People v. Ward

McFarland, J. The appellant was convicted of the “ crime of giving a bribe,” and appeals from the judgment and from an order denying a motion for a new trial.

The appellant demurred to the indictment upon the grounds that it does not substantially comply with the requirements of sections 950 and 952 of the Penal Code. His demurrer was overruled, and we think that the court erred in overruling it.

The indictment charges that the appellant did willfully, feloniously, etc., “ give a bribe” to a certain member of the board of supervisors, with intent to corruptly influence him in a certain matter; but it does not contain any averment of any act of appellant which brings his alleged conduct within the legal meaning of bribery. The indictment would be the same if it had merely charged, generally, that defendant “ bribed ” a certain person to do a certain thing. This would be the averment of a legal conclusion only, and as bad as a mere general averment that a defendant “ murdered ” somebody or “ stole” something.

Section 950 of the Penal Code provides that the indictment shall contain “ a statement of the acts constituting the offense in ordinary and concise language”; and section 952 provides that “ it must be direct and certain as it regards, .... 3. The particular circumstances of the offense charged when they are necessary to constitute a complete offense.”

Subdivision 6 of section 7 of the Penal Code provides as follows: “The word ‘bribe’ signifies anything of value or advantage, present or prospective, or any promise or undertaking to give any, asked, given, or accepted, with a corrupt intent to influence, unlawfully, [372]the person to whom it is given, in his action, vote, or opinion, in any public or official capacity”; and section 165 provides that •“ every person who gives or offers a. bribe” to one of several officers named, with intent, etc., is punishable in a certain manner. And counsel for respondents contend that the indictment is good, because, as they say, “ it follows the language of the statute.”

This court has said several times, in general terms, that an indictment is sufficient if it substantially follows the language of the statute. This is true generally, but not universally. It is not true of a case where “ the particular circumstances .... are necessary to constitute a complete offense.” The rule especially applies to-purely statutory offenses. But what does the rule mean? It means simply this: that when the statute defines or describes the acts which shall constitute a particular offense, it is sufficient in an indictment to describe-those acts in the language employed in the statute, applying them, of course, concretely to the person charged. One of the earliest cases on the subject is People v. Parsons, 6 Cal. 487. In that case the indictment was for perjury, and left out the word “ feloniously ”; and it was held good, because in the statutory definition of the crime of perjury the word “ feloniously ” was not used. In its opinion the court said: “ The indictment in this cause charged the offense in the words of the statute-defining it; .... time, place, and circumstance are stated with certainty, and every information is given to-the defendant which is necessary to enable him to answer the charge.” There the words of the statute defining the offense were used in the indictment. People v. Shaber, 32 Cal. 36, is another early case. There the court, in sustaining the indictment, said: “ The indictment charges the offense in the very terms used in defining it in the fifty-eighth section of the Crimes Act.” And even in that case Sanderson, J., dissented, saying that it was a familiar principle in all pleadings that “the facts are to be stated to the exclusion of conclusions of