Spivey v State

Annotate this Case

Spivey v State
1940 OK CR 77
104 P.2d 263
69 Okl.Cr. 397
Decided: 06/13/1940
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Indictment and Information-Common- Law Rule Applicable to Motion to Quash Indictment. At common law an indictment is invalid and may be quashed where it is found and returned by a grand jury not legally constituted, or where there was no legal and competent evidence before the grand jury upon which it was based. Under the statute the motion to quash an indictment takes the place of a plea in abatement at common law. Sec. 2, 12 Okla, St. Ann. § 2.

2. Same-Question of Competency of Accomplice Witness Before Grand Jury May not Be raised on Motion to Quash. The question of the competency or incompetency of an accomplice witness before a grand jury is not a question that can be raised on a motion to quash the indictment, as the fact that a witness is an accomplice goes only to his credibility.

3. Same-Indictment Charging Named Members of City Board of Education With Bribery Held Sufficient. An indictment, charging in language of the statute that named members of city board of education agreed to receive and received from named person a bribe of $6,000 upon agreement that their action as

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such officers would be influenced by such bribe in voting to accept a bid of $200,103.50 for royalty in certain real estate, held sufficient.

4. Bribery-Member of City Board of Education Held "Executive Officer" Within Meaning of Bribery Statute. Member of a city "board of education" held an "executive officer" within bribery statute, since an officer who is neither a judicial nor a legislative officer necessarily belongs to the executive department of the government, and is an "executive" or administrative officer.

5. Evidence-When Evidence of Other Offenses Admissible. Evidence of other offenses is admissible when it tends directly to establish the particular crime, and such evidence is usually competent to prove the particular crime when it tends to establish motive, intent, a common scheme or plan, embracing the commission of two or more crimes, so related to each other that proof of one tends to establish the others.

6. Evidence-Admissibility of Acts or Declarations of Coconspirators. Where several persons have united for an illegal purpose, any act done by one of them, or any of them, or any declaration made touching the prosecution of the common purpose or design, being regarded as the act of all, is admissible against all or any of the conspirators.

7. Evidence-All Participants in Commission of Crime Are "Accomplices." All who participate in commission of crime as principals, aiders and abetters, or accessories before the fact are "accomplices," whose evidence requires corroboration.

8. Evidence-Evidence of Receipt of Other Bribes Admissible in Prosecution of Public Officer for Receiving Bribe. Evidence of receipt of bribes on occasions other than that charged is admissible in the prosecution of a member of a board of education for receiving bribes, such acts being a part of a general scheme to obtain money corruptly through the abuse of a public trust.

9. Evidence-One Initiating Bribery Transaction an "Accomplice" as Matter of Law. In bribery case, one who initiates transaction and takes part in commission of offense is an "accomplice" as a matter of law.

10. Appeal and Error-Necessity for Supporting Assignments of Error by Citation of Authority and Argument. Assignments of error not supported in the brief by the citation of authority and argument, and presenting no fundamental error, will not be reviewed.

11. Bribery-Evidence Sustained Conviction of Member of City Board of Education for Accepting Bribe. In prosecution of member of city board of education for receiving a bribe to

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corruptly influence his official action, evidence reviewed and held sufficient to support the verdict and judgment of conviction.

Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.

Ed. W. Spivey was convicted of accepting a bribe, and he appeals. Judgment affirmed.

In this case the indictment upon which appellant, Ed W. Spivey, was tried and convicted and sentenced to imprisonment in the state penitentiary for the term of ten years, in the district court in and for Oklahoma county, omitting caption, reads as follows:

"At the regular January, 1938, Term of the District Court of the Thirteenth Judicial District of the State of Oklahoma, held in and for Oklahoma County, in the State of Oklahoma, at the City of Oklahoma City, the Grand Jury of said County, twelve good and lawful men, then and there duly and legally empanelled, sworn and charged, according to law, to diligently inquire into, and true presentment, make, of all public offenses against said State of Oklahoma committed or triable within said County, upon their oaths, in the name and by the authority of said State of Oklahoma, do present and find that in said County of Oklahoma, in said State of Oklahoma, on the 17th day of September in the year of our Lord, One Thousand Nine Hundred and Thirty Six, and anterior to the presentment hereof, but within three years, the said R. H. Price and Ed W. Spivey being then and there members of The Board of Education of the City of Oklahoma City of the State of Oklahoma, duly elected, qualified and acting as such, and the said Frank Wilkins being then and there the attorney for The Board of Education of the City of Oklahoma City of the State of Oklahoma, duly appointed, qualified and acting as such, and each and all of said defendants above named being then and there charged by law to perform the duties of his office with fidelity and not to knowingly receive, directly or indirectly, any money or other valuable thing for the performance or non-performance

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of any act or duty pertaining to his said office, did conjointly and while confederating and acting together, unlawfully, wilfully, purposely, corruptly and feloniously commit the offense of Bribery in the manner and form as follows, to wit:

"That the Board of Education of the City of Oklahoma City of the State of Oklahoma, being convened in special session on the 14th day of September, 1936, for the transaction of business pertaining to said School District, and a quorum of said Board of Education being present at said meeting, bids were received in response to an advertisement theretofore made and published by said Board for the sale of the undivided interest of the said Board of Education in and to certain oil and gas in and under certain tracts of land described in said advertisement, and that upon receipt of said bids by said Board of Education a motion was made by Ed W. Spivey, which was duly seconded and adopted, that said bids be referred to the oil and gas committee of said Board of Education and to the attorney for said Board for recommendation, the said Ed W. Spivey being then and there a member of said oil and gas committee, and thereafter, on the 15th day of September, 1936, The Board of Education of the City of Oklahoma City of the State of Oklahoma being convened in adjourned session and a quorum of said Board being present, the report of said oil and gas committee was received and read, and among other matters and recommendations contained in said report was the following, 'This committee is of the further opinion that a sale of the royalty involved in Northeast High School would be to the best interest of the School District, and it is the recommendation of this committee that the high offer of S. LeRoy Estes be accepted and that all other proposals be rejected, and that all checks submitted by the various bidders be returned to them immediately;' that the bid of S. LeRoy Estes thus recommended by said oil and gas committee for acceptance by the Board was in the sum of $20,103.00 to include all runs from the property to date of bid, and that the property covered by the bid and offer of the said S. LeRoy Estes is described as follows; to wit: Lots 7, 9, 10, 39, 41, 43, 45

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and 47, Block 5; Lots 1, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25, 27, 29, 31, 33, 35, 37, 39, 41, 43, 45 and 47, Block 6; Lots 2, 4, 6, 8, 10, 12, 14 and 16, Blocks 5, 6 and 7, Elliott Place Addition to Oklahoma City, Oklahoma, same being located in the Northwest Quarter of Section 23 Township 12 North Range 3 West; that upon the reading of the report of said oil and gas committee, a motion was duly made and seconded by Ed W. Spivey that the recommendation of the oil and gas committee be approved as read, which motion was adopted by the Board; that thereafter, and on the 17th day of September, 1936, the said S. LeRoy Estes and Roy M. Smith met the defendant, R. H. Price and the defendant Frank Wilkins, at the office of the said Frank Wilkins in the Terminal Building in Oklahoma City, Oklahoma, and then and there the said S. Le Roy Estes paid to the said Frank Wilkins, the sum or $6,000.00 in cash, lawful money of the United States of America, which said sum of money, he the said Frank Wilkins, did then and there receive and accept for the use and benefit of himself, Ed W. Spivey and R. H. Price, and that the same was then and there paid to and accepted by the said Frank Wilkins as a gift and gratuity in consideration of the official services of the defendants, Ed W. Spivey and R. H. Price, and their acts, influences and recommendations as members of the said Board of Education and of the oil and gas committee of the said Board of Education about and concerning the bid of the said S. LeRoy Estes for the oil and gas interest of said Board of Education in and under the real estate hereinabove described, and as a gift and gratuity in consideration of the acts and services of the said Frank Wilkins as attorney for said Board of Education, and for his official services, acts and influence while acting with the said oil and gas committee of said Board of Education in the matter of the bid of S. LeRoy Estes as aforesaid, and the Grand Jurors aforesaid, upon their oaths aforesaid, do present and charge that the said Ed W. Spivey, R. H. Price and Frank Wilkins, in the manner and form aforesaid and by means aforesaid, did unlawfully, wilfully, corruptly and feloniously commit the offense of bribery, contrary to the

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form of the Statute in such cases made and provided, and against the peace and dignity of the State of Oklahoma."

