McMartin v. State , 95 Neb. 292 ( 1914 )

Fawoett, J.

Defendant was convicted in the district court for Sarpy county of the crime of attempting to bribe the county attorney of that county. From such conviction he prosecutes error to this court.

For the sake of brevity plaintiff in error will be designated in this opinion as defendant. The several errors ■argued for reversal will be considered in the order in which they appear in defendant’s brief.

1. “The indictment did not contain statements sufficient to constitute a cause of action.” This point is not argued and will not be considered.

2. Section 176 of the criminal code “is void because of indefiniteness, and does not include or refer to a prosecuting attorney, or any attempt to bribe such officer.” The argument upon this point is that the law is void as to the matter of attempting to bribe a county attorney, in that it does not point out what officer, if any, is intended to be referred to; that section 176 “refers to ‘county officer’, not ‘a county officer.’ ” We are unable to grasp the distinction. Section 176 provides: “Every person who shall offer or attempt to bribe a public officer and every public officer who shall solicit a bribe or who shall propose or agree to receive a bribe in any case shall be fined in a sum not exceeding five hundred dollars ($500) nor less than three hundred dollars ($300) and shall be imprisoned in the penitentiary for the period of one year.” If a county attorney is a public officer, which is too plain to admit of a doubt, he is included within this section of the criminal code.

3. “The court erred in giving instruction No. 2.” Instruction No. 2 is a literal quotation of section 176 of the criminal code. The objection to the instruction is that the court should not have included that part of the section which provided that “every public officer who shall solicit a bribe or who shall propose or agree to receive a bribe in any case shall be fined,” etc. It is said that there was no evidence on which to base this portion of the instruction; that it was sufficient to instruct tlie jury on the law as to offering or attempting to bribe a public officer; that the inclusion of the language last above quoted had a tendency to confuse the jury; that the jury may have conceived the idea “that Judge Begley, a popular officer, elected by the people, may have been accused of having solicited a bribe, or having proposed or agreed to receive a bribe, and for the purpose of protecting him from blame it became essential to convict the defendant.” We do not think the instruction could have had this effect, and we cannot say that it was erroneous.

