mon law is not indictable."14 It has been held that knowingly having in one's possession a box containing counterfeit coins, and the delivery of the same to a common carrier, consigned to a man in another city, is not a crime.15 In the case cited, the defendant delivered a box containing two thousand eight hundred counterfeit shillings and one thousand counterfeit sixpences to a coach officer for carriage to a man in Glasgow. The box was stopped, however, at the place where it was received, and the court held that the act was not a sufficient uttering to make it a crime. But a mere silent offer to pass a document which is known to be a forgery is sufficient,18 So is mailing a forged document for delivery in another jurisdiction.17 In England, 18 and also in this country,19 statutes have been passed which make having in one's possession a forged document, with intent to pass it, a crime. Scienter may be proved by evidence of other crimes of a similar nature.20 14 Commonwealth v. Morse, 2 Mass. 138. 15 Rex v. Heath, Russ. & Ry. 184. 16 State v. Calkins, 73 Iowa 128, 34 N. W. 777; United States v. Long, 30 Fed. 678. 17 Reg. v. Finkelstein, 16 Cox Cr. C. 107. 18 8 & 9 Wm. III, ch. 26. 19 U. S. Comp. Stat. (1916), § 10321, and statutes of the particular states; Martin v. State (Tex. Cr.), 194 S. W. 1105. 20 Anson v. People, 148 Ill. 494, 35 N. E. 145; Commonwealth v. Russell, 156 Mass. 196, 30 N. E. 763; People v. Kemp, 76 Mich. 410, 43 N. W. 439. § 585. Definition of bribery.-Bribery is the act of voluntarily giving or receiving something of value in corrupt payment of an official act.1 § 586. Another view.-According to Blackstone, the official act must be one connected with the administration of jus 1 People v. Peters, 265 I11. 122, 106 N. E. 513, Ann. Cas. 1916 A, 813n; People v. Halpin, 276 Ill. 363, 114 N. E. 932; State v. Williams, 22 N. Mex. 337, 161 Pac. 334; Sims v. tice. This was also Lord Coke's view.3 As understood in this country, however, the official act may be judicial, legislative or administrative. The gist of the crime of bribery is the tendency of the bribe to pervert justice and thereby injuriously affect the public; and since this tendency is applicable to official acts of all three of the governmental departments Blackstone's definition of the crime is too narrow. As declared by Justice Dalrimple, "It is said that the common-law offense of bribery can only be predicated on a reward given to a judge or other official concerned in the administration of justice. ***The later commentators, supported as I think, by the adjudged cases, however, maintain the broader doctrine, that any attempt to influence an officer in his official conduct, whether in the executive, legislative, or judicial department of the government, by the offer of a reward on pecuniary consideration, is an indictable common-law misdemeanor. *** Indeed, the authorities seem to be all one way. Neither upon principle nor authority can the crime of bribery be confined to acts done to corrupt officers concerned in the administration of justice."5 § 587. Official acts.-Voting for a candidate for a public office in any of the three governmental departments is an official act, and bribing a voter is indictable at common law. It is bribery to pay a state legislator money to vote for a certain candidate for United States senator. And it has been held bribery for a candidate for a county office to offer to return into the county treasury part of his salary if elected.R A promise by a candidate for county judge to draw papers in settlement of estates free of charge if elected, is not bribery. On the other hand it has been held not bribery to give a note as an inducement to vote for the removal of the county seat.10 It is not bribery to offer money to a public official to induce him to refrain from performing acts for which there is no legal or constitutional warrant.11 Nor is it bribery to give a present to an official, after the performance by him of an official act, provided there was no understanding between him and the donor relative thereto prior to the doing of the official act, since the gift is not made in corrupt payment thereof.12 An offer to give or receive a bribe, in corrupt payment of an official act, is indictable at common law.13 Strictly speaking, however, it is an attempt to commit bribery rather than bribery. Where one party knowingly carries a bribe from another party to a third party who receives it in corrupt payment for an official act all three are guilty of bribery.14 Bribery at common law is a misdemeanor. The fact that one who holds himself out as an officer has no legal right to the office, and has no power to do the act for which bribe was taken or offered, is not a defense to a charge of bribery. 15 It is generally held not to be bribery to offer a gift to the public to secure the passage of a law, or ordinance, as a promise 8 State v. Purdy, 36 Wis. 213, 17 Am. Rep. 485. 9 State v. Bunnell, 131 Wis. 198, 110 N. W. 177, 11 Ann. Cas. 561. 10 Herman v. Edson, 9 Nebr. 152, 2 N. W. 368. 11 United States v. Boyer, 85 Fed. 425. 12 Hutchinson v. State, 36 Tex. 293. 13 Walsh v. People, 65 Ill. 58, 16 Am. Rep. 569; State v. Ellis, 33 N. J. L. 102, 97 Am. Dec. 707n; Ru dolph v. State, 128 Wis. 222, 107 N. W. 466, 116 Am. St. 32n. 14 People v. Northey, 77 Cal. 618, 19 Pac. 865, 20 Pac. 129; People v. Kerr, 6 N. Y. S. 674, 6 N. Y. Cr. 406. 15 People v. Jackson, 191 N. Y. 293, 84 N. E. 65, 15 L. R. A. (N. S.) 1173, 14 Ann. Cas. 243; Ex parte Winters, 10 Okla. Cr. 592, 140 Pac. 164, 51 L. R. A. (N. S.) 1087. by a citizen to pay part of the expense of opening a street;16 but the contrary has been held as to a bonus offered by a city, which is a candidate for a county seat.17 § 588. Definition of embracery.-Embracery is a corrupt attempt to influence a jury to render their verdict in favor of a particular party.18 § 589. Nature of the influence.-The influence may consist of promises, entreaties, persuasions, gifts, treating, and the like. It does not, of course, include legitimate arguments of counsel. On the other hand, where counsel unduly take advantage of the opportunity afforded and corruptly influence the jury they are guilty of embracery. 19 § 590. Who can commit embracery.-The crime of embracery can be committed by a party to the suit, a witness, counsel, a stranger, or even by one of the jurymen. § 591. Attempt to commit the crime.-Since embracery itself is only an attempt, an attempt to commit it is not indictable. As said by Chief Justice Lewis, "As the crime itself consists of a mere attempt to do an act or to accomplish a result, it is difficult to comprehend how there can be an attempt to commit such crime. Any attempt or effort corruptly to influence a juror, whether it be successful or not, is itself embracery."20 In this case the defendant, a juror in a civil action, was charged with "the crime of attempt to commit the crime of embracery," and a demurrer to the indictment was sustained on the ground that no crime was charged. It is to be observed that the fact that the jury disagree, or that they render a true verdict in the case, is no defense to a subsequent prosecution for embracery. Embracery at common law is a misdemeanor. 16 State v. Orange, 5 N. J. L. 111, 22 Atl. 1004, 14 L. R. A. 62. 17 Ayres v. Moan, 34 Nebr. 210, 51 N. W. 830, 15 L. R. A. 501. 18 State v. Brown, 95 N. Car. 685; State v. Sales, 2 Nev. 268; Gibbs v. Dewey, 5 Cow. (N. Y.) 503; 4 Bl. Comm. 140. 19 1 Hawk. P. C. 548, ch. 85. 20 State v. Sales, 2 Nev. 268. |