Endorsed:

"State of Oklahoma vs. R. H. Price, Ed W. Spivey and Frank Wilkins.

"Indictment for Bribery.

"A true Bill. (Signed) William H. Hahner, Foreman of the Grand Jury."

Also the names and addresses of the witness examined before the grand jury:

"Presented in open court by foreman of the Grand Jury in the presence of the Grand Jurors and filed July 2,1938.

"Cliff Myers,

"Clerk, District Court,
"Lewis R. Morris,
"County Attorney, Oklahoma County."

On December 12, 1938, the court overruled the defendant's motion for new trial and rendered judgment pursuant to the verdict.

This case and the companion case of Wilkins v. State are presented in a joint brief.

The defendant filed a motion to quash, vacate and set aside said indictment, or a plea in abatement thereto, and filed application for leave to take testimony in support of said motion. The application was granted.

The transcript of the testimony taken in support of said motion and plea covers more than 300 pages of the case-made.

Following the arguments of the respective counsel, the court overruled said motion and plea. Exceptions reserved.

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The defendant asked for a severance and took time to plead.

The defendant filed a demurrer to said indictment on the grounds:

"(1) That the same does not state facts sufficient to constitute the offense of bribery as therein charged, or any public offense.

"(2) That he is not an officer within the purview of the bribery statute under which he is charged in said indictment or any other statute of the state.

"(3) That said indictment is so indefinite and uncertain that the same does not sufficiently advise the defendant of the nature of the alleged offense therein charged."

This demurrer was overruled and exception taken. Thereupon the defendant entered a plea of not guilty.

At the close of the state's evidence in chief, the defendant moved the court to advise the jury to acquit him, for the reason that the evidence was insufficient to warrant a conviction. The motion was overruled. Exception allowed.

Again, at the close of all the evidence the defendant filed a motion asking the trial court to advise the jury to acquit him. The motion was overruled. Exception allowed.

In the case at bar and the companion case of Frank Wilkins v. State, pending on appeal, counsel for both appellants have filed a joint brief.

Counsel for the state in answer brief say: The statement of the case as contained in brief of appellants, extending from page 1 to page 43, is here adopted by the state as a general outline of the evidence and the testimony

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of the witnesses primarily relied upon by the state in establishing the elements of the offense charged.

The abstract of said testimony in the joint brief of the companion case, Wilkins v. State, is as follows:

"E. P. Watts was employed by Oklahoma City, but was an oil and gas broker on the side. He knew Spivey and had known him for several years and referred to him as Uncle Ed. In the early part of September, 1936, Watts interested himself in an effort to sell, as a broker, some of the board's royalty. He learned from the clerk-business manager that Price was chairman of the oil and gas committee and thereupon contacted him and inquired if the Northeast high school royalty was for sale and if so the price thereof. Price told him the royalty might be for sale and asked him what he would give, but he declined to make an offer and then Price referred him to the defendant (Wilkins) as the board's attorney. He left Price and went to the office of the defendant (Wilkins) and made inquiry of him as to the sale of said royalty. The defendant (Wilkins) made some brief reference as to the sale procedure and referred him to Spivey. Shortly following this Watts contacted Spivey and made inquiry about the sale of said royalty and on being advised that the royalty might be for sale Watts told Spivey that he had talked to Price and the defendant (Wilkins.) No price was agreed upon during this conference with Spivey but Watts told him he would figure on the price and see him later.

"After Watts had this conversation with Spivey he contacted Estes for the purpose of interesting him in the purchase of the royalty. Estes told him to find out what the price was. Watts contacted Price again and made him an offer of $20,000, and thereupon the following conversation took place between them, according to Watts: He, Price said:

"'It wasn't enough money; so, he said, I would have to raise my bid; so, I asked him, then, well, would there be anything on the side and he kinda looked at me and shook his head and he told me, or he asked me if I knew Mr.

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Spivey, and I told him, "Yes, sir," and I knew him real well and I had known him as "Uncle Ed", I had bought several hundred dollars worth of furniture from him. He referred me back again to see Mr. Spivey again, so I went back to see him.'

"Following this Watts contacted Spivey the second time and during this conversation Spivey proposed to sell said royalty for $20,000 to the board and $6,000 on the side. Watts relayed this proposal to Estes and secured his approval of the deal, which fact he, Watts, reported to Spivey and told him that Estes, would see him later. Estes saw Spivey and confirmed the deal which Watts had made and thereupon Watts went out of the picture and Estes took on the negotiations. After the deal was closed on September 17, 1936, Estes paid Watts $775 for his service evidenced by a check of that date. Smith as a matter of fact furnished the money.

"After the Northeast high school royalty bribe transaction was closed and Watts received his proportionate share of what he termed his commission, he initiated another bribery deal in the spring of 1937 for the Webster royalty. His associate in this deal was William Eckroat and this deal may be termed the Watts-Eckroat-Spivey deal. Estes and Smith, the associates of Watts in the other deal, were not parties to this transaction. This is true as to Price and the defendant (Wilkins), Eckroat and Watts were to divide the profits equally. Watts contacted Spivey and made a deal with him by which Eckroat was to bid $25,000 for the Webster royalty and Pay $6,000 on the side making a total purchase price of $31,000. Watts reported this deal to Eckroat and secured his approval thereof, and thereupon Eckroat claims to have prepared a bid of $25,000 which either he or Watts claims to have filed with the board of education. The records of the board of education do not show that such a bid was ever filed. The clerk-business manager testified that he never saw or heard of such a bid but there was some discussion among the members of the board about an Eckroat proposal of some kind. There was some proof to the effect that the board passed a resolution accepting this bid. Be this

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as it may, the Eckroat transaction was never consummated, but the record does show that both Watts and Eckroat were willing to bribe Spivey in order to put this deal through.

"While this deal was on Estes and Smith upon the one hand and Spivey and the defendant (Wilkins) upon the other had another bribery deal on for the purchase of this royalty by which they were to pay $21,000 to the board and $7,000 on the side, making a total of $28,000. Neither one of these deals was consummated, but the record shows that Estes and Smith were willing to put over another bribery deal with Spivey and the defendant (Wilkins) and that after they were unable to do so they turned their guns loose upon the board of education and undertook at all odds to buy the Webster royalty, but did not. We shall presently outline the history with reference to the sale of the Webster royalty and their activities in connection therewith.

"S. LeRoy Estes was born in Chickasha, attended the public schools of Bartlesville, and while there met and became acquainted with Harold Dodson, the young lawyer hereinbefore referred to as officing with the defendant (Wilkins). Estes moved to Oklahoma City in 1931, and lived there until July, 1938, during which time he was engaged in the royalty business. At the time he testified he was living in Abilene, Tex., and engaged in the same business there. He knew Smith and had been associated with him in some business matters. He also knew Watts in a general way. He knew neither the defendant (Wilkins) nor Spivey until he met them in connection with the purchase of the Northeast high school royalty. He met and talked to Price about two months before he was contacted by Watts.

"In the early part of September, 1936, Watts told Estes of the deal which he had on with Spivey to purchase the Northeast high school royalty for $20,000 to the board and $6,000 on the side, and asked him if he was interested in the deal. Estes told him that he was. Thereupon Watts directed Estes to contact Spivey. This Ested did and

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Spivey confirmed the deal as outlined to Estes by Watts. Spivey directed Estes to contact the defendant (Wilkins) and made an appointment with the defendant (Wilkins) for Estes by telephone. Estes went to his office and talked to him with reference to the deal and the defendant (Wilkins) told him, so he, Estes, said that he, the defendant (Wilkins), understood the deal, and that the payoff amount was correct as he understood it. Estes was not financially able to purchase the royalty and make a pay off, so be interested his friend and associate, who agreed to finance the deal, with knowledge of the nature thereof.

