the salt water of Henderson Creek. We think it unnecessary to interpret the ordinance, and we hold that the trial judge correctly refused to charge the jury that this was the pivotal question.
In fairness to our Chief, we must say that our Supreme Court has accepted weaker arguments than this as defenses to the charge of bribery. In Brunson v. State, 1915, 70 Fla. 387, 70 So. 390, a conviction was reversed because the defendant had been charged with bribing someone to permit him to “sell liquors unlawfully in Dade county, Florida”, without alleging that Dade County was dry. The statute made it unlawful to “sell spirituous, vinous or malt liquors in any county or precinct which has voted against the sale of such liquors . . .” The Court did go on to say, pertinent to the instant case, that “In order to constitute the crime of bribery or an attempt to bribe, it would seem not to be requisite that the act requested should be properly within the official power of the officer approached, but only that an offer of reward was made to influence the act of the officer in his official capacity, though there is some conflict in the authorities.” That paragraph itself is none too clear.
In Colson v. State, 1916, 71 Fla. 267, 71 So. 277, a conviction for bribery was reversed because the information, charging the defendant with offering “a gift of money” failed to allege that the gift of money offered was a “thing of value” and because the allegation that Durham, the person offered the money, “ ‘was then and there a juror in the Criminal Court of Record in and for Hillsborough county, Florida,’ does not exclude the idea that he was a tales-man called one day to serve as a juror in a certain case who after the termination of that case would be discharged from further
In Streeter v. State, 1925, 89 Fla. 400, 104 So. 858, Streeter was charged with offering an officer one hundred dollars “if he would fail to arrest one May Williams for a violation of the liquor laws.” The information was sustained, since “it does not wholly fail to charge an offense where the words used are given a broad and liberal construction and all intendments are taken in its favor.” Cf. Brunson and Col-son, supra,. But the evidence was held not to sustain a conviction. “The point presented is that the matter about which the alleged bribe was attempted was not one within the scope of any powers which could be exercised by the officer as such, in that he had neither a warrant for the arrest of the woman May Williams, nor any information concerning the violation of the liquor law by her which would justify her arrest by him without a warrant.”
We think Streeter completely misses the mark and is not the law of Florida today. Payment in advance does not absolve one with corrupt intent of the crime of bribery. Here, whichever way a court might have ruled on the applicability of Collier County’s ordinance to the particular circumstances of this case if the question were presented — -and the courts were open to its presentation — the activity of the defendants in giving money to accomplish their purpose constitutes the crime of bribery as defined by our statute
Streeter was distinguished in Zalla v. State, Fla.1952, 61 So.2d 649, in which a conviction of bribery was upheld. The Court there stated that in Streeter, “It was held that there was a variance between the allegata and probata. Thus, that case has no bearing on the present argument.” In its discussion of the law of bribery the Court on that later occasion got to the point which undergirds our decision here:
“The gist of the offense of ‘attempted bribery’ is the criminal intent to undermine the proper and orderly administration of justice. The law punishes an offer which is calculated to debase. The corpus delicti is the corrupt intent.”
Zalla represents a break away from the hypertechnicality of such cases as Brunson, Colson, Streeter, and Coleman v. State ex rel Mitchell, 1938, 132 Fla. 845, 182 So. 627. In Raines v. State, Fla.1953, 65 So.2d 558, our Supreme Court rejected the contention that the defendant was without power to accomplish the purpose of the one offering money because the defendant was but one member of a board, and was hence powerless to issue a license. There the
The word “entirely” is too often ignored. Bribery cases should not be tried on the nuances of actual 'authority, nor should those guilty be freed because it may later appear that what was sought to be accomplished corruptly may have been accomplished without the aid of the official involved. The key point is that whenever an act is within the apparent scope of duty of the person sought to be bribed, bribery occurs upon the corrupt offer, and it is not defended against by focusing the trial on the issue of alternative means of accomplishment for which the aid of the receiver is not needed. Here the county commission clearly regulates the matter of dredging. The defendants believed that the permit was required by the ordinance, and they sought its issuance. The ordinance itself has not been judicially construed, and if it were necessary to do so, it could be argued that the permit was required in order to link a fresh-water pond to salt water by extending it to a salt-water creek which itself crosses the salinity line.
