54 N.E.2d 548 | Ill. | 1944
Plaintiff in error, Dudley Patillo, was convicted in the criminal court of Cook county on a charge of bribery and sentenced to five years in the penitentiary. The indictment consisted of eight counts. All but the second were nolle prossed. He brings the cause here for review. Patillo was a parole officer in the Division of Correction of the Department of Public Safety of the State. His district comprised certain territory on the south side of the city of Chicago. He had under his jurisdiction one James Fountain, a parolee from the State penitentiary, having been theretofore convicted and sentenced to that institution for the crime of robbery.
The indictment charges that it was Patillo's duty to keep in communication with Fountain and observe the manner in which he complied with his parole, to assist him in so doing, to receive reports from him, and in case any order or warrant should be issued by the Division of Correction for the arrest of Fountain for violation of his parole, it was his duty to arrest him on such warrant. It is charged that on January 28, 1943, Patillo feloniously, knowingly, and corruptly received from Fountain $400 as a bribe, tendered with intent to cause him "to perform a duty of him required and execute a power in him vested as such parole officer, with partiality and favor and otherwise than then was required by law," that is, to conceal from the Division of Correction, and fail and neglect to *568 report thereto, the fact that Fountain had failed to comply with the terms of his parole in that he had bought an automobile, and to obtain dismissal of any order or warrant that had been or might be issued for the arrest of Fountain for violation of his parole by buying an automobile, and that the money was received by plaintiff in error as a bribe. It is urged here that the evidence failed to show the crime of bribery; that the indictment did not set forth the necessary elements to constitute a charge of bribery, and that there is a variance between the indictment and the proof. It is also alleged that certain errors were committed during the examination of witnesses.
The evidence of the People is that Fountain was paroled in October, 1941, with direction that he reside in Cook county. He came to the district over which plaintiff in error had supervision, and reported to him on an average of twice per month. The evidence also shows that while on parole, he purchased an automobile, signing for the payments, title being taken in the name of Christine Jones, a girl friend. There does not appear to have been any difficulty between Fountain and plaintiff in error. According to the testimony of Fountain, Patillo, on January 7, 1943, telephoned him and asked him to come to his office; that he did so and Patillo told him he had a warrant for his arrest and showed him a letter which had on it: "Pick James Fountain up and deliver him to the diagnostic immediately. See Mr. Higgins first. See Mr. Higgins right away." Fountain testified he did not see who had signed the letter; that Patillo did not show him a warrant but said there was a warrant for his arrest and an order that he be taken back. Fountain testified that he asked why a warrant was out for his arrest, and Patillo asked him if he had bought an automobile, and the witness replied that he had. He testified that Patillo had a license number on a piece of paper and told him it was a serious offense; that the witness asked Patillo what he could do about it *569 and the latter replied: "We can have it arranged; we can have a stop warrant," and asked witness if he had any money, stating that if the witness got some money, he, plaintiff in error, might be able to fix it so Fountain could "stay on the street;" that he, Patillo, would talk to Mr. Summers and Mr. Higgins and Mr. Wells, who were his superiors, and let him, Fountain, know how much it would cost him. He testified that plaintiff in error asked for $200, and on January 8 witness gave it to him, and that plaintiff in error also asked for $100 for the chief investigator, $200 for Mr. Wells, and $225 for Mr. Summers, explaining to Fountain that he was doing him a favor and not getting anything.
It appears from the evidence that an investigation was started as result of a complaint being made to the office at Springfield pertaining to this matter, and Milton H. Summers, the Superintendent of the Division, testified that he had the telephone operator in his office call Fountain and ask him to call back in ten minutes asking for Patillo, who was then in the office. This was done and Summers, on an extension, heard Fountain say: "I can't come up with that money tonight because my pay was tied up." Patillo replied: "Well, what do you mean?" Fountain said: "I haven't got the money. I won't be able to get it until Saturday." Patillo then said: "Well, are you coming over Saturday? But be in my office Saturday at eight o'clock; I am counting on you for that money." To which Fountain replied: "All right, I will be there Saturday night." This conversation occurred January 30, 1943. Plaintiff in error was arrested on that date by Patrick McNamara, an officer of the State's Attorney's office, who testified that he took Patillo to the State's Attorney's office where he denied having taken any money, and stated he had nothing further to say. McNamara also testified that plaintiff in error stated in the State's Attorney's office that he was going to take the money; that he figured he had it *570 coming for past favors, and that $125 was mentioned. This is denied by plaintiff in error in his testimony. He also denied receiving any money.
The State also introduced the testimony of Christine Jones, who testified that she and Fountain's sister-in-law loaned Fountain the money to give to Patillo; that on January 8, she gave Fountain $100 and the following day $50; that before giving the $50 she had seen Patillo in his office on January 9; that Emma Smith, Fountain's sister, went with her to Patillo's office and the sister wanted to know why Fountain was in trouble and what the trouble was. He asked in reply if Fountain had not told them, and she replied that he had not, and he said it was nothing that could not be straightened out. She testified that while they were there, Fountain came in, and she heard Patillo say it had to be straightened out not later than that day. She testified Patillo did not want to talk before her and Emma Smith so they went into the outer room. When they came back Fountain asked how much money they could get together and she told him she only had $50 left. Emma Smith testified in substance the same as Christine Jones. She also testified that after going out into the front room of Patillo's office, she heard Patillo say he had to have some money that night because he had to go to the office and had other men to see who were over him. Fountain said he could get only $150 that day and Patillo said if he could get $150 by five o'clock he would wait for him until five o'clock. A sister of Fountain, Georgia White, testified that after she had a conversation with her sister in regard to Fountain and Patillo, she went out to talk to her friend Rev. Bradley, pastor of the church in that neighborhood, and that thereafter she wrote to Springfield.
