255 P. 792 | Cal. | 1927
The defendant was convicted of bribery under the first and third counts of an indictment, based on section
As stated in the opinion of the district court of appeal, the evidence sufficiently discloses that the defendant, on or about the twentieth day of June, 1923, was a duly elected, qualified and acting member of the common council of the city of San Diego, and that on that day he offered to one Ed Fletcher and Charles F. Stern to cast his official vote in said common council in favor of the purchase by the city of San Diego of Cuyamaca Water Company, in consideration of the payment to him of the sum of $100,000. The evidence, introduced under a separate count of the indictment, also is sufficient to prove that on the twenty-third day of June, 1923, while still a member of the common council, he offered to one Ed Fletcher, in consideration of the payment to him of the sum of $4,000, to cast his official vote as hereinafter stated, as a member of the said common council, in the matter of calling an election for the purpose of submitting to the electors of the city of San Diego the question of the ratification of the annexation to the city of San Diego of the territory formerly known as the city of East San Diego. The evidence in this case does not disclose anything as to the nature of the offer, excepting the fact that the defendant approached Ed Fletcher and Charles F. Stern and proposed that they pay him the sum of $100,000 for his vote in the matter charged in the first count of the indictment, and as to the separate count referred to herein, that he likewise approached Ed Fletcher and proposed to him that he would favor ratification of the annexation of the city of East San Diego to the city of San Diego by way of an election, rather than by resolution of the council, if Colonel Fletcher would pay to the defendant the sum of $4,000 for his services.
As stated by the district court of appeal, the only point at issue on the appeal is whether or not such proof establishes the crime of "agreeing to receive" a bribe.
The portion of section
The indictments charge that defendant did wilfully, etc., "agree to receive" a bribe.
By an amendment to section
It is argued by defendant that by the use of the phrase "every member who agrees," the legislature meant every member who entered into an agreement with another person — that there must have occurred a meeting of the minds of two persons.
[1] Before the amendment of 1905, any member of a common council who offered to receive a bribe was within the statute and the amendment of the language in the particular noted signifies an intention to change the pre-existing law. In United States v.Bashaw, 50 Fed. 749, 754, it was said: "The very fact that the prior act is amended demonstrates the intent to change the pre-existing law, and the presumption must be that it was intended to change the statute in all the particulars touching which we find a material change in the language of the act."
[2] "Where changes have been introduced by amendment, it is not to be assumed that they were without design; usually an intent to change the law is inferred." (In re Segregation ofSchool District No. 58, 34 Idaho, 222 [200 P. 138].) InRieger v. Harrington,
The case of People v. Coffey,
"The charge against this defendant, as we have seen, is under section
In United States v. Deitrich, supra, the defendant was indicted for conspiracy under a federal statute. The conduct alleged as constituting conspiracy was an alleged agreement between the defendant, a congressman, and one Fisher, whereby the defendant agreed to receive a bribe from Fisher. The case came up on demurrer to the indictment upon the ground that the co-operation in agreeing to give and receive a bribe was merely the essential co-operation of more than one person required to constitute the crime of bribery by receiving or agreeing to receive a bribe, and that the mere plurality of participants necessary to constitute bribery could not convert the case into one of conspiracy. The court held that co-operation of two persons was essential to constitute an agreement to receive or the receiving of the bribe, using the following language: "Section 1781 of the Rev. St. makes it an offense against the United States (1) for a member of congress, or any officer or agent of the government, to directly or indirectly take, receive, or agree to receive any money, property, etc. . . . (2) for any person to directly or indirectly offer or agree to give, or give, or bestow any like consideration, etc. . . . (3) for any member of congress to . . . take, receive, or agree to receive, etc. . . . Concert and plurality of agents in such an agreement or transaction are, in a sense, indispensable elements of the substantive offenses defined in section 1781, or agreeing to receive a bribe and of agreeing to give one. A person can not agree with himself. The concurrent and several acts of two persons are necessary to the act of agreeing, receiving or giving. In this respect, agreeing to receive a bribe from another and agreeing to give one are unlike soliciting or offering a bribe, because the solicitation or offer may be the act of a single person and may occur without any concurrent act of another."
There is further authority to the same effect in the case ofPeople v. Squires,
The Attorney-General relies upon the case of People v.Fitzpatrick,
It is apparent from a reading of the two cases under discussion that they are not in conflict, but that, on the contrary, the Fitzpatrick case falls within the exception recognized inPeople v. Coffey, which is not true of the instant case.
Before concluding the discussion of the question, we feel impelled to say that we are impressed with the reasons of public policy urged by the Attorney-General in support of an affirmance of this judgment, and because of the importance of those considerations we granted the petition for a hearing in this court after decision by the district court of appeal. We regret, however, that we are without *122 power to read into the statute language which would prevent the solicitation of bribes by members of the common council with impunity, since the section of the Penal Code relating to this group of public officers fails to include the asking or soliciting of bribes by them.
The argument made by the petitioner herein should be convincing if addressed to the legislature, the department of the government with power to change the present unwholesome situation.
The judgment is reversed.
Preston, J., Curtis, J., Shenk, J., Waste, C.J., Richards, J., and Seawell, J., concurred.