We concede that the cases are in disarray, but Zalla persuades us that the crime has been proved here. If we are in error, and our Supreme Court should indeed choose to return to earlier “law” which we cannot in good conscience accept as binding today, it has jurisdiction to determine the matter on conflict certiorari. Fla.Const. Art. V, § 4, F.S.A. If Zalla does not by necessary implication overrule its unsound precursors we would be disappointed, but thereafter would leave the matter in legislative hands.
In bribery cases skillful counsel will direct attention away from the substance of the crime and toward so-called principles wljich seem to exonerate their clients. We judges must be sensitive to the obvious fact that our predecessors have on occasion applied black letter “principle” without regard to the historical basis for the verbal formulation of the “principle” and in doing so have made some bad law. Furthermore, textual “authorities” have cited Florida cases as authority for the proposition that bribery is not proved where there is some weakness in the proof of power to accomplish fully the offeror’s purpose.
“Under statutes predicating bribery and kindred offenses upon an effort to influence an official’s conduct which delineate that term as comprising ‘official action’ or his vote, opinion, judgment, action, etc., in connection with affairs which are pending or may come before him, the cases seem reasonably harmonious in recognizing the existence of a minimum implied limitation that a particular act concerning which it is sought to influence him must be within the scope of the subject matter by which his general official duty is bounded and to which it can relate, ostensibly, at least, in character and substance, and permit classification upon the basis of whether the act inherently is so related to his official duty as to be within its general or apparent scope, without reference to a present obligation to perform or refrain from performing it or even to the necessity or propriety of performance.”
The question whether a permit was, as a matter of law, required in the instant case seems irrelevant to the issue in this bribery prosecution. All the testimony is to the effect that the union was interested in getting “the job done.” This purpose might be accomplished quite as well by the Commission’s finding that a permit was unnec
A Pennsylvania court said in 1933 that “It is just as great a crime to bribe, or offer to bribe, a member of the Legislature to vote for or against an unconstitutional measure as it is corruptly to influence him to vote for or against a constitutional one.”
“. . . when a police officer receives money in consideration of his promise that he will not arrest any one of a class of offenders against the criminal laws, he is guilty of receiving a bribe, because the case of one who has committed the offense, and the consequent duty of the officer to arrest, is ‘a matter which may be brought before him in his official capacity.’ ”
We think that is sound law and that Streeter is not. Our view that Zalla has by implication overruled Streeter is admittedly weakened by the excessive delicacy with which the opinion of Judge White, a learned circuit judge, treated the precedents of the court on which he sat but temporarily. We think that in the case before us the question of permission to dig a canal was one within the general province of the County Commission and that an attempt to secure permission through the payment of a bribe was punishable regardless whether permission was legally necessary.
This case is illustrative of the tendency we have taken notice of in State v. Holmes, Fla.App.2d 1971, 256 So.2d 32. There we remarked that the recent trend toward safeguarding the rights of accused persons has been accompanied by a marked, and, we think too little recognized, trend away from the reversal of convictions on purely technical grounds. We would not have concurred had we sat on Streeter, Brunson or Colson, supra. We would agree with our brother Pierce that these decisions have not been specifically disapproved. We are convinced that they have been impliedly overruled,
We have examined the other questions presented and find nothing meriting discussion.
Affirmed.
PIERCE, C. J., dissents with opinion.
. Fla.Stat. § 838.011 (1969) : Any person who shall corruptly give, offer or promise to any public officer, agent, servant or employee, after the election or appointment or employment of such public officer, agent, servant or employee and either before or after he shall have been qualified or shall take his seat, any commission, gift, gratuity, money, property or other valuable thing, or to do any act beneficial to such public officer, agent, servant or employee or another, with the intent or purpose to influence the act, vote, opinion, decision, judgment or behavior of such public officer, agent, servant or employee on any matter, question, cause or proceeding which may be pending or may by law be brought before him in his public capacity, or with the intent or purpose to influence any act or omission relating to any public duty of such public officer, agent, servant or employee, or with the intent or purpose to cause or induce such public officer, agent, servant or employee to use or exert or to procure the use or exertion of any influence upon or with any other public officer, agent, servant or employee in relation to any matter, question, cause or proceeding that may be pending or may by law be brought before such other public officer, agent, employee or servant, shall be guilty of the crime of bribery.
