Opinion
No. 29028
Decided July 1, 1942.
Criminal law — Bribery — Section 12823, General Code — Allegations of indictment sufficient as to person bribed, when — Acting senior assistant mechanical engineer of city — Person holding position is agent and employee of charter municipality, when.
1. An indictment, which pursuant to Section 12823, General Code, charges the accused with bribery by corruptly giving another person money to influence his action, opinion or judgment in a matter pending, is not insufficient merely because the only allegation with respect to the position held by the person alleged to have been bribed is that he "was a duly appointed, qualified and acting senior assistant mechanical engineer of the city of Cleveland and in said position was an agent and employee of said city of Cleveland."
2. A person, who holds a position in the utilities department of a charter municipality, which department is under the direction of a director of public utilities, and who in such position has charge of approving or disapproving chemical analyses of coal, the purchase of which is contemplated by the municipality, is, in performing such services, an agent and employee of the municipality.
APPEAL from the Court of Appeals of Cuyahoga county.
The grand jury of Cuyahoga county, Ohio, on July 31, 1940, returned an indictment against Ray L. Berry, Frank Costanzo, Robert L. Crow and John L. Abbott, for a violation of the bribery statute (Section 12823, General Code). The first, third, fifth and seventh counts charged Costanzo, Berry and Crow with corruptly paying money to Abbott to influence the latter's action, opinion and judgment. The first count, omitting the formal parts, charges:
"That Frank Costanzo, Ray L. Berry and Robert L. Crow during the period from on or about July 8th, 1935, to on or about the 14th day of July 1936, at the county aforesaid, violated the provisions of Section 12823 of the General Code of Ohio in the manner hereinbelow set forth:
"That during said period from on or about July 8th, 1935, to on or about July 14th, 1936, Frank Costanzo, Ray L. Berry and Robert L. Crow were engaged in the selling and supplying of coal to the city of Cleveland by and for the Costanzo Coal Mining Company; and that at all times during said period the said John L. Abbott was a duly appointed, qualified and acting senior assistant mechanical engineer of the city of Cleveland and in said position was an agent and employee of said city of Cleveland.
"That during the time aforesaid, at the county aforesaid, Frank Costanzo, Ray L. Berry and Robert L. Crow unlawfully and corruptly did give to the said John L. Abbott various sums of money at divers times and dates in the approximate sum of twenty-four hundred ($2400.00) dollars to influence the said John L. Abbott with respect to his official duties and to influence his action, opinion and judgment in a matter pending, or that might legally come before him, and particularly to influence the said John L. Abbott with reference to the purchase of coal from the Costanzo Coal Mining Company, and with reference to the analysis, burning and use of said coal by the city of Cleveland contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio."
The third, fifth and seventh counts are similar in form except that they, respectively, charge Costanzo, Berry and Crow with a payment of $191.40 from January 22, 1935, to July 27, 1935; $221.95 from February 19, 1934, to January 22, 1935: and $50 from November 1, 1931, to March 1, 1932. The second, fourth, sixth and eighth counts charge Abbott with corruptly accepting a bribe from the other three named defendants. The defendant Abbott pleaded guilty to the even-numbered counts and the three defendants, Costanzo, Berry and Crow, were tried jointly to a jury and were found guilty on each of the odd-numbered counts. The defendants Costanzo and Crow served six months and five months respectively in the county jail and took no appeal. Berry was sentenced to the Ohio penitentiary for an indeterminate period on each of the odd-numbered counts.
On appeal by the defendant Berry, the Court of Appeals, holding that the indictment did not state an offense, reversed the judgment of the trial court for error in overruling the demurrer to such indictment and entered judgment discharging such defendant. This court granted the state's motion for leave to appeal.
Mr. Frank T. Cullitan, prosecuting attorney, and Mr. Neil W. McGill, for appellant.
Messrs. Bushnell, Burgess Fulton, for appellee.
The state of Ohio asks a reversal of the judgment of the Court of Appeals and an affirmance of the judgment of the Court of Common Pleas: insofar as the latter relates to the conviction and sentence of Ray L. Berry to the Ohio penitentiary. Two questions are presented: (1) Did the indictment state an offense against the defendant Berry? (2) Assuming that the indictment was sufficient, did the evidence warrant his conviction?
Was the indictment sufficient?
The odd-numbered counts charged the defendant Berry and others with corruptly giving a bribe to John L. Abbott and it was alleged in each that he, Abbott, "was a duly appointed, qualified and acting senior assistant mechanical engineer of the city of Cleveland and in said position was an agent and employee of said city of Cleveland."
Each of such counts is challenged solely for the above-quoted language and counsel for defendant Berry maintain that such language does not show Abbott to be an incumbent of any of the positions, official or otherwise, enumerated in Section 12823, General Code.
That section insofar as it relates to giving a bribe, provides: "Whoever corruptly gives * * * to a member or officer of the General Assembly, or of either house thereof, or to a state, judicial or other officer, public trustee, or an agent or employee of the state of such officer or trustee, either before or after his election, qualification, appointment or employment, any valuable thing * * * to influence him with respect to his official duty, or to influence his action, vote, opinion or judgment, in a matter pending, or that might legally come before him * * * shall be imprisoned in the penitentiary not less than one year nor more than ten years."