Plaintiff in error denied in toto having received any money, declared he had loaned $34 to Fountain and that the conversation that was heard by the witness Summers had to do with the return of the balance of that money, *571 which amounted to nine dollars. He denied that he knew Fountain had an automobile or discussed his having one, and that he had not heard about the automobile until in Summers' office, about January 30. He was asked on cross-examination whether he had a conversation with one Percy Jackson, who was introduced to him by a man named Hughes, and whether he asked Hughes or Jackson to help him by talking to Fountain, to get him to drop the prosecution. He denied that he had ever seen Percy Jackson or that he had told Hughes or Jackson he could return as restitution $200 of the money Fountain had given him. On rebuttal Percy Jackson testified, over objection, that on or about April 8, 1943, around four or five o'clock, Hughes came to his house and that he and Hughes went out to Patillo's car, Hughes getting in the front seat and he, the witness, in the rear; that Patillo was there and asked him if he knew Fountain and worked with him, and he replied he did, and that Patillo said to him he was in a position to give him a place and a month's rent if the witness would intercede with Fountain for him; that the witness was asked to call Hughes the next day and that on the next day he did call Hughes and told him he could not do any good, and that Hughes said he would talk to Fountain. A number of character witnesses were offered on behalf of Patillo. On rebuttal Fountain denied that he had ever borrowed any money from plaintiff in error.
In support of their contention that the evidence fails to show the crime of bribery, Patillo's counsel insist that it was necessary for the People to prove that Fountain had violated his parole; that plaintiff in error knew he had, and was charged with the duty of arresting him, and refrained from performance of that duty in consideration of a bribe. They urge that the evidence failed to prove Fountain had violated his parole. The indictment alleged that the terms of Fountain's parole were "that he reside in said county of Cook." The indictment also alleged that *572 Fountain had violated his parole by the purchase of an automobile. Patillo's counsel argue that such was not a crime and not ground for returning him to the penitentiary, and that the record was devoid of any proof that Fountain at any time failed to reside in the county. It is argued that to support a charge of bribery it is necessary that those things be shown.
Bribery, at common law and by statute, is the giving or receiving of anything of value or any valuable service or promise thereof, intended to influence any official in the discharge of a legal duty. (People v. Peters,
The count of the indictment under which plaintiff in error was convicted averred, and it is not denied, that Patillo was appointed and acting as parole officer of the State. All matters pertaining to the release of Fountain on parole and to Patillo's supervision over him are likewise admitted. The only issue of fact is whether Patillo corruptly received from Fountain a bribe with intent to have him, Patillo, fail to arrest Fountain or to report to the Division of Correction that he had purchased an automobile, charged to be contrary to his duties as a parolee.
Originally, under the common law, bribery had to do only with influencing the actions of persons in judicial places, identified with the administration of public justice. (Walsh v. People,
The exact question here raised seems not to have been heretofore considered by this court. It has, however, been passed upon in other jurisdictions. In Glover v. State,
In Rath v. State,
In State v. Graham,
In People v. Markham,
It appears in this case that the matter of reporting any violation of Fountain's parole was within the jurisdiction of plaintiff in error, and we think the rule to be deduced from the purpose and intent of the bribery statute, as well as from these authorities, is, that it is immaterial whether Fountain had violated his parole, or whether his purchase of an automobile was a breach of that parole. The gravamen of the charge is that plaintiff in error accepted a bribe to act partially rather than impartially in a matter which came before him in his official capacity. Counsel for plaintiff in error cite People v. Borella,
The gist of the offense of bribery is the giving to, and receiving or accepting of money or other valuable thing by, a public officer to influence him with respect to the performance of his official duty. That constitutes the gravamen of the offense denounced by the statute. The charge to be proved and defended was his acceptance of money to influence his official conduct. *577
Plaintiff in error's counsel contend there is a fatal variance between the indictment and the proof in that the indictment charged bribery and the proof showed, if anything, that plaintiff in error was guilty of obtaining money from Fountain by false pretense or by extortion; that the proof is that plaintiff in error had no warrant for the arrest of Fountain; that the evidence, if believed, showed plaintiff in error might be found guilty of extortion, as charged in count 4, or of false pretense under count 8, which charged that offense, both of which counts were nolled by the People. The fact that other crimes may have been within the proof, does not prevent substantiation of the charge of bribery in this case if, as the evidence of the People showed, he accepted money on a promise to act partially in his official duties.
It is also argued that it was error to admit evidence to impeach plaintiff in error's testimony on a collateral matter. On cross-examination, plaintiff in error denied that he, with Hughes, went to the house of Percy Jackson to secure his aid in an attempt to have Fountain drop the prosecution of the cause, or that he stated he would pay back the money to Fountain, while Jackson testified to the contrary, as hereinabove set out. We cannot agree that the examination in this instance was on a matter collateral to the issue. It had to do with a claimed interview with Jackson, in an endeavor to get him to talk to Fountain for the purposes herein stated. Neither the cross-examination nor its rebuttal was collateral but pertained directly to the issue of plaintiff in error's guilt or innocence. It was a question for the jury which of the witnesses were to be believed.
Finding no error in the record requiring reversal, the judgment of the criminal court is affirmed.
Judgment affirmed. *578