"On September 12, 1936, Estes, with the approval of Smith, prepared and filed a bid with the board of education, by the terms of which he proposed to pay $20,103 for said royalty. This bid was accompanied by a certified check for $5,025.75. $103 was added to the agreed price with the hope that the bid would be in excess of any other bid around $20,000. This bid, as aforesaid, was approved by the board at its meeting of September 15, 1936, and there after Estes, in conjunction with Smith, prepared the mineral deed hereinbefore referred to and presented the same to the defendant (Wilkins) and secured his approval there of.

"During the afternoon of September 16, 1936, Estes, claims to have met the defendant (Wilkins) and Spivey at the Biltmore Hotel and while there discussed with the defendant (Wilkins) the method and manner of closing the deal and paying the payoff, and as a result of this conference with defendant (Wilkins) it was agreed that Estes would come to defendant's (Wilkins) office on the following day, bring the mineral deed and the payoff of $6,000 in currency. Estes advised Smith of the arrangement so made with the defendant (Wilkins) and requested Smith to arrange for the currency and deliver to him on the following day.

"On September 17, 1936, Estes met Smith in front of the Woolworth Building, on Main street, in Oklahoma City. Smith had a brief case with him when they met containing

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two packages of currency, the one of $500 and the other of $6,000. The brief case containing these packages was turned over to Estes by Smith, and they went from there to the office of the defendant (Wilkins). The defendant (Wilkins), Price and Dodson were there when they arrived. The mineral deed had not been signed by Rose, the president of the board, and the defendant (Wilkins) phoned Rose, the president of the board, to come over and sign the deed, which he did in the presence of Estes, Smith and the defendant (Wilkins). Stearley, the clerk-business manager, was sick at home. He had not attested the mineral deed. At the request of the defendant (Wilkins) Dodson and Smith went to Stearley's home to have him attest the deed. When they left Price, Rose, Estes and the defendant (Wilkins) were in his office. Estes was the grantee in the mineral deed, and he had executed and delivered to Smith a mineral deed conveying the minerals to him, and when Smith left with Dodson he, Smith, had both deeds, and the understanding between Estes and Smith was that Estes would hold the $6,000 until he, Smith, phoned him that the two deeds had been filed for record. There was no discussion of the payoff in the office of the defendant while Smith and Dodson were there, and there was no discussion between Estes and the defendant (Wilkins) about the payoff until Price and Rose left the office. Estes and the defendant remained in the office alone for some time and they had a discussion with reference to the payoff, the amount of money Estes had and the denomination of the bills. Estes received a telephone call from Smith while in the office of the defendant (Wilkins) and thereupon turned over and delivered to the defendant (Wilkins) $6,000 in currency.

"After the payoff was made and as Estes was leaving the office, the defendant (Wilkins) suggested to him that he and Smith should give a party for the members of the board. This Estes agreed to do. He then went to Smith's office and advised him that the payoff transaction had been completed and they thereupon settled with Watts. Smith and Estes arranged for a party at the Biltmore Hotel that evening. Estes registered as Johnny Evan and

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was assigned room 703. Spivey, his brother-in-law, and the defendant (Wilkins) attended the party. The party lasted some time, and at one stage of it Smith proposed to pay for some liquor, and thereupon, according to Estes, Spivey said:

" 'Let me pay for it; I have got a thousand dollars of your money, anyway' and then Estes said, 'And just kinda making a joke of it, and he just said it in a kind of a joking way.' As to the defendant he was asked:

" 'I will ask you to state if you recall if there was anything said about who was making the most money out of this Northeast high school deal? A. That was a conversation between Mr. Wilkins and myself.

"Q. What was that conversation? A. I think I had told Mr. Wilkins that they had made more money out of this deal than Mr. Smith and I would.

" 'Q. What did he say? A. I think he just remarked to me, then, that we would make plenty of money on it, something like that.

" 'Q. In other words, just general conversation ? A. Yes, sir.'

"In the Spring of 1937 Estes and Smith initiated a deal with Spivey and the defendant (Wilkins) for the sale of Webster royalty on the basis of $21,000 to the Board and $7,000 on the side, making a total of $28,000. Following this Estes and Smith, in the name of Estes, made an oral bid to the board of $21,000 for this royalty; that at the time this bid was made there were written bids before the board for much larger amounts. The aforesaid Eckroat bid was before the board at that time, so Estes and Smith understood, and they were informed from some source that the Eckroat bid was or would be accepted, and they complained, both to the defendant (Wilkins) and Spivey, that they had been double-crossed. Following this a meeting was had at the home of the defendant (Wilkins) and there were present on the occasion Estes, Smith, Jeff Martin, Capshaw and the defendant (Wilkins). Estes and Smith were mad and sore and claimed that both Spivey

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and the defendant (Wilkins) were of the opinion that Eckroat could not carry out his bid, and Estes claims that the defendant proposed that the payoff be reduced to $4,500 and that he andSmith take on the Eckroat bid of $25,000 plus a payoff of $4,500. This Estes and Smith declined to do, and the proposed payoff deal terminated, and on April 23, 1937, Estes, for and on behalf of himself and Smith, filed a bid with the board for $26,000 for the Webster royalty. The grand jury convened on May 13, 1938. Ten days or two weeks before this Estes testified with reference to two or more conversations which he claims to have had with the defendant (Wilkins). His direct testimony in this regard appears in the record.

"Roy M. Smith lives in Oklahoma City and is engaged in the royalty business. He is a member of the bar but not engaged in active practice-he is on the inactive list. He knows Estes and through him became interested in the purchase of the Northeast high school royalty. Estes outlined to him the deal which he had on to purchase this royalty for $20,000 to the board and $6,000 on the side as a payoff, and asked him to finance the deal which he agreed to do. Estes filed the bid in his name for the use and benefit of himself and Smith, accompanied by a cashier's check of $5,025.75 furnished by Smith. Estes advised him that Watts had initiated the deal and that he would have to be taken care of in the consummation of it. Smith agreed to pay Watts and the amount which Estes paid him was furnished by Smith.

"On September 14, 1936, Smith purchased a cashier's check from the Fidelity National Bank of Oklahoma City for $6,000, payable to the board of education. This cashier's check accompanied the bid of Leo J. Portman hereinbefore referred to covering the Webster royalty. The Portman bid was returned together with the cashier's check and Smith as a matter of fact was back of this bid.

"Smith was advised by Estes that the Estes bid had been approved by the Board and under Smith's direction Estes prepared said mineral deed and secured the approval thereof by the defendant (Wilkins). Smith knew of the

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arrangement which Estes had with the defendant (Wilkins) to close the transaction on September 17, 1937, and make the payoff of $6,000. On the morning of September 17, 1937, Smith received the currency on said cashier's check of $6,000. He drew from his bank account the additional sum of $500 in currency, making a total of $6,500. The banker, at his direction, placed $6,000 of the currency in one envelope and the remaining $500 in another and put both envelopes in a brief case left by Smith. Shortly following this Smith returned to the bank, picked up the brief case and met Estes by appointment in front of the Woolworth Building and there turned over the brief case containing the two envelopes to Estes. After this was done they went to the office of the defendant (Wilkins), and Smith's testimony as to what occurred there is substantially the same as that of Estes, and we will not restate it here.

"Smith and Dodson went from the defendant's office to the home of Staley, the clerk-business manager, where he attested the mineral deed. From there they went to the office of the board of education where the mineral deed was formally acknowledged and delivered upon payment of the purchase price. From there they went to the courthouse where they separated. Smith filed the two mineral deeds for record, the one from the board to Estes and the other from Estes to himself. He thereupon phoned Estes at the office of the defendant (Wilkins) that the two deeds had been filed for record. This phone conversation occurred around the noon hour and shortly after noon Smith and Estes met in Smith's office where Estes made a report as to the payoff. They arranged a party at the Biltmore Hotel for that afternoon and evening. They were both there and claim that Spivey and the defendant (Wilkins), and probably Price, were there. The testimony of Smith as to what occurred at the party is substantially the same as that of Estes, except that Smith testified he got drunk and did not know exactly what did occur after that.

"In the Spring of 1937, Smith joined Estes in a deal to purchase the Webster royalty for $21,000 to the board and $7,000 on the side as a payoff. His testimony in this

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regard is substantially the same as that of Estes. He also attended the meeting at the home of the defendant and his testimony as to what occurred there is substantially the same as that of Estes.