There was no motion to quash and no request for a bill of particulars.
Under the new Code of Criminal Procedure many technicalities which formerly favored the accused are no longer of any avail and "defects or imperfections which do not tend to prejudice the substantial rights of the defendant upon the merits" are not fatal to an indictment. Section 13437-7, General Code. Furthermore it is not necessary that the allegation of the indictment be in the language of the statute and legal requirements are complied with if the allegations are sufficient to give the accused notice of the offense charged. Section 13437-4, General Code.
The indictment does not specifically charge that Abbott was (a) an officer, (b) an agent or employee of the state, or (c) an agent of an officer or officers. It might have charged that Abbott was an officer, to wit, senior assistant mechanical engineer. Admittedly the position of senior assistant mechanical engineer is not one of which the court takes judicial notice as being a public office. So we pass by the state's claim that the indictment is valid in that it charges Abbott with being senior assistant mechanical engineer without the additional allegation that, as such, he was an officer. In effect the charges in the indictment recite that Abbott held a position in which he was an agent and employee of the city of Cleveland. Therefore in the final analysis the real question raised by the demurrer is whether the odd-numbered counts are fatally defective because the person alleged to have received bribes is designated as an agent and employee of the municipality. Had the indictment charged that Abbott was an agent and employee of an officer or officers of the city of Cleveland then there would be no question of its sufficiency. Barker v. State, 69 Ohio St. 68, 68 N.E. 575. Yet an incorporated city being inanimate can only act through officers or agents. Its officers are the direct representatives of the city in their respective capacities and perform many of their duties by and through agents. The maxim qui facit per alium facit per se applies here. That is to say, the agent of a city's officer is necessarily an agent of the city itself. Whenever an officer of a municipality acts in its behalf through an agent or employee, such agent or employee is the agent or employee of the municipality itself. This court, therefore, is constrained to hold that the bribery statute even by a strict construction applies to every agent and employee of a municipality and that the indictment was sufficient.
Did the evidence warrant conviction?
This question stated more definitely is whether the evidence shows that the defendant Berry either as principal or as aider and abettor participated in giving a bribe or bribes to Abbott as an agent or employee of the city of Cleveland.
During the time in question Abbott was employed in the department of public utilities which is an agency of the city of Cleveland, a charter municipality. This department had power through its director of public utilities and other officers to make contracts for the city as its principal. The director was appointed by the mayor and was a member of his official cabinet. The coal contracts were submitted for approval to the board of control which consisted of the mayor's cabinet and that board made the award.
Abbott began working for the city of Cleveland as combustion engineer on July 11, 1922. He was thereafter given an appointment as mechanical engineer on January 1, 1927. This latter position was reclassified by ordinance of February 16, 1928, as senior assistant mechanical engineer, in which latter position Abbott continued from that time until the date of his dismissal on April 25, 1938. In that position it was Abbott's duty to approve the analyses of coal before it was purchased by the city. The defendants Costanzo, Berry and Crow were, respectively, president, vice president and sales manager, and sales representative in Cleveland for the Costanzo Coal Mining Company. The evidence shows that over a period of years, Berry, Costanzo and Crow, conspiring together, paid Abbott upwards of $3,000 to alter analyses of coal so that the Costanzo Coal Mining Company could obtain contracts for the sale thereof to the city of Cleveland. It was the duty of Abbott in his capacity as senior assistant mechanical engineer to pass upon and approve or disapprove these analyses. By altering them, Abbott enabled the conspirators to obtain many coal contracts for their company.
It is urged by counsel for defendant that Berry himself gave no bribes to Abbott. It appears from the evidence that they were frequently together and spent considerable time with each other. With reference to the happenings at a lunch attended by Abbott and Berry, Abbott testified: "Mr. Berry handed me $50. It was a $50 bill and he said — I said, 'I don't want to take that,' and he said, 'Well, now, for the help that you can give me when this contract comes out. Don't accept it as a bribe, but,' he said, 'more as a Christmas present.' So I took the $50."
With respect to the $2400 transaction which involved 120,000 tons of coal, Crow talked to Abbott and promised him two cents a ton for his help in making the sale. Later Berry stated to Abbott, in substance, that he (Abbott) would receive the two cents a ton if Berry's company was awarded the contract. Thereupon Abbott altered the analysis by lowering the ash and sulphur percentage, thus saving the company from paying a penalty. The company got the contract and Abbott received his two cents per ton amounting to $2,400, less a deduction for Crow's income tax. Corruption of Abbott by bribery covers a considerable stretch of time and includes the periods specified in the indictment. Further recital of facts showing Berry's implication would be of little avail. The state's evidence with respect to Berry's guilt is ample and the proof shows that Abbott received the bribe money as an agent or employee of the city of Cleveland.
In our judgment the odd-numbered counts of the indictment are sufficient in form and substance and the evidence warranted the conviction of defendant Berry thereon.
The judgment of the Court of Appeals is reversed and that of the Court of Common Pleas is affirmed.
Judgment reversed.
WEYGANDT, C.J., TURNER, HART, ZIMMERMAN and BETTMAN, JJ., concur.