Opinion
34013, 34014.
DECIDED JUNE 20, 1952.
Indictments for procuring withdrawal of public record; from Fulton Superior Court — Judge Andrews. January 23, 1952.
Paul Cadenhead, Andrews, Nall Sterne, McFarland Cooper, for plaintiffs in error.
Paul Webb, Solicitor-General, Charlie O. Murphy, William Hall, contra.
Properly construed, the indictment stated a violation of Code § 89-9903, and the trial court did not err in overruling the demurrers thereto.
DECIDED JUNE 20, 1952.
C. F. Brusnighan and James A. Ross were jointly indicted for bribery "for that said accuseds, in the County of Fulton and State of Georgia, on the 23rd day of August, 1951 with force and arms, did unlawfully give to Jenny Falks Salomon the sum of five hundred ($500.00) dollars in money and did unlawfully promise said Jenny Falks Salomon a lifetime job with Bankers Life and Casualty Company at a salary of $325 per month, both as a present, undue reward and bribe to said Jenny Falks Salomon in the discharge of her official duties, she being then and there a clerk in the office of the Insurance Department of the State of Georgia duly appointed by the Insurance Commissioner of Georgia, and it being her official duty to have charge and control over and custody of the records, books and papers of said Insurance Department, said duties being established and in vogue (a) by authority, instruction and designation of said Insurance Commissioner, and (b) by usage and custom in said Insurance Department, which said present, undue reward and bribe accused did give and promise said Jenny Falks Salomon as aforesaid to influence her official behavior in her said office as clerk in said Insurance Department, and particularly for the purpose of influencing her corruptly to act partially in favor of Bankers Life and Casualty Company by wrongfully secreting and removing from the records, books and papers of said Insurance Department and wrongfully delivering to accused the following: copies of letters written by said Insurance Commissioner to insurance commissioners of other states relating to Bankers Life and Casualty Company, and replies thereto; transcript of minutes of meeting of Insurance Commissioners held at the Henry Grady Hotel, Atlanta, Georgia, June 18, 1951, which minutes were taken down in shorthand and transcribed by said Jenny Falks Salomon, correspondence between said Insurance Commissioner and the insurance commissioners of Tennessee, Ohio, Alabama, and Florida indicative of what actions relative to Bankers Life and Casualty Company were contemplated in those states; which records and papers it was the official duty of said Jenny Falks Salomon, under instructions given her by said Insurance Commissioner, to keep secret and not to disclose the contents thereof to anyone, including accused, contrary to the laws of said State, the good order, peace and dignity thereof."
The two defendants filed separate, but identical, demurrers to the indictment as follows:
"1. Said indictment fails to charge an offense under the laws of this State.
"2. Section 4101 of Title 26, Georgia Code, does not contain a penalty clause and that part of the indictment depending upon said section is therefore not punishable under Section 4102 of Title 26, Georgia Code, because 4102 defines its own offenses and makes no reference to Section 4101 either by name, number, or otherwise.
"Therefore, the court should strike from said indictment, or regard as mere surplusage, all the language therein which is taken from 4101 unless the same also appears in 4102, such language being partly, but not wholly as follows: the word `undue' wherever the same appears; the words `in discharge of her official duties'; the words `and it being her official duty to have charge and control over and custody of the records, books and papers of said Insurance Department, said duties being established and in vogue (a) by authority, instruction, and designation of said Insurance Commissioner, and (b) by usage and custom in said Insurance Department'; the words `in her said office'; the words `which records and papers it was the official duty of said Jenny Falks Salomon, under instructions given her by said Insurance Commissioner, to keep secret and not to disclose the contents thereof to anyone, including accused'; and all other language of the same import which is derived from Section 4101. When so stripped of its surplusage, the indictment fails to charge an offense.
"3. It is not alleged in said indictment that the person bribed or sought to be bribed occupied any office of government or justice under the laws of this State, or that said person was a member of the General Assembly, officer of this State, referee, or arbitrator.
"4. It is not alleged in said indictment that there was any matter or cause pending before the person named therein as having been bribed or that any matter or cause might or would thereafter pend before such person.
"5. The indictment describes the person sought to be bribed, to wit, Jenny Salomon, as a `clerk in the office of the Insurance Department of the State of Georgia', and this defendant says that there is no provision of the law making a clerk in said office an officer of the State of Georgia, nor a clerkship an office of government.