"After the Webster payoff deal failed, and on May 14, 1937, Smith wrote a letter on behalf of the Investment Royalties, Ltd., to said clerk-business manager, wherein, among other things, he said:

" 'Should you desire to sell this property (Webster royalty), may we request that we be advised, because we want to bid on the property; and unless some drastic change has taken place in the condition of the well at the time you are ready to accept bids, you may also be advised that we would place a bid in excess of any bids heretofore given to the board of education.'

"Said clerk-business manager replied to this letter under date May 17, 1937. On May 18, 1937, Smith, for said above-mentioned company, wrote another letter to said clerk-business manager wherein he proposed to pay $30,000 for the Webster royalty. The letter of May 14, 1937, also appears in the record at page 1013. Smith wrote a similar letter as of that date to each and every member of the board, and these letters appear in the record at page 1014 to 1022. These letters were registered and the registry record appears in the record at page 1001 to 1012.

"Before the grand jury convened, or during its session, Smith testified concerning one or more conversations which he had with the defendant (Wilkins), either in person or by phone, and his testimony in this regard appears in the record at pages 1033 to 1039.

"The testimony of Smith, direct and cross, appears in the record at pages 947 to 1092, and is substantially as hereinabove set out.

"Watts, Estes and Smith testified before the grand jury, and each, as he thought, before giving his testimony was given immunity from prosecution, otherwise he would not have testified. At the time of the trial neither had been

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charged with any offense in connection with the part played as reflected by this record.

"The state presented the testimony of Watts in his effort to put over the Eckroat deal as to the Webster royalty, and the testimony of Estes and Smith in their attempt to put over the Spivey-Wilkins deal as to this royalty on the theory of other offenses evidence. The State, also, through said clerk-business manager, introduced the minutes of the proceedings of the board of certain dates as to the sale of this royalty on the same theory, and we will briefly analyze these minutes in this regard.

"The board met on April 21, 1937, with all the members present except Dorsey, Earp and Jones. The following proceedings were had as to the Webster royalty:

" 'The board then discussed the sale of the Webster royalty and it was moved by Mr. Spivey and seconded by Mr. Johnson that when the Webster royalty was sold the proceeds of the sale be put in the general fund and used for Northeast high school when available.'

"This minute was identified as Exhibit '11'.

"The board met on April 27, 1937, with all the members present except Dorsey, Earp and Jones, and the following proceedings were had:

"Mr. Jeff Martin came before the board and made an oral proposition to purchase the board's royalty interest in the Webster lease, for the sum of $26,500. It was moved by Mr. Spivev and seconded by Mr. Price that all bids for the Webster royalty be rejected and the matter taken up at a later date.'

"This minute was identified as Exhibit '12'.

"The board met on May 10, 1937, with all the members present except Mrs. Poole. The following proceedings were had concerning the Webster royalty:

" 'An offer of $27,000 for the board's entire royalty interest in the Webster school property, accompanied by a check for 10 per cent of the amount of the bid, was received

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from Mr. George Pasquella, and upon motion of Mr. Knight, seconded by Mr. Spivey, was referred to the oil and gas committee for recommendation back to the board.'

"This minute was identified as Exhibit '13'.

"The board met on May 18, 1937, with all the members present except Johnson, Mrs. Poole, Schilling and Spivey, and the following proceedings were had as to the Webster royalty:

" 'Investment Royalties, Ltd. submitted a proposal to purchase the board's entire royalty interest in the Webster school property for the sum of $30,000 effective as of April 1, and subject to acceptance not later than May 25, 1937. A certified check for $3,000 accompanied the bid as evidence of good faith. It was moved by Mr. Knight and seconded by Mr. Fezler that this proposal be referred to the oil and gas committee for recommendation at the next meeting. Motion carried.'

"This minute was identified as Exhibit '15'.

"The board met on May 27, 1937, with all members present except Lillard and Mrs. Poole, and the following proceedings were had.

" 'A bid of $30,500 was submitted by Mr. Ben Chadwell for the board's entire royalty interest in the Webster school property. In reading the bid it was discovered that there was an error in the description of the board's interest and at Mr. Chadwell's request the bid was returned for correction to the bidder.

" 'The oil and gas committee made a report recommending that the bid of the Investment Royalties, Ltd., for the board's royalty interest in the Webster property, which was referred to the committee at a previous meeting, be rejected. Upon motion of Mr. Price, seconded by Mr. Spivey, the recommendation was concurred in and the certified check for $3,000 which accompanied the bid was ordered returned to the bidder.'

"This minute was identified as Exhibit '16'.

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"The board met on July 27, 1937, with all members present except Mrs. Poole, and the following proceedings were had:

" 'The following bids were received for the entire royalty interest owned by the board of education in block 19, Howe's Capitol addition to Oklahoma City (Webster school site) :

"'Otto Askins, purchasing agent for Franco American Securities Ltd., $30,025.

" 'Luther E. Mayes, $30,000.

R. E. Pitts, $36,500.

" 'It was moved by Mr. Spivey and seconded by Mr. Knight that the board of education accept the offer of Otto Askins, purchasing agent for Franco-American Securities, Ltd., find upon payment of the sum of $30,025, the president and clerk of the board of education be authorized to execute a mineral deed conveying to the Franco-American Securities, Ltd., all its royalty interest in block 19, Howe's Capitol addition to Oklahoma City, including its entire one-eight landowner's royalty and the unpaid payable out of balance of $50,000, overriding royalty, out of 1/16 of 7/8 working interest owned by the board of education. Upon roll call the motion carried, all members present voting "Aye", except Mr. Fexler, who passed.'

"This minute was identified as Exhibit '17'.

"In due course the mineral deed was prepared, executed and delivered to The First National Bank & Trust Company for the purchaser."

Dan R. Cummings, long time resident of Oklahoma City, a former officer of the old Western National Bank, a stockholder in the First National Bank & Trust Company, a director of the Oklahoma Savings & Loan Association, past president of the real estate board, was at the time he testified and had been for 16 years prior thereto chairman or member of the adjustment board of Oklahoma City; was owner of 42 acres of land, located in the northwest

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part of Oklahoma City, and sold this acreage to board of education for a northwest high school site. On June 29, 1936, that the board entered into a contract with witness for the purchase of this site, for $73,710, and warrant issued therefor, under date of November 13, 1936, and witness deposited the same to his account in the First National Bank & Trust Company, of Oklahoma City.

He further testified that he was having difficulty in getting the board of education to take action relative to the purchase of this land. Finally the board through the defendant Spivey permitted him to name a board of appraisers, about this time, and before any price was agreed on, or contract signed, he asked Spivey if he wanted anything out of the deal. Spivey said he did not know. About a week later he asked Spivey if 10 per cent would be sufficient. Spivey said he would have to find out, and in a few days Spivey told him that it was not satisfactory, but he would go ahead with the deal; that Otto Rose, president of the board, did not think 10 per cent was enough, and later the price of $73,710 was agreed upon. That thereafter, on November 13, 1937, he received his warrant for $73,710 from Mr. Stearley, clerk of the board; that on the morning of November 14th he deposited the warrant in the First National Bank & Trust Company, and the next morning Ed Spivey, the defendant, called him on the telephone and asked him if he got the warrant. He told Spivey that he had received the warrant, and then Spivey asked if he could see him that morning; he told Spivey no, that he would send some one down there; that he would send it down; that he gave his son, Martin Cummings, a check for $6,829.50, with direction to get currency with the check and give it to the defendant, Ed Spivey.

Martin Cummings, the son, testified that his father, D. R. Cummings, gave him a check for 10 per cent of the

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purchase price, with direction to secure the cash, pay state and federal income taxes, and deliver the balance to the defendant, Spivey, That he followed his father's direction in this regard and paid the net balance to the defendant, Spivey, at his place of business in Oklahoma City.

R. L. Scott testified that he sold the defendant Spivey two Packard automobiles in the year 1937; that defendant paid $750 on the first one and $925 on the second, and in both instances the payments were made in currency.

William Gill testified that he sold the defendant and his nephew a country home and the down payment of $500 was made in currency, and between November, 1937, and September, 1938, $1,500 was paid in currency on this property.