. See 3 Wharton’s Criminal Law and Procedure, § 1389 ; 12 Am.Jur.2d Bribery, § 13; Annot. 121 A.L.R. 951; Perkins, Criminal Law, 405 (1957).
. See, e. g., 8 Am.Jur., Bribery, § 14; Annot. 158 A.L.R. 323, 327.
. Commonwealth v. O’Brien, 1933, 107 Pa. Super. 569, 164 A. 360, 363.
. People v. Jackson, 1908, 191 N.Y. 293, 84 N.E. 65, 67.
. It is important to note that the cases cited in Raines v. State, Fla.1953, 65 So.2d 558, at page 560, support the view taken in his opinion rather than the narrowly technical view taken in Streeter, Brunson and Colson.
Dissenting Opinion
(dissenting).
I respectfully dissent from the majority opinion.
The factual record here indicates that a labor union, namely the operating Engineers Union, owned property in Collier County on the landward side of the salinity line. The Union began to dig a lake on the property and planned to dig a canal from the lake to Henderson Creek, which would not cross the salinity line. The work was temporarily halted at the request of the County Commissioners, who then allowed the digging of the lake to continue as it appeared that the Union was conducting the work lawfully.
There was in effect a County ordinance which established a salinity line and which provided in part as follows:
“Section 3. It shall be unlawful for any person, group, corporation or other entity of any kind to make, dig or construct any canal or other excavation of any kind across and landward of the salinity line above described, which canal or excavation is connected to, extends into or is a part of any body of salt water or sea water without first obtaining a written permit to do so from the Board of County Commissioners.”
The salinity line Ordinance has never been construed nor is its construction necessary. Suffice it to say that the purpose of the ordinance obviously is to prohibit construction of a waterway across the salinity line.
The thrust of the prosecution was that appellants, defendants below, who were members of the Union, gave one of the County Commissioners $1,000.00 to influence the granting of a permit to dig a canal.
Although the majority opinion concedes that a permit was in fact not needed in order to have the canal built, some factual matters alluded to in my brother Mann’s opinion should be corrected. The majority opinion states that the Union “sought a permit, thought at the time by all parties to be required by a County ordinance which forbade crossing a ‘salinity line’ established to protect fresh water on the landward side from intrusion of salt water. Appellants Nell and Garguilo appeared at a Commission meeting where Nell asked for a permit.”
This statement implies that the appellants desired a permit because it was required by the salinity line ordinance to dig across the salinity line and that the appellants appeared at the Commission meeting to achieve this end.
A careful reading of the transcript shows otherwise.
Defendants’ Exhibit One, which contained the minutes of the Commission meeting Nell attended, discloses that on April 21, 1970, the appellants appeared at the meeting of the Board of County Commissioners and made a request to dig a canal landward to Henderson Creek.
At the trial, Commissioner Hancock read aloud from the official minutes of that meeting:
“Mr. Richard Nell and Tommy Wells of the Operating Engineers Union Local No. 675 appeared before the board requesting permission to dig in the Henderson Creek area landward of the salinity line. After due discussion, the board requested them to provide maps of the area with the proposed digging to be distributed to each board member for their perusal and to the environmental committee for their recommendations.” (Emphasis supplied).
From the record it is evident that any requests or permits were sought to dig on the landward side of the salinity line.
The record therefore discloses, and the majority opinion evidently concedes, based on the testimony and the clear import of the Ordinance, that the permission sought by the appellants could not be refused even if the Commission so desired. This is because the Commissions’ acquiescence was not necessary.
The pivotal question then becomes whether our bribery statute covers all actions of a public official or rather only those actions that are within his power to decide, i.e. actions within his “official capacity”.
The crime of which the appellants are accused is purely statutory, State ex rel. Williams v. Coleman, 1938, 131 Fla. 892, 180 So. 357, and each essential element of the offense as set forth in the statute must be strictly proved, Johnson v. State ex rel. Fox, 1930, 99 Fla. 711, 127 So. 317; State ex rel. Grady v. Coleman, 1938, 133 Fla. 400, 183 So. 25; Younghans v. State, Fla.App.1957, 97 So.2d 31.