"6. There is no authority of law for the appointment by the Insurance Commissioner of clerks, and if any are so appointed such designation is purely an unofficial or informal designation and not recognized by law.
"7. There is no statutory official duty placed upon a `clerk in the office of the Insurance Commissioner' to have charge and control over and custody of books, records, and papers, of said department, and none can arise by usage and custom or by being established and in vogue by authority, instructions, and designation of the Insurance Commissioner unless and except the same be incident and ancillary to duties otherwise defined by law, or arise by necessary implication as a complement to defined duties.
"8. The indictment shows on its face that the copies of documents, letters, and other things described in the indictment had been secreted and concealed, thus segregating them from the public records and making them the private records of the Insurance Commissioner and there could be no duty upon any employee in the office of the Insurance Commissioner to protect and keep the private papers and documents of the Insurance Commissioner.
"9. Transcript of minutes of a meeting of the insurance commissioners held at the Henry Grady Hotel, Atlanta, Georgia, on June 18, 1951, said association being a purely voluntary one without any sanction or authority of law, could not lawfully be or become records, books, or papers of the Insurance Department of Georgia; nor could personal correspondence of the Insurance Commissioner with commissioners of other states be or become records, books, or papers of the Insurance Department of Georgia, because there is no duty imposed by law upon the Insurance Commissioner of Georgia to correspond with commissioners of other states and such correspondence, if it exists, was and is nothing more than the personal and private papers of Zack D. Cravey (Insurance Commissioner) in his individual capacity.
"10. When the Insurance Commissioner of Georgia (Zack Cravey) gave Jenny Falks Salomon instructions to keep secret and not to disclose the contents of documents described in the indictment (a) if the same were records, books and papers of the State, he violated Section 2801, Title 26, Georgia Code, and therefore subjected himself to criminal prosecution and undertook to impose upon Salomon duties which he could not lawfully require of her and the performance of such duties so imposed on her could not be or become an official duty, and (b) if by any such instructions the Insurance Commissioner of Georgia recognized said papers, books, and documents as his private papers, no official duty for their segregation and for denying copies of them to others could be thereby imposed upon anyone nor could such duty arise by operation of law.
"11. It appears from said indictment that Jenny Falks Salomon charged accused $500 to furnish them certain named documents but it is nowhere alleged that said charge was in excess of the rate prescribed by law for furnishing the same nor if the same was excessive, does it appear that the accused had knowledge that they were paying more than the legal rate for copies of such documents, records, and papers.
"12. The allegations of the indictment taken as a whole disclose neither corruption nor partiality in favor of Bankers Life and Casualty Company, but on the contrary disclose only the denial to the accused of access to the documents and of copies which they were lawfully entitled to receive, and at most, alleges only a conspiracy and agreement on the part of the Insurance Commissioner of Georgia and Jenny Falks Salomon to unlawfully, fraudulently and criminally refuse to defendants access to and copies of the documents described in the indictment and if the amount charged for same was excessive, a conspiracy to wrongfully extort money from the accused." These demurrers were filed on November 20, 1951, following the return of the indictment (special presentment) on August 31, 1951.
On December 3, 1951, the following additional demurrer was filed: "This defendant demurs specially to the allegations that certain duties were conferred upon Jennie [sic] Falks Salomon partly by usage and custom on the ground that the same are immaterial, irrelevant, prejudicial and contrary to law in that the duties of a public officer or of an officer of this State or of an employee of this State cannot be created or added to by usage or by custom. The allegations as to usage and custom as a source of duties should be stricken."
On January 23, 1952, each of these demurrers was overruled, and each of the two defendants excepted separately and by different bills of exceptions have appealed to this court. A decision upon one of the bills of exceptions will be decisive of the other and the two cases will be determined together in this court.