J. G. Stearley lives in Oklahoma City, has lived there since 1918, with the exception of two years, and has been clerk and business manager of said board during all the time he has lived in Oklahoma City, and held such position at the time of the trial. He testified that the books and records of the proceedings of the board were kept under his supervision and control; that they were true and correct; that he knew nothing about any pay-off.

Earl P. Johnson has lived here in Oklahoma City since July, 1925; was bank teller with the Fidelity National Bank since July, 1925; was acquainted with Roy M. Smith; the name of his royalty company was. "Investment Royalties Limited." He identified the $6,000 cashier's check of September 14, 1936. He also identified a check for $500 drawn by Smith's concern upon his bank; that on the morning of September 17, 1927, Smith returned to him the said $6,000 cashier's check with the request that he receive currency therefor, and also secured currency on the said $500 check. He did this and placed this

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currency in a brief care and delivered the same to Smith. There was $6,000 in currency in one envelope and $500 in another.

Morris Alder testified that he was connected with the Biltmore Hotel as assistant manager September, 1936. He identified the registration record of Johnny Evans (Estes). Also identified a record of the hotel with Spivey's name thereon. His testimony had to do with the party at the Biltmore Hotel on the afternoon and evening of September 17, 1936.

Harold Dodson testified he was a lawyer by profession; knows defendant and officed with him in September, 1936; he remembered the occasion when Estes and Smith came to the defendant's office on September 17, 1936, and at the request of the defendant he accompanied Smith to the home of J. G. Stearley, clerk, for the purpose of having him attest the mineral deed, and from there they went to the office of the clerk of the board, where the mineral deed was acknowledged and delivered to Smith upon payment of the purchase price. From there he went with Smith to the courthouse, where they separated.

William M. Eckroat lives in Oklahoma City, has lived there since he was born, and was engaged in the real estate and oil business. In April, 1937, he attempted through Watts to purchase the Webster royalty for $25,000 to the board and $6,000 on the side. He and Watts had this deal on with Spivey, but the deal was not consummated. He discussed the deal with Spivey. He understood from some source that his bid was accepted, but the deal was not closed and he understood that Otto Askins purchased the royalty.

Dahl Duff lives in Oklahoma City, is a reporter for the Oklahoman and Times, and as such he attended the

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meetings of the board and wrote stories as to the proceedings. He attended a meeting of April 21, 1937, and at that meeting Spivey made a motion that the Webster royalty be sold to William M. Eckroat.

The only other witnesses who testified for the state are: E. C. Clay, M. O. Mulvey, and Louis Barnett.

When the state rested the defendant "moved the court to advise the jury to acquit him, for the reason that the evidence is insufficient to warrant a conviction." Which motion was overruled. Exception allowed.

On the part of the defense, Otto Rose testified: He lives in Oklahoma City, has lived here for 25 years, engaged in the banking and real estate business. Member of the school board from ward 4 for many years, was four times elected president of the board, and was president during the year 1936; has known Ed. W. Spivey for a number of years; recalls the sale of the Northeast high school royalty to Estes; he signed the mineral deed in the office of the defendant on September 17, 1936. The defendant was the only one present in the room where he signed the deed; he did not know Estes or Smith, and did not see them in the office when he signed the deed. The defendant 'phoned him and told him he wanted him to come over and sign the mineral deed, and made no statement to him with reference to the parties being there with the money for the purpose of closing the deal. If there was any pay-off in connection with the royalty sale he knew nothing about it, and had nothing whatever to do with it. He did not attend the Biltmore Hotel party, knew nothing about it and had nothing whatever to do with it. He recalls the sale of the Webster royalty and never knew or heard of any pay-off with reference thereto, and no member of the board ever asked him to vote for the sale of this royalty to any one.

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Robin Knight: He is a member of the school board from ward 2; went on the board about September 8, 1936; knew about the sale of the Northeast high school royalty; never heard of any pay-off or corruption in connection with that deal or any other deal of the board since he became a member. Neither Spivey nor Price asked him to vote for the Estes sale or any other sale. If there was any payoff or corruption with reference to the Estes deal he had no knowledge thereof. That he recalls the sale of the Webster royalty, and never heard of any corruption or pay-off in connection with that sale. He did not attend the Biltmore Hotel party and had nothing to do with it.

Mrs. J. S. Poole: She is a member of the school board from ward 4, and has been for 71/2 years; knew nothing about any pay-off or corruption in connection with the sale of the Northeast high school royalty to Estes.

Ed W. Spivey, as a witness in his own behalf, testified that he has lived in Oklahoma City 33 years; was in business with his father until 1921, thereafter with his sister-in-law he continued the business as "Spivey Furniture", until the middle part of 1932, he then moved his office to 732 East 9th, and continued there until 1935; that he became a member of the board of education the first Monday in May, 1931, at the end of the term was re-elected; resigned about the 1st of September this year; during '34, '35 and '36, served as chairman of the gas committee; remembered the occasion in February, 1936, when the board sold the first half of the royalty in the Northeast high school site. That he heard the testimony of witness Watts with reference to three conversations had with him in the summer of 1936, and he did not at that time or any other time or place propose to sell or cause to be sold the school board's interest in the Northeast high school royalty

Page 421

for $20,000 to the board and $6,000 on the side. Watts was in there twice, but whether he was there three times or not I don't know, but he mentioned that he wanted to make a commission on the sale of it if he could sell it. Afterwards a party came up there that introduced himself as Estes, heard his testimony in this case. I did not say to him or outline to him in substance that he would have to pay $20,000 to the board and $6,000 on the side in order to purchase the board's interest in the Northeast high school royalty, and nothing was said by him of having discussed the matter with Mr. Price. That he never agreed with Watts, Estes or any one else that the royalty could be bought for $20,000 to the board and $6,000 on the side. I heard Mr. Estes' testimony to the effect that I telephoned Mr. Wilkins and arranged for Mr. Estes to see him in the office; that he did not have any recollection about a telephone conversation, and if he asked him to make an appointment for him he may have called Mr. Wilkins. That he was present on September 15, 1936, when this royalty was sold to S. LeRoy Estes for $20,000 and $103; that he signed the report of the oil and gas committee on September 14, 1936, as shown by Exhibit No. 9, which report was approved by the board and the sale to Estes approved. That he did not know at that time that witness Roy M. Smith had any interest in the Estes purchase; that he was present at the Biltmore Hotel on the afternoon and evening of September 16, 1936, and had room 726. That he heard the testimony of E. P. Watts concerning a second deal by which William Eckroat was to pay $20,000 to the board for the Webster royalty and pay $6,000 on the side; that he did not have such agreement or any kind of payoff with Watts concerning the Webster royalty.

He further testified that he kept no record of his business transactions, his income or his disbursements;

Page 422

that he kept his money in cash in a safe at the store or at his office; that his income from 1921 to 1931 was $110,000; that he had no record of this income; that he had not paid an income tax since 1931; that he had taken bankruptcy in 1933; that he bought about $60,000 of his old store accounts in the bankruptcy proceeding in 1933; that he had been collecting these accounts and the collections were good, and this money was also kept in his safe with his other money, but had no record of how much and from whom he had collected on these old accounts. He admitted the payment in currency of $750 and $925 for the two Packard cars; that he furnished the $500 in currency which was paid to Mr. William Gill on the country house; that he owned two-thirds of the country house and furnished two-thirds of the money; that all of this money came out of the safe.

At the close of all the evidence, the defendant filed the following motion:

"Comes now the above named defendant, Ed W. Spivey, and moves the court to advise the jury to acquit him, for the reason that the evidence is insufficient to warrant a conviction." Which motion was overruled. Exception allowed.

The record is voluminous, comprising 1,800 pages, but the foregoing abstract of the testimony is sufficient to present the question raised and the issues involved.

Dudley, Hyde, Duvall & Dudley, of Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Co. Atty., and John F. Eberle, Asst. Co. Atty., both of Oklahoma City, for the State.

DOYLE, P. J. Appellant, Ed. W. Spivey, was tried and convicted in the district court in and for Oklahoma county, for having accepted a bribe as a member of the

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board of education of the city of Oklahoma City, and was sentenced to imprisonment in the state penitentiary for the term of ten years.

