185 Ind. 119 | Ind. | 1916
— Appellant was convicted of offering a bribe to a prosecuting attorney under §2378 Burns 1914, §2009 R. S. 1881, .which provides that: “Whoever corruptly * * * offers to any * * * prosecuting attorney * ' * * any money * * * to influence his action * * * in any matter pending * *. * shall, on conviction, be imprisoned” * * *. The affidavit, on which the prosecution rested, charges: “That, heretofore towit, on the 24th day of July, 1913, at the County and State aforesaid, one Lee F. Sprague, was then and there the duly elected and qualified prosecuting attorney in and for the twenty-eighth judicial circuit, of the State of Indiana, and as such officer was charged with the duty of prosecuting an indictment against Bessie Robinson for the crime of keeping, running and operating a place where intoxicating liquors were sold in violation of the laws of the State of Indiana, and being unlawfully found in possession of such intoxicating liquors to be sold for such purpose (being commonly known as the blind tiger charge) for which crime Bessie Robinson, had then and there been duly indicted by the grand jury of said County, as she, the said Bessie Robinson, then and there well knew, and with such knowledge the said Bessie Robinson did then and there unlawfully, feloniously and corruptly offer to the said Lee F. Sprague, two hundred ($200.00) dollars, lawful money of the United States of America, with the corrupt purpose then and there to influence the official action of the said Lee F. Sprague as such prosecuting attorney, and to induce the said Lee F. Sprague, prosecuting attorney, to dismiss a prosecution against the said Bessie Robinson upon said indictment returned by the grand jury of the county and State aforesaid, in the Blackford Circuit Court of Indiana, charging
It is also suggested by the Attorney-General that the phrase, “as she * * * well knew,” relates as well to the averment of the election and qualification of the prosecutor as to that of the return of the indictment. See Wilkinson v. State (1858), 10 Ind. 372; Steeple v. Downing (1878), 60 Ind. 478; 31 Cyc 87. In view of the conclusion we have, reached, this claim is not determined, and, for the purposes of this decision, the averment of knowledge is treated as referring only to the return of the indictment.
In Banks v. State (1901), 157 Ind. 190, 60 N. E. 1087, the defendant was charged with bribing a “designated” election officer under §2379 Burns 1908, Acts 1905 p. 695. It was said in the opinion that an allegation of knowledge of official character of the person to whom the bribe was offered is necessary, and State v. Howard (offering bribe to juror), supra, and Pettibone v. United States (1892), 148 U. S. 197, 13 Sup. Ct. 542, 37 L. Ed. 419, were cited. In the latter ease it was said: “In eases of that sort it is the official character that creates the offence, and the scienter is necessary. * * * This is so whenever knowledge is an essential ingredient of the offence, and not implied in the statement of the act itself. Wharton Cr. PI. & Pr. §164.” (Our italics.) In said section 164, Wharton says: “Where the statement of the act itself necessarily includes a knowledge of the illegality of the act, no averment of knowledge is necessary.” This qualification of the general rule is generally recognized. State v. McDonald (1886), 106 Ind. 233, 238, 6 N. E. 607; Commonwealth v. Bailey (1904),26 Ky. Law Rep. 583, 82 S. W. 299; State v. Dankwardt (1898), 107 Iowa 704, 77 N. W. 495. In Banks v. State, supra, the averments did not involve a consideration of said qualification of the general rule. The acts alleged did not imply knowledge of official character. Indeed it was held that there was no sufficient allegation of legal appointment to office of the person to whom the
Appellant contends that the fact in controversy must have been averred directly and positively. Axtell v. State (1909), 173 Ind. 711, 91 N. E. 354, pursued such line of reasoning, but was overruled in Agar v. State (1911), 176 Ind. 234, 94 N. E. 819. Since then, and before tbe filing of this affidavit, tbe act approved March 15, 1913, took effect. Acts 1913 p. 850, §343 Burns 1914. Tbe effect of this act is tbe requirement of a more liberal rule in construing criminal and civil pleadings, in certain respects, and tbe elimination of certain common-law technicalities which, if ever defensible, long
Error is assigned on the overruling of appellant’s motion in arrest of judgment, which avers that the facts stated in the affidavit do not constitute a public offense. What we have decided on the motion to quash disposes of this question.
Judgment affirmed.
Note. — Reported in 113 N. E. 306. Elements of the crime of bribery, 116 Am. St. 38. Jurisdiction or authority of an officer to act, as an element, note 15 L. R. A. (N. S.) 1173. See under (3) 9 C. J. 411; 5 Cyc 1043.