1. The true character of a criminal accusation or indictment is not fixed by the denomination of the crime given it by the pleader, but by its allegations; that is to say, the name given the crime which is charged in the accusation or indictment does not characterize the offense, but the nature of the crime charged is to be determined from the description of the crime, that is, from the acts alleged to have been committed which are contrary to the laws of the State. Camp v. State, 3 Ga. 417, 419; O'Halloran v. State, 31 Ga. 206 (1), 208; Aiken v. State, 90 Ga. 452 ( 16 S.E. 206); Disharoon v. State, 95 Ga. 351 (1) ( 22 S.E. 698); Alexander v. State, 122 Ga. 174 ( 50 S.E. 56); Lipham v. State, 125 Ga. 52 ( 53 S.E. 817); McKissick v. State, 11 Ga. App. 721 ( 76 S.E. 71); Sneed v. State, 16 Ga. App. 351 (1) ( 85 S.E. 354); Lummus v. State, 17 Ga. App. 414 (1) ( 87 S.E. 147); Edwards v. State, 22 Ga. App. 796 ( 97 S.E. 205); Moore v. State, 34 Ga. App. 182 ( 129 S.E. 6); Hughes v. Georgia Power Co., 65 Ga. App. 163, 165 ( 15 S.E.2d 466). The indictment does not allege the section or sections of the Code under which it is drawn, and the defendants' contention and the solicitor's concession that it is drawn under Code §§ 26-4101 and 26-4102 are in no way binding upon the court in its construction of the indictment.
Expunged of surplusage and reduced to its essentials, the indictment alleges: that Mrs. Jenny Falks Salomon was, at the time of the commission of the crime alleged, a clerk in the office of the Insurance Department of the State of Georgia, duly appointed by the Insurance Commissioner of Georgia; that it was her official duty to have charge of and control and custody of the records, books, and papers of the Insurance Department; that the defendants unlawfully gave Mrs. Salomon $500 and unlawfully promised her a lifetime job with Bankers Life and Casualty Company at a salary of $325 per month for the purpose of influencing her corruptly to act partially in favor of Bankers Life and Casualty Company by wrongfully secreting and removing from the records, books, and papers of the Insurance Department and wrongfully delivering to the defendants copies of letters written by the Insurance Commissioner to insurance commissioners of other States relating to Bankers Life and Casualty Company, replies thereto, transcript of the minutes of a meeting of insurance commissioners held at the Henry Grady Hotel, Atlanta, Georgia, June 18, 1951, which were taken down in shorthand and transcribed by Mrs. Salomon, correspondence between the Insurance Commissioner and the insurance commissioners of Tennessee, Ohio, Alabama, and Florida, indicative of the actions contemplated in those States relative to Bankers Life, which records and papers it was the official duty of Mrs. Salomon, under instructions from the Insurance Commissioner, to keep secret and not to disclose the contents thereof to anyone, including the defendants — contrary to the laws of the State, the good order, peace and dignity thereof.
It is an indispensable element of the crime of bribery, as defined in Code §§ 26-4101 and 26-4102, that the recipient of the "bribe" be the holder of an office of government or of justice, a member of the General Assembly, referee, or arbitrator. Payne v. State, 153 Ga. 882, 884 ( 113 S.E. 446); Taylor v. State, 174 Ga. 52, 55 ( 162 S.E. 504); York v. State, 42 Ga. App. 453, 463 ( 156 S.E. 733).
An examination of the indictment at once narrows the question to whether it is alleged that the defendants bribed the holder of an office of government, there being no intimation that the person "bribed" was the holder of an office of justice, a member of the General Assembly, a referee, or an arbitrator. The indictment alleges that Mrs. Salomon is "a clerk in the office of the Insurance Department," not that she held the office of Clerk of the Insurance Department. The allegation does not import the holder of an office of government. There is clerical personnel, comprising stenographers, typists, secretaries, file clerks, payroll clerks, record clerks, journal clerks, billing clerks, etc., in almost every department and office of government in this State. No play upon or juggling of words is required to determine that the clerical personnel of the offices of government within this State are not holders of the offices of government within the meaning of Code §§ 26-4101 and 26-4102. Such personnel are employees, not officers. The origin of the bribery statutes in Georgia, as will be pointed out in greater detail later, is to be found in the laws of the early nineteenth century. The lawmakers of that day are noted for their language facility. Had they intended to prohibit the bribing of all employees of the State they had the power and language at their command to do so. They did not so choose; but prohibited venality, "the mortal disease of democracy," to those in whose hands the public weal and fragments of the sovereign power lay, the officers of the State. Statutes of early date are not to be read as mere literary compositions, as they might be read by a man who knows English, but they are to be read in the light of the knowledge of the history which gave rise to the words.