The assignments of error are that the court erred in overruling the motion to quash the indictment and in overruling the demurrer thereto; that the verdict of guilty is not sustained by sufficient evidence, and is contrary to law, in that the conviction was had upon the uncorroborated testimony of self-confessed accomplices. Other assignments relate to alleged errors of law occurring during the trial, in the admission of evidence, the refusal of the court to give to the jury certain instructions requested by appellant; and the giving of certain instructions over the objections of appellant.

The alleged errors have all been examined and such of them as we deem worthy of notice will be considered and disposed of in the order of presentation here.

The indictment in this case is drawn under Penal Code, Sec. 1907, 21 Okla. St. Ann. § 382, which is as follows:

"Every executive, legislative, county, municipal, judicial or other public officer, or any person assuming to act as such officer, who corruptly accepts or requests a gift or gratuity, or a promise to make a gift, or a promise to do an act beneficial to such officer, or that judgment shall be given in any particular manner, or upon a particular side of any question, cause or proceeding, which is or may be by law brought before him in his official capacity, or as a consideration for any speech, work or service in connection therewith, or that in such capacity he shall make any particular nomination or appointment, shall forfeit his office, be forever disqualified to hold any public office, trust or appointment under the laws of this state, and be punished by imprisonment in the state penitentiary not exceeding ten years, or by fine not exceeding five thousand dollars and imprisonment in jail not exceeding one year."

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The statute defining the term "bribe" reads:

"The term 'bribe' signifies any money, goods, right in action, property, thing of value or advantage, present or prospective, or any promise or undertaking, asked, given or accepted, with a corrupt intent to influence unlawfully the person to whom it is given, in his action, vote or opinion, in any public or official capacity." Penal Code, sec. 1777, 21 Okla. St. Ann. § 97.

The first contention is that the court erred in overruling his motion to quash the indictment.

In his brief it is said:

"In this motion he takes the position that there was no legal, material, relevant or competent evidence before the grand jury, and that he could not be convicted upon the uncorroborated testimony of these three confessed bribe givers, and that neither one could corroborate the other, and that by eliminating their testimony, the evidence before the grand jury was wholly insufficient to justify the returning of said indictment."

In the Code of Criminal Procedure the grounds upon which an indictment may be set aside upon the motion of a defendant are clearly defined. Sec. 2937, 22 Okla. St. Ann. § 493.

Before a defendant in a criminal action is entitled to be heard on a motion to set aside an indictment, he must bring himself clearly within the provisions of the Code of Criminal Procedure. State v. Barnett, 60 Okla. Cr. 355, 69 P.2d 77.

The motion to quash does not set forth any of the statutory grounds as provided by section 2937, supra.

Our statute provides:

"The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the

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general statutes of Oklahoma" etc. Sec. 2, 12 Okla. St. Ann. § 2.

At the common law, an indictment is invalid and may be quashed where it is found and returned by a grand jury not legally constituted, or where there was no legal and competent evidence before the grand jury upon which it was based; and this invalidity might be shown upon a plea in abatement. Hayes v. State, 3 Okla. Cr. 1, 103 P. 1061.

Under the statute, sec. 2, supra, and the provisions of the Code of Criminal Procedure, the motion to quash and set aside an indictment takes the place of the plea in abatement at common law, a plea the subject matter of which may be any objection which could not be properly interposed by a plea in bar.

These provisions do not qualify or change the rule of the common law requiring that an indictment must be found on legal and competent evidence.

The question of the competency or incompetency of accomplice witnesses before a grand jury is not a question that can be raised on a motion to quash the indictment. Whether or not a witness is an accomplice may be, according to the circumstances, a question for the court or jury. Generally speaking, however, it is a question of fact for the jury, but where the acts and conduct of the witness are admitted, it becomes a question of law for the court to say whether or not those acts and facts make the witness an accomplice. Cudjoe v. State, 12 Okla. Cr. 246, 154 P. 500, L. R. A. 1916F, 1251. And see 14 Am. Jur., Criminal Law, Sec. 110.

It may be said in passing that the law prescribes no standard for the strength of corroborating evidence, and there is a failure to corroborate only if there be no evidence

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legitimately having that effect. Underwood v. State, Okla. Cr. 21, 251 P. 507.

An examination of the evidence taken before the grand jury, introduced on the hearing had on the motion to quash, leads to the conclusion that, unexplained or uncontradicted, it would be sufficient to warrant appellant's conviction upon a trial upon the indictment. In our opinion this contention is wholly without merit, and the trial court did not err in overruling the motion to quash the indictment.

The second contention is that the court erred in overruling the demurrer to the indictment, for the following reasons:

"(1) That the same does not state facts sufficient to constitute the offense of bribery as therein charged, or any public offense.

" (2) That said indictment is so indefinite and uncertain that the same does not sufficiently advise the defendant of the nature of the alleged offense therein charged."

Another ground upon which appellant demurred, and the only one supported in the brief by the citation of authority and argument, is that he is not an officer within the purview of Penal Code, sec. 1907, supra, and in his brief says: "This section does not cover the board of education or the members thereof, and the defendant is not subject to prosecution thereunder, and his demurrer to the indictment should have been sustained." With this contention we cannot agree.

We think this section needs no construction. It is as plain as the aptest collocation of words can make it. It reads in part as follows:

"Every executive, legislative, county, municipal, judicial or other public officer, or any person assuming to act

Page 427

as such officer, who corruptly accepts or requests a gift or gratuity or a promise to make a gift or a promise to do an act beneficial to such officer. * * *"

In the case of State v. Sowards, 64 Okla. Cr. 430, 82 P.2d 324, 325, this court held:

"A 'public office' is a right, authority and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public, and the individual so invested is a 'public officer."'

In the case of State v. Womack, 4 Wash. 19, 29 P. 939, the Supreme Court of Washington held:

"A member of the board of education is an executive officer, and comes within the meaning of Code 1881, §§ 879, 880, which provides a punishment for attempting to bribe an executive officer."

In the case of State v. Loechner, 65 Neb. 814, 91 N.W. 874, 59 L. R. A. 915, the Supreme Court of Nebraska held:

"A member of a board of education of a school district in a city having a population of over 1,500, organized under the provisions of subdivision 14, c. 79, Comp. St., is a ministerial officer within the meaning of the term as used in section 180, Cr. Code, providing for the punishment of certain public officers for malfeasance in office."

In the opinion it is said:

"From a careful consideration of the subject in its different aspects, we are constrained to the view, as appears from what has been said, that the defendant belongs to the class of officers denominated 'ministerial,' and for that reason is included within the fair import of the language of the section of the Criminal Code under which the indictment was found.

"It is urged by the defendant that the question we are considering has been decided by the Supreme Court of

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Washington (State v. Womack, 4 Wash. 19 29 P. 939) adverse to the conclusion we have just reached. We have given that case careful consideration, and do not regard it as conflicting with the views herein expressed."

Appellant in his supplemental brief cites the case of Sheely v. People, 54 Colo. 136, 129 P. 201, and quotes the eleventh paragraph of the syllabus, which reads:

"Rev. St. 1908, § 1720, making one guilty of bribery who gives any sum to any ministerial or judicial officer, etc., with intention to influence him should be strictly construed as against the state and liberally in favor of the accused, consonant, however, with ascertaining the legislative intent."

The sixth paragraph of the syllabus reads:

"Officers that are neither judicial nor legislative necessarily belong to the executive department of government, and are 'executive' or 'administrative' officers, those terms being equivalent."

The seventh syllabus reads:

"The legislative intent should be sought in the ordinary meaning of the words of the statutes, construed in view of the connection in which they are used and of the evil to be remedied."

