Opinion
Appeal from Superior Court, San Diego County; Geo. H. Cabaniss, Judge.
Harry K. Weitzel was convicted of bribery, and he appeals. Judgment reversed.
COUNSEL
Sample & Harden, of San Diego, for appellant.
U.S. Webb, Atty. Gen., John W. Maltman, Deputy Atty. Gen., and Chester C. Kempley, of San Diego, for the People.
OPINION
YORK, J.
The defendant was convicted under the first and third counts of an indictment, based on section 165 of the Penal Code of the state of California, of bribery. The evidence sufficiently discloses that the defendant on or about the 20th day of June, 1923, was a duly elected, qualified, and acting member of the common council of the city of San Diego, and that on that day he offered to one Ed Fletcher and Charles F. Stern to cast his official vote in said common council in favor of the purchase by the city of San Diego of the reservoirs, impounding and water distributing system owned by the Cuyamaca Water Company, in consideration of the payment to him of the sum of $100,000. The evidence, introduced under a separate count of the indictment, also is sufficient to prove that on the 23d day of June, 1923, while still a member of the common council, he offered to one Ed Fletcher, in consideration of the payment to him of the sum of $4,000, to cast his official vote as hereinafter stated, as a member of the said common council in the matter of calling an election for the purpose of submitting to the electors of the city of San Diego the question of the ratification of the annexation to the city of San Diego of the territory formerly known as the city of East San Diego. The evidence in this case does not disclose anything as to the nature of the offer, except the fact that the defendant approached Ed Fletcher and Charles F. Stern and proposed that they pay him the sum of $100,000 for his vote in the matter charged in the first count of the indictment, and that as to the separate count referred to herein, that he likewise approached Ed Fletcher and proposed to him that he would favor ratification of the annexation of the city of East San Diego to the city of San Diego by way of an election, rather than by resolution of the council, if Colonel Fletcher would pay to the defendant the sum of $4,000 for his services. Municipal Consolidation Act of 1913, Deering’s Gen. Laws 1923, Act 5166, § 3.
The only point at issue on the appeal is whether or not such proof establishes a crime of "agreeing to receive " a bribe. The defendant contends that it was the intention of the Legislature, in enacting the first part of section 165 of the Penal Code, to make it a crime for any person to "offer" a bribe to a member of the common council, but in enacting the remaining portion of that section, to make a special provision exempting a member of the common council who merely "offers" to receive a bribe. The defendant contends that the Legislature, in the several sections of the Penal Code relating to bribery, denounced as a crime every "offer" or "proposition" advanced by any officer in the state of California to "accept" "receive" a bribe, save only members of the common councils, boards of supervisors, and boards of trustees of any city, and that, as to these officers, it was not the intention and purpose of the Legislature to punish them for offering to receive any bribe, unless such offer was in some way accepted, and some action of some other party intervened so as to make it an acceptance or agreement to accept, or unless they actually did receive such a bribe.
As we have no criminal common law, crimes in California are statutory. Unless a statute exists making an act a crime or public offense (Pen. Code, § 6), no one can be punished for the commission of such act, however heinous it may be. Therefore the charge herein does not state a public offense, unless the facts alleged constitute a crime under section 165 of the Penal Code, which at the time of the offense read as follows:
"Every person who gives or offers a bribe to any member of any common council, *** with intent to corruptly influence such member in his action on any matter or subject pending before, or which is afterward it be considered by, the body of which he is a member, and every member of any of the bodies mentioned in this section who receives, or agrees to receive any bribe upon any understanding that his official vote, opinion, judgment, or action shall be influenced thereby, or shall be given in any particular manner or upon any particular side of any question or matter, upon which he may be required to act in his official capacity, is punishable," etc.