4. “The verdict is contrary to the evidence and is not sustained thereby.” The evidence against the defendant consisted largely of the testimony of the county attorney, corroborated to some extent by the testimony of Mr. Chase, who held the office of sheriff. The evidence shows -that the offices of the sheriff and county attorney were in adjoining rooms in the courthouse; that on the day alleged the defendant called at the courthouse to see Mr. Begley, the county attorney. At the time he called, Mr, Begley was in his office, but was engaged in conversation with the county attorney of Saunders county; that defendant took a seat in Mr. Chase’s office to wait until he could have an interview with Mr. Begley; that while in Mr. Chase’s office he said he wanted to see the county attorney; to quote Mr. Chase’s language: “He said he wanted to see the county attorney — see him alone so his word would be just as good as the county attorney’s.” When Mr. Begley’s visitor departed defendant was admitted. Mr. Begley testified: “Mr. McMartin came into my office, and he said, T have come to see you about a matter, and I am going to talk plain.’ He says, ‘There has been all kinds of rumors clown in Fort Crook as to what you are going to do, what you are going to do when you got in, and I came up to see you. We are all up in the air. There are reports down there that you have got the dope on all of us.’ I said, ‘Mr. McMartin, I have the dope on all ex- • cept you. I have sent a man down there, and have found out about everybody else, but I haven’t anything against you.’ Mr. McMartin said, ‘I am glad of that. I have been arrested once, and just finished paying the fine.’ ” He further testified that, when defendant asked him what he was going to do, he answered: “I said, ‘You know what the law is with reference to selling at Fort Crook, with reference to selling within two and a half miles of a military post.’ He says, ‘We know that.’ I said, ‘That is all the advice on the matter I can give yon.’ He says, ‘Would you let me get by for $150 a month.’ I said, ‘No, sir; I wouldn’t let you get by for any amount.’ He says, ‘You can go down there and find out my reputation, and that I have always run a good place down there.’ He says, ‘We can’t sell unless we have some protection.’ I stated that I would make no arrangements with him; that I didn’t consider they were entitled to run, and if I got the evidence on him I would surely prosecute him, and if he continued to run I would get the evidence.” He further testified: “After I told Mr. McMartin that I refused to take anything, he said, ‘You are a fool if you don’t get it. Everybody gets it. There is nothing in this office except the money, and you might just as well get the money. The people down there all want saloons, and there will never be anything said.’ He said, ‘All you have to do is just to let us go by, and nobody will ever bother you if you don’t bother us.’ * * * I said, ‘When I went into office I knew what the salary was. If I don’t like the salary f can resign.’ * * * We then talked further about some matters, and finally he returned to the subject. He said, ‘You take this $150 a month and don’t be foolish about it. Nobody will ever know anything about it. All we are after is the money anyway. These fellows want their beer, and we consider the law isn’t good down there.’ I said, ‘No, sir; I refuse to take any money, and don’t want to hear any more of the proposition. You have got to obey the law if you don’t want to get into trouble.’ Mr. McMartin then started to go, and he said, ‘Come down and have a drink with me.’ I said, ‘No; I am busy and don’t care for anything.’ He said, ‘Come down and have a cigar.’ And I said, ‘I don’t care for any.’ As he started to go by the desk, he reached doAvn in his pocket and pulled out a purse and opened it. When he opened it I saw that it contained a good deal of gold. He pulled out a five-dollar gold piece and threw it on the desk. He said, ‘Take this and have a good treat on me.’ I said, ‘No; take your money, you don’t owe me anything. I haven’t rendered you any service.’ He said, 'Go ahead and take it.’ I said, 'No; come hack and get your money, it is your money.’ He walked out and left the money lying there on the table.” This testimony is in part contradicted by defendant, and the $150 a month attempted to be explained by his testimony that what he was seeking- was to have some arrangement made by which he and others, who were selling around Fort Crook, might pay a certain stipulated amount in the way of fines and thus avoid prosecution. He testified: “I says, 'Ain’t there some way where they can be fined and let them run?’ I said, 'The farmers like a glass of beer when they come to town.' I says, 'Ain’t there some statute where they can be fined, and still keep going?’ 'No;’ he says, 'there ain’t.’ I says, 'I understand down in Iowa they have got a law where they can be fined;’ and he says, 'They have got a different law in Iowa. There is no such law in the state of Nebraska.’ I says, 'If there is no such law in Nebraska, there is no use talking about it; let’s quit talking about it; and we sat down and talked on general topics; never said nothing about that transaction. I had bothered him talking with him so long that I felt kind of foolish, and I said, 'Begley, come down and have a cigar.’ He says, 'I haven’t got time.’ I stuck my hand down in my pocket, and I thought I gave him a quarter, but he claims-1 gave him a five-dollar gold piece; the transaction was all over; the talk was all over; there was no dickering afterwards. I got up and walked out of the door.”

In connection with this assignment we will consider defendant’s assignment that the court erred in admitting in evidence the five-dollar gold piece above referred to. It is argued that it was not shown that this money was given for purposes of attempting to bribe; that Judge Begley himself stated that it was given for purposes of Heating; that the sum was insignificant, and when the larger sum was not considered there could be no presumption that the insignificant sum was left for an illegal purpose. We do not think the court erred in admitting the gold coin in evidence. The jury had a right to determine the probability of defendant’s having done the improbable thing of throwing out a five-dollar gold piece, thinking it was a “quarter.” Moreover, the testimony of Mr. Begley was that defendant took the five-dollar gold piece out of a purse containing a large quantity of gold. The leaving of the gold coin on Begley’s desk over the latter’s protest was so closely connected with the offer of $150 a month as to make it a part of the same transaction, and would tend strongly to show that defendant realized that he had made a mistake, had approached the “wrong man” with his offer of a bribe, and that he was endeavoring as he left to mollify “his man” with a liberal treat. Taking the testimony, therefore, as a whole, the defendant’s declaration in advance to Mr. Chase that he wanted to talk to the county attorney alone, so that his word would be just as good as that of the attorney, the unqualified testimony of Mr. Begley as to the offer of the bribe, his unqualified denial of the testimony of the defendant that defendant’s talk was along the line of paying a stipulated fine similar to the Iowa law, and the gold coin episode at the end of the interview, were sufficient to satisfy the jury, as it has us, beyond a reasonable doubt, that the defendant was guilty.