It is true that at another point in the indictment it is alleged that the "bribe" was given to Mrs. Salomon "to influence her official behavior in her said office as clerk in the said Insurance Department." Offices of government are created under constitutional or legislative powers, and in no other way. If an office of government exists, its genesis is to be found in one of two places, in the Constitution of the State or in the statutes of the State. Of these the courts take judicial notice. Among these we find no presently operating provision of the Constitution or statute of the State providing for the creation of the office of Clerk of the Insurance Department of Georgia.
The act of 1912 (Ga. L. 1912, pp. 119, 120) empowering the Insurance Commissioner to appoint a clerk was repealed in 1928 by amendment to the Constitution (Code, § 2-2702). We find no statute since the amendment of 1928 creating the office of Clerk of the Insurance Department, or continuing that office; yet — and we think this is significant — other offices which were created by the act of 1912 have been continued, i.e., the office of deputy commissioner, and examiner; and new offices created, i. e., the office of investigator (Code, Ann. Supp., § 56-116).
The indictment is insufficient as stating the offense of bribery.
Still, under an application of the rules of law stated above for the determination of the nature of an indictment, the indictment is a sufficient charge against the defendants of the statutory offense set out in Code § 89-9903, if the papers and records which the defendants paid Mrs. Salomon to withdraw from the Insurance Department and to deliver to them were records belonging to any public office within this State.
Code § 89-9903 provides: "If any public officer, or other person, shall steal, embezzle, alter, corrupt, withdraw, falsify, or avoid any record, process, charter, gift, grant, conveyance, or contract; or shall knowingly and wilfully take off, discharge, or conceal any issue, forfeited recognizance, or other forfeiture; or shall forge, deface, or falsify any document or instrument recorded, or any registry, acknowledgment, or certificate; or shall alter, deface, or falsify any minute, document, book, or any proceeding whatever, of, or belonging to any public office within this State; or if any person shall cause or procure any of the offenses aforesaid to be committed, or be in anywise concerned therein, he shall be punished by imprisonment and labor in the penitentiary for not less than two years nor more than 10 years."
In the Eighth Division of the Penal Code of 1833 (Ga. L. 1833, pp. 171-179) the present Code § 89-9903 appeared as section 12, immediately following the two sections on bribery (sections 10 and 11) which are presently codified as Code §§ 26-4101 and 26-4102. The wording of the section as it appeared in the Penal Code of 1833 is as follows:
"If any judge, justice, mayor, alderman, clerk, sheriff, coroner, or other public officer, or any other person whatsoever, shall steal, embezzle, alter, corrupt, withdraw, falsify, or avoid any record, process, charter, gift, grant, conveyance, or contract; or shall knowingly and willingly take off, discharge, or conceal any issue, forfeited recognizance, or other forfeiture; or shall forge, deface, or falsify any document or instrument recorded, or any registry, acknowledgment, or certificate; or shall alter, deface or falsify any minute, document, book, or any proceeding whatever, of, or belonging to any public office within this State; or if any person shall cause or procure any of the offenses aforesaid to be committed, or be in anywise concerned therein, the person so offending, shall be punished by imprisonment and labour in the pentientiary for any time not less than two years, nor longer than ten years." (Italics added.)
This language, along with the two sections on bribery, was incorporated in the Code of 1863 (commonly referred to as the first Code in Georgia), § 4366, and carried forward in the same form in every subsequent Code until the Code of 1895, when this section was separated from the two bribery sections, and the language was changed to read as it does today in the present Code. See Penal Code of 1895, § 280, and §§ 267 and 268; and, for an account of the history of the two bribery sections, see Payne v. State, 153 Ga. 882 ( 113 S.E. 446).
While Code § 89-9903 states several offenses, it is clear that, in view of the history of the section and the language of the section itself, it was enacted as a protection alone to records, books, papers, etc., belonging to public offices within this State. It was originally codified in the act of 1833 in the eighth division of the Penal Code with "Crimes against Public Justice" and along with crimes dealing with public officers; and while some of the documents named could be either public or private instruments, all of those specified are either public or capable of becoming public records.
