People v. Kerns

CRAIL, J.

The defendant was charged under numerous counts in an information with bribery, extortion and attempted extortion. A jury was waived and after trial defendant was found guilty of bribery upon ten counts, of extortion upon fifteen counts, and of attempted extortion upon one count. In each of the counts of bribery, the defendant was charged with " wilfully, unlawfully, corruptly, knowingly and feloniously asking ... a bribe, . . . for the purpose of influencing the opinion and action of the said Ben F. Kerns [defendant] upon official matters then pending before him and which might thereafter be brought before him in his official capacity as Junior Epidemiologist-Bacteriologist of the Department of Public Health of the State of California, . . . the said defendant being then and there and at all times herein mentioned an executive officer of the State of California ...”

The first contention of the defendant is that he was not an executive officer and was therefore not subject to the provisions of section 68 of the Penal Code, as it existed at the time of the alleged offenses. At that time said section, as it applies to this case, provided that any executive officer who asks any bribe upon any understanding that his action upon any matter then pending in his official capacity shall be influenced thereby is punishable, etc.

The defendant was employed, under the authority of the board of public health of California, as a junior to enforce quarantine regulations with regard to all birds of the psittacine family, because of an epidemic of fever and sickness among such birds which was dangerous to the public health. At the trial it was stipulated that “On January 19, 1932, the State Board of Health approved the action of the Director of Public Health of the State of California in employing Mr. B. F. Kerns, the defendant here, as an epidemiologist-bacteriologist, at the salary of $150.00 per month for one month, and from month to month thereafter; that employment continued until June 17, 1933.” Defendant’s duties were prescribed by the state board of

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health; he was to make a survey in Los Angeles city and county and near-by counties; some of the literature of the department described him as “Supervisor Psittacosis Control, State Department of Public Health”. In other evidence, he was described as “Inspector, State Board of Health”. It was his duty, among other things, to sign shipping certificates when birds were to be shipped interstate; and express companies would not accept birds without that certificate. It was his duty to inspect aviaries for quarantine purposes. He wore a badge upon which was the legend “Inspector”.