In the opinion it is said:

" 'Ministration' in Webster's Dictionary is said to be 'the act of ministering', and 'minister' is defined to mean 'administer.' And in the same dictionary one of the synonyms of 'administer, is 'minister,' and administerial defined as 'pertaining to administration or to the executive part of the government.' Now the fact that these executive, administrative, or ministerial officers may and do exercise discretion and judgment in varying degree in the discharge of their administrative duties does not make them the less ministerial; for, if it did, there would be few administrative or ministerial officers. Most of them would be excluded, and would have to be placed in a class that has not yet been defined by the authorities. The administration

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of government often requires in a large degree the exercise of discretion and judgment. * * *

" 'The character of the act does not depend on the amount of discretion confided to the officer. There is much reason for saying that under our Constitution all administrative or ministerial duties are executive in character, as they not only can be nothing else under the Constitution, but they are all acts in the conduct of the government; i.e., the administration of public affairs through and under the regulations prescribed by law.' In State v. Loechner, supra, the statute under consideration provided that 'any clerk, sheriff, coroner, constable, county commissioner, justice of the peace, recorder, county surveyor, prosecuting or district attorney, or any ministerial officer' who was guilty of certain acts should be fined, etc. A member of a board of education of a school district in a city was held to come under the provisions of the statute as being a ministerial officer. The duties of a member of the school board, as related to his district, were analogous to the duties of a county commissioner in this state, as related to his county, as is shown by the following quotation from the opinion: "The members of the school board are unquestionably regarded by statute as the servants or agents of the corporation, selected for the purpose of conducting and managing its affairs in the manner and under the restrictions pointed out by statute. They are an administrative body charged with the duty of administering the law governing the public schools within the city composing the school district of which they are officers. It is their duty to administer the affairs of the corporation as directed by statute in the exercise of such powers and authority as are vested in them. Doubtless in many instances in the performance of their duties they may exercise a discretion or judgment quasi judicial in character, but this fact alone cannot determine the class to which they belong, or bring them in the category of judicial officers.' From this the court held that the member was an administrative officer, and proceeded to show that the word 'ministerial' in the statute meant the same thing as 'administrative,' and that, therefore, the defendant belonged

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to the class of officers designated as 'ministerial', and came within the statute.

Penal Code, sec. 2458, 21 Okla. St. Ann. § 279, provides:

"The various provisions of this article which relate to executive officers apply in relation to administrative officers in the same manner as if administrative and executive officer were both mentioned together."

It follows from the foregoing review that a member of the board of education of Oklahoma City is a public officer.

The indictment is full and definite in alleging the things done, and the facts stated include every essential element of the crime of bribery as defined by Penal Code, section 1907, supra. It is clearly sufficient and the trial court did not err in overruling the demurrer thereto.

Several assignments of error are based on exceptions taken to the action of the court in the admission of evidence as to other and alleged independent crimes committed by appellant.

The rule is well settled that evidence of the commission of other crimes is admissible when it tends corroboratively or directly to establish the defendant's guilt of the crime charged in the indictment on trial, or some essential ingredient of the offense.

In 11 C. J. S., Bribery, page 869, § 14, it is said:

"As bearing on the corpus delicti, evidence of a general conspiracy to secure bribes is admissible. So, it is competent to show the relationship, understanding and common purpose of several defendants. Likewise, as bearing on the corpus delicti, it is permissible to introduce all competent testimony going to show that the person alleged to have been bribed actually received a bribe as charged, or did not receive a bribe as claimed by the defense."

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In the recent case of Boyer v. State, this court held:

"Evidence of other offenses is competent to prove the specific offense charged when it tends to establish a systematic scheme or plan embracing the commission of two or more offenses, so related to each other that proof of one tends to establish the other, or to connect the defendant with commission of the offense charged." 68 Okla. Cr. 220, 97 P.2d 779, 781.

The principal question in this appeal is set forth in appellant's brief as follows:

"Third Proposition: Assuming that the defendant cannot be convicted upon the uncorroborated testimony of Watts, Estes and Smith, and that neither one can corroborate the other, then under the usual test their testimony was not corroborated. Assignment of errors Nos. 1, 5, 6, 7, 39, 40, 41, 42, 43, 47." and counsel state:

"We will not here review the evidence independent of said accomplices, for the reason that we have in a general way, in our statement, set out the substance thereof, and when the testimony of these three accomplices is eliminated there is nothing left to bring the case within the above rule." Citing McNack v. State, 62 Okla. Cr. 285, 71 P.2d 317.

Counsel for the state in their brief state:

"Third Counterproposition: Watts, Estes and Smith are bribe givers, but they are not accomplices in the demanding and receiving of the bribe under the record here, and by express provisions of section 1916, O. S. 1931, 21 Okla. St. Ann. § 391, their cumulative testimony is sufficient to convict." And in their brief say: .

"There is no proof in this record of a conspiracy between witnesses, Watts, Estes and Smith, and the defendant Spivey, Price and Wilkins to give and receive a bribe in this case. The bribe giver simply acquiesced in the demand of the bribe taker for the payment of the bribe money as an absolute condition to the consummation of the deal for the Northeast high school royalty, based upon a legitimate bid therefor.

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"We submit that the testimony of Dodson, Alder, Eckroat, Duff and Otto Rose, corroborates the testimony of Watts, Estes, and Smith.

"In addition to the above corroborative witnesses, we have in this, the Spivey case, the testimony of E. C. Clay, J. Lane Wilson, Dan R. (D. R.) Cummings, Martin Cummings, M. O. Mulvey, R. L. Scott and William Gill.

"Dan R. (D. R.) Cummings and his son, Martin Cummings, were not accomplices of Watts, Estes and Smith in the Northeast high school royalty transaction, but here again, we have the defendant, Spivey, receiving and collecting a bribe of $6,829.50 in connection with his official acts as a member of the board of education. Dan R. Curnmings corroborated Martin Cummings and both were corroborated by M. O. Mulvey, teller in the First National Bank & Trust Company, who cashed the $6,829.50 check for Martin Cummings.

"Here again we have separate and independent evidence showing that this defendant was engaged in a general plan and scheme of bribery, and that the Northeast high school royalty transaction, as testified to by Watts, Estes and Smith, fits perfectly into said bribery scheme, and was a part of the same, and, therefore, the testimony of Dan R. Cummings, Martin Cummings and M. O. Mulvey corroborates the testimony of Watts, Estes and Smith."

In 14 Am. Jur., Criminal Law, sec. 108, it is said:

"The words 'accomplice,' 'accessory,' and 'aider and abettor' are often used indiscriminately and interchangeably by courts and textbook writers on criminal law. More accurately, the term 'accomplice' is used to define a situation from which certain collateral consequences flow, such as the need of corroboration of the testimony of an accomplice or the competency of an accomplice as a witness. It is commonly applied to a witness; it is not so often used in describing a person accused of crime. Usually, when persons are spoken of by courts in connection with the commission of an offense, they are mentioned as principals, accessories, or aiders or abettors; but if, in the course of the trial, any of these persons is

Page 433

put upon the witness stand and a question comes up as to the necessity of corroborating his testimony, he will be spoken of as an accomplice, although he may in fact be a joint principal, an accessory, or an aider and abettor."

In 8 Am. Jur., Bribery, sec. 33, it is said:

"In bribery, as in other crimes, the testimony of an accomplice is admissible. It should be weighed by the same rules as those by which the testimony of other witnesses is weighed-that is, by considering the accomplice's connection with the crime and with the defendant, his interest in the case, his appearance on the witness stand, the reasonableness of his testimony, and its consistency with other facts proved in the case. In many jurisdictions the common-law rule permitting conviction upon the uncorroborated testimony of an accomplice has been changed by statute; and where this is true, a person accused of bribery cannot be so convicted. The test as to whether a witness is an accomplice is whether he himself could be convicted as a principal or accessory."

The common-law rule permitting conviction upon the uncorroborated testimony of an accomplice has been changed by the statute. The Code of Criminal Procedure provides:

"Sec. 3071, 22 Okla. St. Ann. § 742. A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof."

Penal Code, sec. 2204, 21 Okla. St. Ann. § 953, provides:

"Any person charged with a violation of any of the provisions of this act may be convicted on the uncorroborated testimony of an accomplice, and the judgment thereon shall not be set aside or reversed by reason of the fact that such conviction was based on the testimony of an accomplice."

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This section deals with a violation of the gambling laws. Shepherd v. State, 17 Okla. Cr. 630, 192 P. 238.

The minimum quantity of proof in bribery cases is fixed by Penal Code, 1916, 21 Okla. St. Ann. § 391, providing that:

"In all cases wherein the offering, giving or receiving of bribes is made criminal by the provisions of the penal code, the party to such crime who shall first furnish information in relation thereto, as against the other parties, and in any prosecution therefor, shall testify to the same, truthfully and fully, shall not thereafter be criminally liable therefor, but in such case no conviction shall be had on the uncorroborated testimony of one such witness."