The indictment in the present case plainly charges the defendants with having unlawfully paid Mrs. Salomon $500 and promised her a lifetime job to wrongfully secrete and remove records, books, and papers of the Insurance Department of Georgia and to wrongfully deliver them to the defendants. These acts clearly and unquestionably constitute a violation of Code § 89-9903, which prohibits and penalizes any person's removal of any record belonging to a public office, as well as prohibiting and penalizing any person's causing or procuring such act to be done. And this is true although the indictment does contain some language which would be appropriate in an indictment charging the offense of bribery. See, in this connection, Disharoon v. State, supra.
The indictment, however, does not simply charge that the records, books, and papers of the Insurance Department were withdrawn, removed, and delivered by Mrs. Salomon to the defendants, it goes further and specifically denominates what these records, books, and papers consisted of: namely, "copies of letters written by said Insurance Commissioner to insurance commissioners of other states relating to Bankers Life and Casualty Company, and replies thereto; transcript of minutes of meeting of Insurance Commissioners held at the Henry Grady Hotel, Atlanta, Georgia, June 18, 1951, which minutes were taken down in shorthand and transcribed by Jenny Falks Salomon; correspondence between said Insurance Commissioner and the insurance commissioners of Tennessee, Ohio, Alabama, and Florida indicative of what actions relative to Bankers Life and Casualty Company were contemplated in those states; which records and papers it was the official duty of said Jenny Falks Salomon, under instructions given her by said Insurance Commissioner, to keep secret and not to disclose the contents thereof to anyone, including accused"; and the question is, therefore, raised whether such letters and minutes come within the meaning of any record belonging to a public office in this State.
Under the act of 1912 as amended by the act of 1945 (Ga. L. 1912, pp. 119, 121; Ga. L. 1945, p. 443; Code, Ann. Supp., § 56104), "The Insurance Commissioner may at any time examine into the affairs of any insurance company doing business in this State . . and . . he, his deputy or any examiner authorized by him, may examine under oath the officers and agents of such company and all persons deemed to have material information regarding the company's property or business."
"The office of the Insurance Commissioner shall be deemed a public office and the records, books and papers thereof, on file therein, shall be deemed public records of the State, except as may be provided otherwise herein." Code, § 56-101.
The indictment shows that the papers, letters, and minutes of the meeting of the insurance commissioners, which the defendants hired Mrs. Salomon to secrete and remove from the office of the Insurance Commissioner and to deliver to them were concerned with an investigation which the Insurance Commissioner was making of the Bankers Life and Casualty Company, and they were unquestionably such papers of the office of the Insurance Commissioner as to make them public records within the meaning of Code §§ 56-101 and 89-9903; nor does it make these papers less public records within the meaning of those two sections of the Code that the Insurance Commissioner instructed Mrs. Salomon not to disclose their contents. Under Code (Ann. Supp.) § 56-105, the Insurance Commissioner is empowered to withhold any report of an investigation of an insurance company doing business in this State from public inspection for such time, not to exceed 60 days, as he may deem proper; and this court cannot say as matter of law that the documents here in question were not a part of the Insurance Commissioner's investigation, nor that they did not constitute a part of a proposed report.
Under the construction which we have placed upon the indictment, it clearly and plainly, and in compliance with Code § 27-701, states a violation of a statute of this State, namely, Code § 89-9903, and the trial court did not err in overruling the defendants' general demurrers thereto.
2. All the special demurrers were, of course, prepared to strike at the indictment as one charging bribery, and special grounds 2, 3, 4, 5, 6, and 7, which do nothing more than that, are not pertinent to the present discussion.
3. If the documents here in question were public documents, papers, or records, as we have said, then the Insurance Commissioner could not, of course, change their nature by any instructions which he might give Mrs. Salomon; the Insurance Commissioner's instructions to Mrs. Salomon not to disclose the contents did not change their nature, and the crime committed was not her divulgence of the secret contained therein, but the crime consisted in the defendants' causing or procuring her to withdraw them and deliver them to the defendants. The allegations as to the payment of the $500 and the promise of the lifetime job are not surplusage, but constitute a statement of the "procurement" of the crime which is prohibited, and for these reason grounds 8, 9, 10, 11, and 12 are ineffective as demurrers to the indictment.
4. For the same reasons as stated in division 2 of this opinion, the additional demurrer filed on December 3, 1951, was not pertinent.
Judgments affirmed. Gardner, P. J., and Townsend, J., concur.