Wellborn v. State , 78 Ga. App. 520 ( 1949 )

1. (a) The law does not require that the evidence should be set out in the indictment.

(b) An indictment which states the offense so plainly that its nature may easily be understood by the jury is sufficient.

(c) An indictment for bribery need not necessarily set out in what respect the official behavior of the defendant was to be influenced by the payment of the money alleged to have been given him, or what official act was to be performed or not to be performed by him as the result of the payment thereof.

2. The indictment in the instant case was not subject to the motions to quash in the nature of general demurrers or the special demurrers, and the judgment of the trial court overruling the same is without error.

DECIDED FEBRUARY 1, 1949. Burt T. Wellborn was indicted in the Superior Court of Fulton County for the offense of bribery in four counts, the first of which is as follows: "for that said accused, in the County of Fulton and State of Georgia, on the 15th day of March, 1946, with force and arms, being then and there the manager of the Department of Municipal Auditorium of the City of Atlanta, Georgia, a municipal corporation, and it being provided by lawful ordinance of the City of Atlanta that it was his duty as such, to have charge and control over the operation of the Department of Municipal Auditorium, and to lease floor space in the said Auditorium to persons seeking the use of the Auditorium for the purposes of giving exhibitions, concerts, shows, wrestling matches, conventions, dances, and meetings, and to collect from such persons the charges and fees as fixed by the Municipal Buildings and Athletic Committee of the General Council of the City of Atlanta, and to see that moneys so collected were delivered to the Tax Collector of the City of Atlanta; said part of his duties as above outlined being established (a) by usage and custom in the Department of Municipal Auditorium of the City of Atlanta as in vogue and established under the supervision of the Municipal Buildings and Athletic Committee of the General Council of the City of Atlanta; (b) by authority and instruction of said named committee; did unlawfully receive of and from Paul Jones a present, reward and bribe of six thousand one hundred eighty and 57/100 ($6,180.57) dollars in money, which was so received by the said accused to influence his official behavior in his said office as Manager of the Department of Municipal Auditorium, in the following respects, to wit: to influence corruptly to act partially and in the favor of Paul Jones, a promoter, in the rental of space in the Municipal Auditorium for the showing of `Holiday on Ice' during the month of March, 1946; contrary to the laws of said State, the good order, peace and dignity thereof."

The remaining three counts are in the exact language of the first count with the exception of different sums alleged to have been paid as the bribe, by different persons, on different dates, and in connection with the showing of different attractions.

The defendant filed separate motions to quash in the nature of general demurrers to each count and also special demurrers to certain language contained in each count, these defensive pleadings being couched in identical language as to each count.

Upon the hearing of the motions to quash and the special demurrers as interposed to each of the four counts of the bill of indictment, the trial judge entered a judgment overruling the same, and this judgment is assigned as error. 1. Ground 1 of the special demurrers to each count is to the following language of the indictment, "and it being provided by the lawful ordinance of the City of Atlanta that it was his duty as such to have charge and control over the operation of the Department of Municipal Auditorium."

Ground 2 of the special demurrers to each count is to the following language, "and to collect from such persons the charges and fees as fixed by the Municipal Building and Athletic Committee of the General Council of the City of Atlanta."

Ground 3 of the special demurrers to each count of the indictment is to the following language, "said part of his duty as above outlined be established (a) by usage and custom in the Department of Municipal Auditorium of the City of Atlanta as in vogue and established under the supervision of the Municipal Building and Athletic Committee of the General Council of the City of Atlanta."

Ground 4 of the special demurrers to each count of the indictment is to the following language, "(b) by authority and instruction of said named committee."

Ground 5 of the special demurrers to each count of the indictment is to the following language, "to influence corruptly, to act partially and in favor of . . [different names are inserted in different counts here as to the person paying the alleged bribe] in the rental of space in the Municipal Auditorium for the showing of . ." A different show and the date thereof is alleged in each count.

The defendant contends by said special demurrers as to ground 1 that the language complained of should be stricken because the ordinance referred to therein not being pleaded, it amounts only to a conclusion of the pleader; as to ground 2 that the language complained of should be stricken because in the absence of allegations in the indictment stating such a list of fees and charges for space in the auditorium as promulgated by the Athletic Committee, it amounts only to a conclusion of the pleader and is not sufficient to put the defendant on notice of what he must defend; as to grounds 3 and 4 that the language complained of should be stricken because the same is vague and indefinite, amounts to but a conclusion of the pleader, and is in conflict with another portion of the indictment which alleges that the defendant as manager of the auditorium, derives his duties by virtue of a lawful ordinance of the City of Atlanta; and as to ground 5 that the language complained of should be stricken because the same is vague and indefinite in that it does not allege in what manner or by what means the defendant was to influence corruptly, nor as to what manner the defendant acted partially toward the parties named in the indictment, that the same does not set out to whose detriment any partiality was shown, does not allege any legal duty violated by the defendant, and amounts to a mere conclusion of the pleader unsupported by alleged facts upon which such conclusion can be drawn.