Instruction No. 9, given in accordance with this section, reads as follows:

9. You are further instructed that it is provided by the laws of this state that whoever corruptly gives, offers, or promises to any executive, legislative, county, municipal, judicial or other public officer or any person assuming to act as such, any gift or gratuity whatever, with the intent to influence his act, vote, opinion, decision or judgment, is guilty of a crime. It is further provided by law that in all cases wherein the offering, giving or receiving of bribes is made criminal by the provisions of the Penal Code, the party to such agreement who shall first furnish information in relation thereto, as against the other parties, and in any prosecution therefor, shall testify to the same truthfully and fully, shall not thereafter be criminally liable therefor, but in such case, no conviction shall be had on the uncorroborated testimony of one such witness. In this connection, the court instructs you that the witnesses E. P. Watts, S. LeRoy Estes and Roy M. Smith , under their own testimony in this case, are guilty of the commission of the crime of the giving of a bribe and you could not find the defendant Ed. W. Spivey guilty of the offense charged in this indictment upon the uncorroborated testimony of any one of such witnesses. However, if you find from the testimony of others, then one of such witnesses,

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sufficient corroboration of his testimony as leads you to believe that he was telling the truth, then you may consider his testimony in connection with all the other facts and circumstances in the case, and, if from all the testimony in the case, including the testimony of one such witness, you find and believe from the evidence beyond a reasonable doubt that the defendant committed the offense charged in the indictment herein, then, you should so say by your verdict.

"In determining the question as to whether the testimony of a witness has been corroborated, you may eliminate his testimony entirely, and then examine all of the remaining testimony except that of such witness, and ascertain from such examination whether there is any evidence tending to connect this defendant with the offense for which he is charged in the indictment, and, if there is, then such witness is corroborated. You will apply this same rule of law to the testimony of D. R. Cummings and M. K. Cummings in relation to the purchase of the Northwest high school site. If the defendant was being tried as the receiver of a bribe in connection with the purchase of the Northwest high school site he could not be convicted upon the uncorroborated testimony of either one of such witnesses. If you find that the testimony of one of such witnesses has not been corroborated, then, you will not consider his testimony for any purpose whatsoever in this case.

"You will also apply the same rule of law in considering the testimony of the witness J. Lane Wilson and E. C. Clay in connection with the J. Lane Wilson transaction covering lots in Park Place addition to Oklahoma City and you will apply the same rule of law to the testimony of the witness E. P. Watts, and William Eckroat in relation to their attempted purchase of the Webster Royalty; also the testimony of the witness S. LeRoy Estes and Roy M. Smith in relation to their attempted purchase of the Webster royalty. Excepted to by defendant and exception allowed.

"Lucius Babcock, Judge."

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The independent evidence tending to connect this defendant with the commission of the crime charged is in substance as follows:

The testimony of Earl P. Johnson shows the drawing of $6,000 in currency from the bank on the 17th day of September by Smith and the placing of this currency in a certain brief case, thereafter identified on the witness stand by Johnson as the same or a similar one. It shows the delivery of this brief case with currency therein to Smith at the bank and his departure therefrom.

The testimony of Harold Dodson discloses that this brief case was brought to the office of Frank Wilkins, codefendant, in the possession of Smith and Estes; that there in the office Estes sat upon the brief case and when necessary to change his position tucked the brief case under his arm; that when the witness and Smith, together, left the office, Estes remained there and was still in possession of the brief case.

The testimony of Morris Alder established that on the evening of the same day, the bribe givers and bribe takers came together for some kind of a party at the Biltmore Hotel; that two rooms were rented and occupied during the evening, and that the extras charged to these rooms were paid by the defendant, Spivey.

The testimony of William Eckroat that he was to pay a $6,000 bribe on the Webster royalty corroborates the testimony of E. P. Watts relative to the Webster royalty bribery transaction.

The testimony of Dahl Duff, a reporter for the Oklahoma Publishing Company, was that Spivey made a motion that the Webster royalty be sold to William Eckroat.

The testimony of E. C. Clay, J. Lane Wilson, Dan R. (D. R) Cummings, Martin Cummings, M. O. Mulvey,

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R. L. Scott and William Gill was independent evidence, and, therefore, could not be accomplices. Their testimony corroborates the testimony of Watts, Estes and Smith in that it shows that the defendant, Spivey, took a bribe from Clay and Wilson in connection with the Park Place lease, and that the defendant, Spivey, was involved in a general bribery scheme and plan, a part of which was the Northeast high school royalty transaction, as testified to by Watts, Estes and Smith.

The testimony of Dan R. Cummings shows that he was having difficulty in getting the board of education to take action relative to the purchase of certain land. Finally the board, through the defendant, Spivey, permitted Cummings to name a board of appraisers, and about that time and before any price was agreed on, or contract signed, Cummings asked Spivey if he wanted anything out of the deal. Spivey said he did not know, and about a week later Cummings asked Spivey if 10 per cent would be sufficient, and Spivey said he would have to find out; that in a few days, Spivey told Cummings that it was not satisfactory, but that they would go ahead with the deal; that Otto Rose, president of the board, did not think the 10 per cent was enough. Later, the price of $1,750 per acre was agreed upon; that thereafter, and on November 13, 1937, Cummings received his $73,710 warrant from the clerk of the board of education; and the same morning Spivey called Cummings on the telephone and asked him if he got the warrant. Cummings told Spivey he had gotten the warrant, and then Spivey asked if he could see him that morning; Cummings told Spivey "No", that he would come or send someone down there; that he would send it down; that he gave his son, Martin Cummings, a check for $6,829.50, with directions to get currency with the check, and give it to the defendant, Spivey.

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Dan R. Cummings and his son, Martin Cummings, were not accomplices of Watts, Estes and Smith in the Northeast high school royalty transaction. Dan R. Cummings corroborated Martin Cummings, and both were corroborated by M. O. Mulvey, teller in the First National Bank & Trust Company, who cashed the $6,820.50 check for Martin Cummings.

There are many other facts and circumstances in evidence, but the foregoing independent evidence is sufficient to show, or at least tends to show, that Watts, Estes and Smith, accomplice witnesses, were corroborated in regard to appellant's connection with the commission of the crime charged.

In this connection it is well to remember that the well-established rule in this state is that it is not essential that the evidence corroborating an accomplice shall cover every material point testified to by the accomplice, or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to some material fact or facts, by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to all. Such corroborating evidence, however, must show more than the mere commission of the offense. Moody v. State, 13 Okla. Cr. 327, 164 P. 679; Davis v. State, 18 Okla. Cr. 453, 196 P. 146; Hollingshead v. State, 21 Okla. Cr. 306, 207 P. 104; Collins v. State, 28 Okla. Cr. 45, 228 P. 993.

It follows that instruction No. 9, above quoted, was more favorable to appellant than the law warranted ; and as a whole the instructions given by the court fully and correctly covered the law of the case, and were as favorable to appellant as the law warranted.

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This court has held repeatedly that it has no power to reverse a judgment of conviction upon the ground that the verdict is not supported by the evidence, unless there is no substantial evidence tending to show the guilt of the defendant, or the evidence fails so far to support the verdict that the necessary inference is that the jury must have acted from passion or prejudice, or have been controlled in reaching their verdict by undue influence. As we view the evidence in this case, it cannot with propriety and due respect for the law be held that there is an absence of competent evidence on which to base the conviction.

Finally it is urged that the punishment imposed is excessive.

The maximum punishment under the statute for the crime of bribery was fixed by the jury. It is true the sentence is severe, but the crime is grave and one which tends, probably more than any other, to sap the very foundation of all civil government.

It is for the Legislature, not for the courts, to determine what the punishment for crime shall be, provided it is neither cruel nor unusual.

The record fails to disclose that the jury was influenced by passion or prejudice, and upon the record before us we cannot say the jury abused its discretion in fixing the punishment.

Upon a careful examination of the voluminous record, and having considered the assignments of error argued orally and in the briefs, we are satisfied that no exception taken upon the trial is of any force or merit. Our conclusion is that appellant had a fair and impartial trial.

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