
    Roberts v. The State of Ohio.
    
      (Decided November 9, 1932.)
    
      Mr. John E. Sater and Mr. Horace 8. Kerr, for plaintiff in error.
    
      Mr. Donald J. Hoshins, prosecuting attorney, Mr. Ralph J. Bartlett and Mr. Forrest R. Detrich, for defendant in error.
   By the Court.

Plaintiff in error was charged with, tried and convicted of, the offense of bribery; Motion for new trial was overruled, judgment entered and sentence pronounced. Error is prosecuted to this court.

The petition assigns fifteen grounds of error. We will discuss only those which are presented and urged in the briefs of the parties. The original indictment charged substantially that during the period set forth in 'the indictment Matt E. Roberts was a duly appointed, employed and qualified deputy clerk of the probate court of Franklin county, and that, during this period, he unlawfully, fraudulently and corruptly solicited and accepted from Harry Greenberg and William E. Gerrish sums of money aggregating $750, with intent to influence him, the said Matt E. Roberts, with respect to his official duty as to the purchase of clothing to be furnished and supplies to be sent to patients in the State Hospital for the Insane at Columbus, Ohio, by the probate judge of the county of Franklin, aforesaid, in accordance with Section 1960, General Code of Ohio, and with intent to influence the action, opinion, and judgment of the said Matt E. Roberts in the purchase of said clothing, while said decision of purchasing such clothing was a matter pending legally before the probate judge of said county and said Matt E. Roberts as deputy clerk.

There was a second count in the indictment which it is not necessary to consider. Mr. Roberts was arraigned and entered a plea of not guilty, and the case came on to trial. A jury was impaneled and sworn, and a witness for the state was placed upon the stand. Whereupon testimony developed which caused the trial court, upon motion of the county prosecutor, to order changes in the -indictment, which were termed an amendment thereto. Continuance of the cause was had, and on the day succeeding the beginning of the trial the prosecutor, pursuant to an order of the court, tendered and filed another form of indictment, which was changed in the particulars that Matt E. Roberts was characterized as an agent or employee of the pro-. bate judge, instead of as a deputy clerk; that the solicitation and acceptance of the bribe by said Roberts was with respect to a duty as such agent and employee, and with intent to influence his action, opinion and judgment in the supplying of said clothing in a matter pending before said Roberts as such agent and employee of the probate judge. The court permitted this indictment, which was designated an amended indictment, to be filed, and the cause proceeded to trial on the amended indictment.

The charge in this case grew out of the furnishing of clothing to patients who had been committed by the probate court to the insane asylum under Section 1962, General Code. The evidence disclosed that, during the period set forth in the indictment, namely,, from August 1,1930, to on or about October 1,1931, plaintiff in error was a deputy clerk by appointment of the probate judge of Franklin county, and also assignment clerk and court constable under like appointment. The patients committed to the insane asylum, for whom it was necessary to provide clothing, under Section 1962, General Code, were numerous, and the probate judge, so he testified, gave a general order to plaintiff in error to award the contracts for the clothing among certain individuals and firms named by him, at a sum not to exceed an amount fixed, with the admonition to divide the contracts ratably and to secure advantageous prices. The orders to those who were to furnish the clothing were signed in print by Homer Z. Bostwick, probate judge, and as they were specifically issued were authenticated by the plaintiff in error, as deputy clerk of the probate court. It developed that Harry Greenberg was awarded almost 50 per cent, of the total contracts let during the period set out in the amended indictment, and at the maximum figures fixed by the court.

There was testimony tending to show that both Greenberg and Gerrish, who was employed by Green-berg, gave plaintiff in error money at various times and places when orders would be given to them for clothing for patients. Gerrish did not know or pretend to state the reason actuating any payments that he made to plaintiff in error other than that he had been instructed by Greenberg to pay plaintiff in error what he asked; nor did he testify that at any time plaintiff in error made any request from him for money. Greenberg testified to facts which, if true, permitted a finding that he gave money to plaintiff in error, and an inference that it was given by Greenberg and accepted by plaintiff in error for the purpose of securing the helpful influence of plaintiff in error in causing the orders for the clothing to be given to Greenberg. Plaintiff in error, whose reputation, prior to the conviction in the instant case, was established to be of the very highest, denied in its entirety the testimony of Greenberg and Gerrish respecting the acceptance of any money by him from either of them. Thus there was a sharp conflict between the testimony of Greenberg and Gerrish, on the one hand, and plaintiff in error on the other.

