People v. Seeley

COOPER, C.

The court below sustained a demurrer to the information, on the ground that the facts stated do not constitute a public offense, and that the court had no jurisdiction of the offense charged, and ordered judgment for defendant, and that he be discharged.

[14]

This appeal is from the judgment, and presents the sole question as to the correctness of the order sustaining the demurrer. The information alleges as follows:—

“Joseph B. Seeley is accused by Hugh J. Mclsaac, district attorney of the county of Marin, state of California, by this information, of the crime of felony, to wit: asking and agreeing to receive a bribe committed as follows, to wit: The said Joseph B. Seeley on or about the tenth day of December, A. D. 1900, at and in the county of Marin, state of California, then and there being an executive officer,—namely, a school trustee of Tiburón School District of Marin County, in said state,— did willfully, unlawfully, and feloniously ask and agree to receive a bribe, to wit: two hundred dollars, coin of the United States of America, from one Frederick 0. Waite, upon the agreement and understanding that his, said Joseph B. Seeley’s, vote, opinion, and action, as such school trustee, upon the matter of accepting a school building for said school district, which said matter was at said time pending before the school trustees of said district, should be influenced thereby.”

The information was evidently drawn with intent to charge a violation of section 68 of the Penal Code, which reads as follows:—

“Every executive officer, or person elected or appointed to an executive office, who asks, receives, or agrees to receive, any bribe, upon any agreement or understanding that his vote, opinion, or action upon any matter then pending, or which may be brought before him in his official capacity, shall be influenced thereby, is punishable by imprisonment in the state prison not less than one nor more than fourteen years; and, in addition thereto, forfeits his office, and is forever disqualified from holding any office in this state.”

The above section has been in the Penal Code since its adoption, but defendant claims that it is repealed by implication by reason of section 1879, found in the Political Code, in article 21, under the heading “Miscellaneous Provisions relating to the Public Schools,” enacted in March, 1893, which reads as follows:—