5. The next complaint is that, when the court had finished, reading its charge to the jury, it announced to counsel in the presence and hearing of the jury the following language: “The instruction asked by defendant is refused.” This did not constitute reversible error, nor does Jones v. State, 87 Neb. 390, cited bv defendant, so hold.

6. It is next urged that the case should be reversed because of remarks made by Attorney W. R. Patrick, who was conducting the prosecution, in his closing argument to the jury. No objection was made to the language at the time it was used, nor any ruling of the court requested. The only objection appearing in the record is in the motion for a new trial, and in the affidavit of defendant’s counsel in support thereof, which recites that Mr. Patrick in his closing argument “uttered the following language with a great deal of force, viz.: ‘It is your duty to return a verdict of guilty, and, if not, it is (or will) be your duty to make a report to the court that Judge Begley is guilty of perjury, and recommend that the matter of his perjury be presented to the grand jury of Sarpy county,’ or words almost identical, and to that full effect.” We have frequently held that misconduct must be objected to and exception taken to the ruling of the court before it will be considered in this court. Bradshaw v. State, 17 Neb. 147; McLain v. State, 18 Neb. 154; Hill v. State, 42 Neb. 503; Catron v. State, 52 Neb. 389; Connolly v. State, 74 Neb. 340; Goldsberry v. State, 92 Neb. 211. In Clark v. State, 79 Neb. 482, we held: “It is only in the most flagrant cases of the use of improper language by a prosecuting attorney, even in the prosecution of capital offenses, that defendant’s counsel can apparently acquiesce in the language used by remaining silent until the trial is finished, and then cause the trial and verdict to be set aside by complaining of statements to which he seemed at the time to consent.” Even if it were to be conceded that the language of Mr. Patrick was somewhat outside of the pale of legitimate argument, we cannot say that it was such a flagrant case of the use of improper language as to call for a reversal under, the circumstances shown.

7. It is next argued that the court erred in refusing the only instruction tendered by defendant. The instruction reads: “The jury are instructed that, in considering the testimony of an officer, or officers, whose duty it is to pursue, arrest, and prosecute criminals, you should consider it with caution, because of the tendency of such officers to hear and remember those portions of conversations and evidence against the defendant, and not hear or remember such portions as may be in favor of the defendant.” This instruction was properly refused for two reasons: (a) Mr. Chase was not testifying as to anything which occurred at a time when he was acting in his capacity as a sheriff. He was simply testifying, as an ordinary citizen, to a conversation had with the defendant prior to the time the crime was committed, (b) In Keezer v. State, 90 Neb. 238, we distinctly held that the rule announced in the proposed instruction “will not ordinarily apply to a county attorney, a sheriff, or to his deputy.”

Finally, it is argued that “the court erred in not striking out Mr. Begley’s answer‘to question No. 129, which follows No. 131.” Counsel has these two questions transposed. On cross-examination counsel for defendant, by question No. 129, asked Mr. Begley: “Didn’t you tell Mr. Rushart you had sent down six or seven times to catch Mr. McMartin, to get evidence against him, but failed to do it? A. When and where? (130) Q. Along about this time? A. No; I don’t recall of having told Mr. Rushart that. (131) Q, Along about the time you sent Mr. Hamilton down there? A. No, sir; I don’t recall of telling anybody about sending any one down there. Since the day Mr. McMartin was at my office, I remember Mr. Rush-art’s coming up there and telling me that he heard a conversation over the ’phone where Mr. McMartin was coming up to offer me money. Mr. Langdon: I move to strike the answer out as hearsay and not responsive. The Court: Overruled. Exception.” In this ruling the court did not err. The motion is to strike the entire answer. The first sentence was clearly responsive to counsel’s question, and not hearsay; hence, the motion was bad and was properly overruled. Moreover, since counsel had asked Mr. Begley about a conversation with Mr. Rushart, it was not an abuse of discretion for the court to permit an answer to remain in the record which told what the conversation actually was that he had had with Mr. Rushart.

Affirmed.

Sedgwick, J., not sitting.