We can find no other section of our Code which denounces only the act on the part of the official of receiving or agreeing to receive a bribe. Each of the other sections of our Code covers and denounces the asking of a bribe, as well as the agreeing to receive a bribe, as an offense. The first and third counts of the indictment do not change any asking of a bribe. They charge that defendant did willfully, etc., "agree to receive " a bribe. Neither do they allege that the defendant, at the time, was acting as an executive or as a judicial officer. It cannot therefore be claimed that the indictment is based on section 68 of the Penal Code, nor can it be claimed that the indictment is based on section 93 of the Penal Code. By an amendment passed by the Legislature in 1905 (St. 1905, p. 650), the offense on the part of any person giving or offering a bribe to a member of a common council was not modified. The latter half of the section, dealing with offenses on the part of members of common councils, was changed so that instead of reading as formerly that every member of any such body "who receives or offers to receive any such bribe, is punishable," etc., the statute by such amendment was made to read:
"Every member of any of the bodies mentioned in this section who receives, or agrees to receive any bribe upon any understanding that his official vote, opinion, judgment, or action shall be influenced thereby, or shall be given in any particular manner or upon any particular side of any question or matter upon which he may be required to act in his official capacity, is punishable," etc.
In the case of United States v. Bashaw, 50 F. 749, 754, 1 C. C. A. 653, 658, it was said:
"The very fact that the prior act is amended demonstrates the intent to change the pre-existing law, and the presumption must be that it was intended to change the statute in all the particulars touching which we find a material change in the language of the act."
By referring alone to the mere wording of section 165 of the Penal Code before its amendment in 1905 and after such amendment, it will have to be held that the Legislature intended a change in the meaning of said section, and a change in the offense of bribery as therein defined and denounced. Before said amendment, said section denounced as punishable by imprisonment every member of every common council who receives or offers to receive any bribe. Whereas, by the amendment, the statute was changed so that thereafter it denounced only "every member of any of the bodies mentioned in this section who receives or agrees to receive any bribe upon any understanding that his opinion, vote, judgment, or action shall be influenced," etc.
Therefore, under section 165 of the Penal Code, as it now reads, and as it read at the time of the commission of the alleged offense, there must have been a meeting of the minds. In other words, the party to whom the offer was made must have agreed to make such payment. In People v. Squires, 99 Cal. 327, 33 P. 1092, the conviction was upheld on the ground that, under section 93 of the Penal Code, it is a crime to ask, as well as to receive, or agree to receive any bribe, and the conviction was sustained for the reason that the evidence supported the charge in that the defendant had asked for a bribe, which was all that was necessary to warrant an affirmance of the judgment, inasmuch as asking for a bribe was prohibited by the statute on which that indictment was founded; namely, section 93 of the Penal Code. But that case holds that to complete the offense of asking it is not necessary that the party approached shall consent to give a bribe. "Unless he does so there could be no agreement or understanding." The party defendant in the Squires Case was a juror, and hence would come under said section 93 of the Penal Code. In the case of People v. Coffey, 161 Cal. 433, 119 P. 901, 39 L. R. A. (N. S.) 704, the Supreme Court was passing on a case where the defendant was prosecuted under the identical statute under which the prosecution proceeded in the case at bar. In that case, they state, on page 436 (119 P. 902):
"Defendant was indicted under section 165 of the Penal Code, and was charged as a supervisor with having ‘agreed to receive and receiving’ a bribe of four thousand dollars from James L. Gallagher, Abraham Ruef, and Tirey L. Ford. It was alleged that the agreement to receive the bribe and the reception of the bribe were ‘with the willful, felonious, unlawful and corrupt intent’ upon the part of Coffey that his official vote, opinion, judgment, and action should be influenced thereby in the matter of granting to the United Railroads of San Francisco a franchise for an overhead trolley system."
Also, on page 450 (119 P. 908) in said case, the following was held:
"The charge against this defendant, as we have seen, is under section 165 of the Penal Code. It is not for asking or soliciting a bribe. It is for ‘agreeing ’ to receive and ‘receiving ’ a bribe. The agreement necessarily carries with it the essential concept of a criminal and corrupt bargain. There can be no agreement without a meeting of minds, and a meeting of minds for this base bargain is declared to be a crime."
It necessarily follows that in the case at bar no public offense was proven by the evidence introduced, as there was no evidence to show that any of the parties approached by the defendant ever agreed or promised to pay any bribe solicited by him.
The judgment and order are reversed.
I concur: CONREY, P. J.