In Re Jang

California Court of Appeal Mar 29, 1938 No. Crim. 1998Published

Before: Knight

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Holding. The court held that a conviction for bribery under Penal Code section 137 requires proof of a mutual understanding or agreement to influence testimony, which was not established by the evidence. Because the officers never agreed to the petitioner's proposal, there was no meeting of the minds necessary to satisfy the statute.

Issues

Whether the evidence at the preliminary examination established the essential element of an 'understanding or agreement' required for a bribery charge under Penal Code section 137.

Disposition. Petitioner discharged.

Quotations verified verbatim against the opinion

“the essential element of the offense thus defined is that the bribe be given upon the “understanding and agreement that the testimony of such witness shall be thereby influenced””

“there can be no agreement or understanding without a meeting of minds—a person cannot agree with himself.”

KNIGHT, J.

Petitioner by this proceeding in

habeas corpus

seeks to be released from the custody of the sheriff, after having been held to answer for trial in the superior court on a charge of having given a bribe to Marshall Burnett, an inspector of the state narcotic division. Shortly before the alleged illegal transaction took place Burnett and Inspector Armstrong arrested one Quon Choy for illegal sale of narcotics; and the substance of the charge set forth in the complaint filed against petitioner is that Burnett was about to be called as a witness in the Quon Choy case and that petitioner gave him a bribe of $400 “upon the understanding and agreement that the testimony of said witness should be influenced”. The ground urged in support of the petition for discharge is that the evidence taken at the preliminary examination fails as a matter of law to establish any such understanding or agreement.

Preliminarily, it may be stated that there are several Penal Code sections denouncing as a crime the giving of bribes, among them being sections 67,

67y2

and 137. The first two are embraced in title V, part 1, entitled “Crimes by and against the executive power of the state”. Those sections provide generally that everjr person who gives or offers any bribe to any executive officer of the state or any ministerial officer, employee or appointee of the state, county or city therein or political subdivision thereof with intent to influence him in respect to. any act, decision, vote, opinion or other proceeding is guilty of a crime. The third section above referred to, number 137, is made part of chapter VI, title VII, part 1, of said code, which is headed “Falsifying evidence”; and the complaint herein was based on the first clause thereof which is as follows: “Every person who gives

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or offers, or promises to give, to any witness, or person about to be called as a witness, any bribe, upon any understanding or agreement that the testimony of such witness shall be thereby influenced ... is guilty of a felony.”

As will be noted, the essential element of the offense thus defined is that the bribe be given upon the

In Re Jang

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KNIGHT, J.

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