The pertinent portions of F.S. Section 838.011 F.S.A., under which defendants were charged, reads as follows:
“Any person who shall corruptly give, offer or promise to any public officer . any commission, gift, gratuity, money, property or other valuable thing . . . with the intent or purpose to influence the act, vote, opinion, decision, judgment or behavior of such public officer ... on any matter, question, cause or proceeding which may be pending or may by law be brought before him in his public capacity, or with the intent or purpose to influence any act or omission relating to any public duty of such public officer ... or with the intent or purpose to cause or induce such public officer, agent, servant or employee to use or exert or to procure the use or exertion of any influence upon or with any other public officer, agent, servant or employee in relation to any matter, question, cause or proceeding that may be pending or may by law be brought before such other public officer, agent, employee or servant, shall be guilty of the crime of bribery.” (Emphasis supplied).
The amended information • specifically tracked the offending statute with the express allegation that defendants
“ . . . did corruptly give, offer or promise to a public officer, having knowledge of said public officer’s official capacity, to-wit: A. C. Hancock, a County Commissioner of Collier County, State of Florida, the sum of $1,000.00, good and lawful money of the United States of America, with the intent or purpose to influence the act, vote, opinion, decision, judgment or behavior of A. C. Hancock, on a matter, question, cause or proceeding which may be pending before him in his official capacity as a County Commissioner, or may by law be brought before him in his public capacity as a County Commissioner, such matter, question, cause or proceeding, concerning the salinity line in Collier County . . .” (Emphasis supplied).
The elements of the crime of bribery were set forth in Azrak v. State, Fla.App. 1966, 183 So.2d 712, as follows:
“(1) knowledge on the part of the accused of the official capacity of the person to whom the bribe is offered;
(2) the offering of a thing of value, and
(3) the intent to influence the official action of the person to whom the bribe is offered.” (Emphasis supplied).
The gravamen of the offense charged in the amended information is that the defen
Neither this Court nor any other Court should exchange its judicial wisdom for a definite legislative fact.
In Gibbs v. Mayo, Fla.1955, 81 So.2d 739, the defendant was formally charged with unlawfully breaking and entering a motor vehicle, but there was no statute in existence at that time making it a crime to break and enter a motor vehicle. In reversing the conviction the Court said:
“It has long been settled in this State that to charge one with an offense defined by statute, the offense must be charged ‘in the very language of the statute, or in language equivalent import’ and 'nothing can be taken by intendment’.” (Court’s emphasis)
This rule of law has been reiterated through a long line of decisions, and currently reaffirmed in Catanese v. State, Fla.App.1971, 251 So.2d 572.
If the subject matter of the alleged bribery is to come before a public official in his official capacity, then such act is condemned by F.S. Section 838.011 F.S.A., and is a violation of the bribery statute. In Smith v. State, Fla.App.1971, 253 So.2d 465, Smith, a city council member, was convicted on three of five informations which were consolidated for trial, charging him with soliciting and accepting a bribe to influence the defendant’s decision in the performance of his official duties on a "matter, question, cause or proceeding which might be in or which might by la1¶ be brought before him in his proper capacity . . . and would influence the act relating to one of the public duties of him .” (Court’s emphasis).
The conviction was reversed and defendant Smith ordered discharged where it appeared that the alleged bribery took place at a time when there was nothing pending before the defendant to be done by which any vote of his could be influenced.
The rationale of the Court’s decision was:
“Section 838.012, as enacted in 1955, is limited to the charges of accepting money or other things of value, which are prospective in scope of time, that money, etc. will influence the act, vote, opinion, decision, judgment or behavior of such public officer * * * in any matter, question, cause or proceeding which may be pending or may by law be brought before him in his public capacity or will influence his act or omission relating to any of his duties or will cause or induce him to use or exert or procure the use or exertion of any influence * * * with any public officer * * * in relation to any matter, question, cause or proceeding that may be pending or by law be brought before such public officer * * (Court’s emphasis),
cf. Greene v. State, Fla.1972, 263 So.2d 194.
