Opinion
September, 1898.
Josiah T. Marean, district attorney, for People.
Nicoll, Anable Lindsay (Benjamin F. Tracy, Albert E. Lamb, De Lancey Nicoll and John D. Lindsay, of counsel), for defendant.
The defendant demurs to an indictment for bribery on the ground (1) that it does not contain a plain and concise statement of the act constituting the crime, and in the form prescribed by the Code of Criminal Procedure; (2) that more than one crime is charged; and (3) that the facts stated in the indictment do not constitute a crime.
The indictment in substance charges that the defendant on July 14, 1897, was commissioner of city works of the city of Brooklyn, and as such had power to employ some one to do certain grading, filling, paving and repaving on New Utrecht avenue in said city; that on that day he unlawfully and feloniously agreed with one Daniel Doody to employ the latter or some one in his interest to do said grading, filling, paving and repaving, if Doody would cease to dispute a claim then asserted against him by a firm of which Willis was a member, and would give his promissory notes in settlement of such claim; that as a part of the same corrupt agreement it was further agreed that the terms of the contract would be so arranged by the defendant that the first payment under it should precede the date of the maturity of the notes; that Doody did give such notes to the defendant on said day and the defendant thereafter, in pursuance of the agreement, did employ one Daniel F. Doody in said Daniel Doody's interest to do the work referred to, which work was paid for by the city of Brooklyn, the first payment being made on September 10, 1897, and that thereafter the notes were paid.
The indictment contains a sufficient statement of the act constituting the offense. By section 72 of the Penal Code it is provided that any officer therein referred to who asks, receives or agrees to receive a bribe, or any money, property or value of any kind, or any promise or agreement therefor, upon an understanding that his official action will be influenced thereby, is punishable for bribery. The defendant is within the description of the public officers affected. People v. Jaehne, 103 N.Y. 182. The statute in terms includes a promise to pay, and such promise, whether verbal or written, is equally within the prohibition of the law. The fact that the notes were void because of the corrupt agreement under which they were given cannot avail the defendant. Public policy forbids the enforcement of a promise to pay a bribe, but no court has ever held that one exacting such a promise is, therefore, relieved of the penal consequences. Besides, as has been seen, the notes in question were paid at maturity.
The case relied on by the defendant's counsel is that of State v. Walls, 54 Ind. 561, in which it was held that a future illegal promise could not be considered as having any real value, and that the acceptance of a promissory note was not the taking of a bribe.
The case is not in point. The statute under which the defendant there was prosecuted was aimed only at any officer who should " take any money, gift, property or undue reward, to influence his behavior," etc. The statute did not provide for bribery by means of a promise or offer to give something of value, but only by means of actual giving. The distinction is manifested by the same court in State v. McDonald, 106 Ind. 233, where it was held that the thing offered as a bribe need not be of any intrinsic value, provided it is proven to be of value to the person to whom it is given or offered; and an offer to a school trustee to give him, on condition that he would purchase certain articles for the use of the schools at an agreed price, a receipt for a larger sum, to be used by him as a voucher in settling his accounts, the difference to be appropriated by him, is as much an offer of a bribe, as if the trustee had been offered the difference in cash in case he would make the contract.
I do not find two crimes charged in the indictment. The crime was complete when the corrupt agreement was consummated, and the allegations of the subsequent acts of the defendant in employing Daniel F. Doody were unnecessary. The defendant claims that they present another offense in addition to the crime of bribery, viz., the willful neglect or omission of duty on the part of a public officer. But the indictment does not set forth any duty whatever devolving on the defendant as a public officer which he is charged with willfully neglecting or omitting to perform. The indictment does indeed charge that Daniel F. Doody was employed without any advertisement for proposals and without bona fide competition, but it is not stated that such advertisement and competition are required by law, or that the duty of advertising and securing competition devolved upon the defendant. Regarded as a charge of willful neglect of duty the indictment would, therefore, be defective. In order to render an indictment bad for duplicity where a second charge is defectively presented, it must be clear that it was intended to set out more than one offense. Otherwise the additional matter will be rejected as surplusage, Lohman v. People, 1 Comst. 379; Dawson v. People, 25 N.Y. 399; Polinsky v. People, 73 id. 65; People v. Laurence, 137 id. 517.
The demurrer is accordingly disallowed, with leave, however, to the defendant, at his election, to plead to the indictment.
Ordered accordingly.