(a) The crimes charged in the indictment are not based on the city ordinance referred to therein and complained of in ground one of the special demurrers. The gravamen of these offenses is the bribes the defendant is alleged to have accepted. The reference to the city ordinance is merely to show that the defendant held such office as is contemplated by Code § 26-4101 wherein the crime of bribery is defined and renders admissible in evidence the ordinance itself. Also the charges and fees as fixed by the Municipal Buildings and Athletic Committee of the General Council of the City of Atlanta form no part of the gist of the crimes charged here and referred thereto in the indictment but constitute merely an explanation of the duties of the defendant. The charges and fees referred to in the indictment as complained of in ground 2 of the special demurrers renders such charges and fees admissible in evidence. The law does not require that the evidence should be set out in the indictment. SeeDowda v. State, 74 Ga. 12 (2).

Grounds 1 and 2 of the special demurrers as to each count of the indictment are without merit.

(b) Construing the counts of the indictment as a whole it appears to be clearly alleged that the defendant was manager of the auditorium by virtue of a city ordinance, that his official duties material to the charges contained in the indictment were to lease floor space to persons seeking to use the auditorium for the purpose of giving exhibitions, concerts, shows, wrestling matches, conventions, dances, and meetings, to collect from such persons the charges and fees fixed therefor and to pay the same to the tax collector of the City of Atlanta; that a part of these duties he derived by virtue of an ordinance, a part by usage and custom, and a part by authority and instructions of a committee of the municipal government of Atlanta charged with the supervision of the auditorium. These allegations are sufficiently plain for the nature of the offenses to be easily understood by the jury. See Dowda v. State, supra.

Grounds 3 and 4 of the special demurrers are without merit.

(c) In Saunders v. State, 43 Ga. App. 59 (158 S.E. 433), the grounds of the demurrers were substantially that the indictment fails to set out in what respect the official behavior of said accused was to be influenced by payment of the money alleged to have been given him and what official act was to be performed or not to be performed by him as the result of the payment of said sum. It was there held that the indictment met the requirements of our law which is only that the offense be charged in the terms and language of the Code or so plainly that the nature of the offense can be easily understood by the jury. See Code, § 27-701.

The Saunders case controls the instant case as to special ground 5 of the demurrers adversely to the contentions of the defendant.

2. The motions to quash, in the nature of general demurrers as to each count contained in the indictment, contend substantially: (1) that the counts of said indictment do not set out the violation of any law, because they fail to allege the breach of any lawful duty which the defendant was bound to perform; (2) that the indictment is not sufficient to charge the offense of bribery, because it alleges no breach of official duty, but shows to the contrary that he performed each duty imposed upon him, the indictment containing no allegation that the city was defrauded, or that anyone suffered loss; and (3) that the indictment does not charge with certainty and precision the facts and circumstances necessary to constitute bribery, and does not allege with particularity sufficient facts to put this defendant on notice as to what he is to defend.

As hereinbefore pointed out indictments are deemed to be sufficiently technical and correct which state the offense in the terms and language of the Code or so plainly that the nature of the offense charged may easily be understood by the jury. See Code, § 27-701; Dowda v. State, supra; Saunders v. State, supra.

Code § 26-4101 defines bribery as follows: "Bribery is the giving or receiving any undue reward to influence the behavior of a person receiving such reward in the discharge of his duty in any office of government or justice." The indictment here alleges the defendant to be an officer of the City of Atlanta. A municipal officer is such an officer as comes within the meaning of the Code. See Saunders v. State, supra; Payne v.State, 29 Ga. App. 156 (114 S.E. 226). The indictment alleges that he received specific sums of money from named persons to influence him corruptly to act partially and in favor of such named persons.

The contention that the indictment is defective because it fails to allege any breach of duty on his part is without merit. See Saunders v. State, supra. The contention that the indictment is defective because it fails to allege that anyone was defrauded because of his act is without merit. See Payne v.State, supra.

Each count of the indictment charges the offense of bribery so plainly that the nature thereof may easily be understood by the jury and is sufficient. Neither the motions to quash in the nature of general demurrers nor the special demurrers are meritorious and the judgment of the trial court overruling the same is without error.

Judgment affirmed. MacIntyre, P. J., and Gardner, J.,concur.