We will consider a number of the more material questions presented on the record. The weight of the evidence is challenged in the petition in error, but it is not urged or stressed in the brief of counsel for. plaintiff in error. This is proper acknowledgment of the fact that there was such conflict in the testimony as to permit of the verdict which the jury returned, if the indictment upon which plaintiff in error was required to go to trial charged an offense at law and plaintiff in error was accorded due process of law at his trial. We will say at the outset that, had we sat as a jury in this cause, it is doubtful, because of the uncertainty of the testimony of the prosecuting witnesses and the aspersions on the character of Greenberg, whether we should have accepted the evidence of the state as being sufficient to establish the guilt of plaintiff in error beyond a reasonable doubt.

It is urged by plaintiff in error that the changes permitted by the trial court in the indictment did not constitute an amendment thereto under the provisions of the statute, Section 13437-29, General Code, but that they changed the identity of the crime charged; that as changed plaintiff in error was denied his constitutional right to have the indictment presented by a grand jury, and, further, that the change made was not an amendment, as contemplated by statute or the Constitution, because it was embodied in a separate instrument, presented in the form of another or new indictment, whereas the changes or amendment should have been made upon the face of the original indictment. Many authorities are cited pro and con on the latter proposition. The section, 13437-29, General Code, provides: “The court may at any time before, during or after the trial amend the indictment, information or bill of particulars, in respect to any defect, imperfection or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged.”

We are of opinion that the new matter set forth in the amended indictment did not change the identity of the crime charged, nor result in prejudice to the accused. The original indictment apprised plaintiff in error of the charge upon which he would be required to go to trial, namely, that while acting in the capacity of a deputy clerk, under appointment of the probate judge, he solicited and accepted a bribe to influence him to favorable action respecting a purchase pending before him, concerning which he had certain powers of determination. It follows, then, that the new matter set up in the amended indictment resulted in nothing more than an amended indictment, although it was not made upon the face of the original indictment. The statute itself, Section 13437-29, sets forth no requirement that the amendment shall be made on the face of the indictment, and it would seem that, upon consideration of this section alone, its intent would be observed by that which was done by way of modification to the original, resulting in nothing more than an amendment thereto. It is obvious that considerable change might properly be made in an indictment, which it would be impracticable to carry on to the face of the original, but which would amount only to amendment. Common procedure is for the court to set forth, by way of journal entry, that which it has permitted or ordered to be set forth by way of amendment to the original indictment.

We have examined Lasure v. State, 19 Ohio St., 43, which involved an interpretation of what was then known as Section 112 of the Code of Criminal Procedure, a well-known statute in this state. It was there held that the statute was constitutional. The section itself has always provided how the change in name shall be incorporated in the indictment, namely, by an entry of the true name upon the minutes of the court, whereupon the cause shall proceed against the defendant in his proper name. This is in contradistinction to the statute which we are now considering, wherein there is no provision as to the method or manner of making the amendment to the indictment.

We have also examined the cases of Commonwealth v. Snow, 269 Mass., 598,169 N. E., 542, and the annotations in connection therewith in 68 A. L. R., 920; State v. Foxton, 166 Iowa, 181, 147 N. W., 347, 52 L. R. A. (N. S.), 919, Ann. Cas., 1916E, 727; State v. Mullen, 151 Iowa, 392, 131 N. W., 679, Ann. Cas., 1913A, 399; and the other cases and annotations cited by counsel for plaintiff in error, and find that most of the amendments made in these cases were accomplished by changes on the face of the original indictment. We do not believe that because this had been the general practice it is determinative, that it is mandatory, and that unless it was done in such manner it would be invalid.

In some of these cases, notably State v. Mullen, supra, it does not appear how the amendment was made, although it is extended and probably was not on the face of the original indictment.

It is claimed further that the indictment does not charge an offense against plaintiff in error, in that it sets out the offer and acceptance of a bribe with intent to influence the action, opinion and judgment of the said Matt E. Roberts in the purchase of said clothing while said decision of purchasing such clothing was a matter pending before said Matt E. Roberts as such agent and employee of the probate judge, as aforesaid. It is urged that the action contemplated in the awarding of the contracts for clothing was a judicial action, that it partook of the attributes of sovereignty, and that such power could not be delegated to an agent or deputy of the probate judge.