In Raines v. State, Fla.1953, 65 So.2d 558, 560, our Supreme Court stated that prevailing rule as follows :
“The rule seems to be well settled that an officer cannot be charged and convicted of an act that is entirely outside the scope of his legal duties.”
We are constrained to disagree with the majority opinion that Raines rejected the contention that the defendant was without power to accomplish the purpose of the one
“This court is committed to the doctrine that any one who corruptly offers, gives, or receives anything of value to influence the receiver’s official action, is guilty of bribery.” (Citing cases) (Emphasis supplied)
In the case of Streeter v. State, 1925, 89 Fla. 400, 104 So. 858, Streeter had been charged with bribery under then Section 5346 R.G.S.1920 (basically the same as present F.S. Section 838.011 F.S.A.). The information charged him with the offense of “knowingly and corruptly attempting to bribe a duly qualified police officer of the City of Jacksonville, by offering to give to the officer a sum of money to influence him in his official capacity as such police officer in a matter which was then before him in his official capacity.” The evidence showed that the offer to bribe related to an offense which had not yet been committed, but was in contemplation only. The Court said:
“Therefore there was no matter, question, cause, or proceeding then pending concerning which the act, vote, opinion, decision, or judgment of the officer could be influenced, as was alleged in the information.” Cf. Tillman v. State, 1909, 58 Fla. 113, 50 So. 675.
The Supreme Court holdings in Street-er, Brunson and Colson, cited in the majority opinion, all subscribed to the doctrine in Florida that in order for one to be convicted under the bribery statute the matter sought to be influenced must be within the scope of an officer’s legal duties. Yet, my brother Mann proclaims he would not concur were he sitting on the Supreme Court on Streeter, Brunson or Colson. It is perhaps for this reason that the majority opinion relies instead upon three antiquated cases from other jurisdictions, exemplified by O’Brien and Jackson, ante.
It is interesting to note that of these three cases cited, one admits that there is “respectable authority in other jurisdictions tending to support the appellant’s contention.” Commonwealth v. O’Brien, 107 Pa. Super. 569, 164 A. 360 at 363.
Another case cited admits outright that the weight of authority on this question is the other way. People v. Jackson, 84 N.E. 65 at 67.
In 115 A.L.R. 1255, we find the following:
“It is a universal principle that an offense committed in connection with an act outside the official functions of the officer to whom the bribe is offered, is not bribery.”
The Supreme Court and other appellate Courts of Florida have consistently adhered to the majority view in the nation as stated in State of Washington v. London, 194 Wash. 458, 78 P.2d 548, 115 A.L.R. 1255. State v. Bowling, 1967, 5 Ariz.App.436, 427 P.2d 928; Ingram v. State, 1958, 97 Ga.App. 468, 103 S.E.2d 666; State v. Smith, 1968, 252 La. 636, 212 So.2d 410; Sugarman v. State, 1937, 173 Md. 52, 195 A. 324; State v. Jalbert, 1965, 161 Me. 505, 214 A.2d 819; State v. Adcox, 1925, 312 Mo. 55, 278 S.W. 990; State v. Greer, 1953, 238 N.C. 325, 77 S.E.2d 917; State v. Bell, 1967, 78 N.M. 317, 431 P.2d 50; State v. Nadeau, 1954, 81 R.I. 505, 105 A.2d 194; Selvidge v. State, 1934, 126 Tex.Cr.R. 489, 72 S.W.2d 1079; State v. Austin, 1965, 65 Wash.2d 916, 400 P.2d 603; State v. Good, 1967, 151 W.Va. 813, 156 S.E.2d 8; State v. Hibicke, 1953, 263 Wis. 213, 56 N.W.2d 818.
The majority opinion challenges our Supreme Court decisions and suggests that
Furthermore, as to applicability of statutory crime, there is no “gray zone.” A given act is either a violation of the statute — and clearly so — or it is not. And all doubts are resolved in favor of the person.
Suggestion is also made that the Legislature change the law if it needs to be changed. We as appellate Judges cannot enjoy the luxury of legislating, no matter how strongly we may feel so impelled, concerning the efficacy of certain laws — we must content ourselves with the interpretation of the law as it exists.
Viewing the law, therefore, as it does exist, appellants’ convictions should be reversed, the judgment and sentence vacated, and the appellants discharged.