Section 1962, General Code, provides: “If not otherwise furnished, the probate judge shall supply each patient sent to a hospital for the insane with proper clothing, which shall be paid for on his certificate and the order of the county auditor from the county treasury.”

This section in instances where applicable enjoined upon the probate judge the specific obligation of furnishing each patient which he sent to the hospital for the insane with proper clothing. The probate judge, of course, could not have a deputy probate judge any more than a common pleas judge could have a deputy judge. The probate, judge is ex officio clerk of his own court, and the plaintiff in error was deputy to the clerk of the probate court. He also held the other appointive positions. We feel certain that plaintiff in error as a deputy clerk was an official. His position is defined by statute, he is required to take an oath of office, and may be required to give bond. This position and the other places which he held, however,' could also come under the broader characterization of employee. Though the probate judge is charged with the ultimate obligation of furnishing the clothing to patients it does not follow that his agent or employee could not under the facts in this case have some authority in determining to whom among those designated by the probate judge the contracts for the purchase of the clothing should be let. There were operations and details incident to the furnishing of clothing which the probate judge could delegate to another. These operations, according to the statement of Judge Bostwick, he delegated to plaintiff in error. Though disputed, the jury could have properly found from the evidence that the probate judge delegated this limited authority to plaintiff in error. If so, it enabled him to so shape the action taken toward the placing of the contracts for clothing as to be the subject of bribery, and the amended indictment sufficiently apprised plaintiff in error of the relation which it was claimed by the state he sustained toward the placing of the contracts.

Undoubtedly it is the intention of the statute that the probate judge issue the certificate for payment to those who provided the clothing under the statute, but, he having authorized and permitted the certificates to be signed as they were, and the plaintiff in error having so signed them, and they having to all intents and purposes operated as certificates under the law, we see no reason why in this case the authority of the plaintiff in error to act as he did can be questioned by him.

An official act does not mean what a deputy might lawfully do in the execution of his office, but means whatever was done under color or by virtue of his office. Meek v. Tilghman, 55 Okl., 208, 154 P., 1190.

There is a line of decisions to which our attention is directed in the brief of counsel for the state that holds that the principle of estoppel is applicable in criminal actions as in civil suits. We have examined these authorities and find that they support the contention of the state. Thus plaintiff in error, if he solicited and accepted money upon ostensible authority to control the purchases of clothing, cannot be heard to say that he did not possess such authority. 16 Ohio Jurisprudence, 807, 808; 15 Ohio Jurisprudence, 638, 639; State v. Pohlmeyer, 59 Ohio St., 491, 52 N. E., 1027; State v. Gross, 91 Ohio St., 161, 110 N. E., 466.

We have considered all the errors urged by plaintiff in error, and find none so prejudicial as to require reversal of the judgment of the trial court, and it will therefore be affirmed.

Judgment affirmed.

Allkead, P. J., Hobnbeck and Kunkle, JJ., concur.

On Application for Rehearing.

We have carefully considered the application, the splendid brief and the forceful oral argument of counsel on the application for rehearing. We have likewise examined the case of Harris v. State, 125 Ohio St., 257, 181 N. E., 104, but feel that it is in no wise contradictory of any legal premise upon which our former opinion was based.

The other phases of the oral argument were specifically considered and discussed in our opinion.

The brief questions the charge of the court on corroboration of an accomplice. We find the charge sufficient ; in any event against the general exception.

It is urged that compulsion and duress appear to have dominated and controlled the state’s witnesses in their testimony. We are satisfied that such a condition did not exist to an extent requiring the court to so find as a matter of law. The facts indicating compulsion, as well as the credence to be given the testimony of the witnesses for and against the state, it was the province of the jury to consider and weigh.

If true, the record in our judgment supports the conviction. As we said in our former decision, if acting as a jury we would have hesitated to convict; but to set this verdict aside as manifestly against the weight of the evidence would necessarily require us to invade the clear field of the jury.

The application will therefore be overruled.

Allread, P. J., Hornbeck and Kunkle, JJ., concur.  