Appeal from Superior Court, Navajo County; Don T. Udall, Judge.
Harry T. Hendricks was convicted of bribery, and he appeals.
Darrell R. Parker, of Phoenix, and H. Karl Mangum, of Flagstaff, for appellant.
W. Dean Nutting, of Holbrook, County Atty., Navajo County, for appellee.
Stanford, Chief Justice. LaPrade and Udall, JJ., concurring.
Stanford, Chief Justice.
[66 Ariz. 237] This is an appeal from a judgment of conviction of defendant for the crime of bribery. The information charged that:
"The said Harry T. Hendricks on or about the 15th day of February, 1947, * * * did then and there wilfully, unlawfully and feloniously give a bribe of Seventy-five dollars ($ 75.00), * * * to Richard Lewis Whitlow, * * * an Arizona Highway Patrolman, with the corrupt intent * * * then and thereby, * * * corruptly to influence the said Richard Lewis Whitlow to not report to the county authorities * * * any reports or complaints of persons who had been gambling at the Log Cabin Trading Post, near Sanders, Arizona, which would enable the said operators of the said gambling place at the Log Cabin Trading Post to avoid prosecution for the unlawful opening, carrying on and conducting at said place certain unlawful games with cards and dice, * * *."
Upon trial defendant was found guilty of the crime charged and has appealed to this court from the trial court's judgment of conviction and sentence; the denial of a motion in arrest of judgment; and also the court's order denying defendant's motion for a new trial. The defendant took the witness stand and frankly admitted giving $ 70 in currency to Patrolman Whitlow in Holbrook, Navajo County, after discussing with him grievances of the travelling public communicated to the patrolman relative to gambling at the establishment known as the Log Cabin Trading Post near Sanders in Apache County. Defendant further admitted that at that time he suggested to the patrolman that it would be just as easy to refer aggrieved persons back to the establishment for a refund of their gambling losses as to refer them to the Apache County authorities at St. Johns. Defendant, however, emphatically denied that he had a criminal intent in offering to bribe the patrolman or to influence him corruptly in the performance of his duties, it being his contention that acting under the orders of the Attorney General of the State, whose representative he claimed to be, he was merely engaged in testing the honesty and integrity of the officer Whitlow. The State on the other hand contended that all of the activities of defendant at the time of the commission of the alleged offense, and some months prior thereto, were part of a scheme and plan furthered, encouraged, and actively participated in by the Attorney General to [66 Ariz. 238] promote and control gambling operations in the State of Arizona, and to bribe and corrupt county and other public officials in order to assure their noninterference with such operations.
Defendant has presented thirty-eight assignments of error committed by the trial court but has included all in five propositions of law. The first three assignments of error pertain to a denial of a continuance requested by defendant for the trial date of the case in the superior court and are included in Proposition of Law No. 1, and that
proposition of law is: "Continuance should be granted where the ends of justice will be served thereby." Defendant on this subject refers to this court's case of City of Tucson v. O'Reilly Motor Co. 64 Ariz. 240, 168 P.2d 245, 252, decided April 22, 1946, which case enters into the matter of continuances, but from that case this court adopted a paragraph from 17 C.J.S., Continuances, § 22, as follows: "As a general rule a continuance for want of preparation will be refused. An applicant, to be entitled to relief on such ground, must show some precise legal or strong equitable reason and the exercise of reasonable diligence in every direction in which he claims to be unprepared."
Section 21-801, A.C.A. 1939, says: "Whenever an action has been set for trial on a specified date by order of the court, no postponement of the trial shall be granted except for sufficient cause, supported by affidavit, or by consent of parties, or by operation of law."
Counsel for defendant in compliance with both sec. 21-801, supra, and sec. 44-1605 did make proper application for continuance accompanied by supporting affidavits and a certificate that such application was made in good faith and without any purpose of delaying or hindering the State of Arizona in the prosecution of said cause.
Defendant, 51 years of age, had been in police work as a detective and otherwise since 1915, and from 1930 to 1945 was continuously employed as a highway patrolman by the State of California. Because of some disability he was retired from that duty on a pension. He came to Phoenix, Arizona, in 1946. Defendant was arrested on the 20th day of February, 1947. Preliminary hearing was held on the following March 1st. At that preliminary hearing defendant had counsel in Mr. Guy Axline of Holbrook, Arizona, the place of the trial, and Mr. Axline is known to be one of the most capable attorneys of our state. Defendant was arraigned, entering his plea of not guilty, on March 15, 1947, at which time the case was set for trial on March 27, 1947. He was not then represented by counsel. It is plain in the affidavits, however, that defendant did not secure present counsel for the trial of the case until the 21st day of March. His two attorneys, Mr. Darrell R. Parker of Phoenix, Arizona, and Mr. H. Karl Mangum, former superior court judge of Coconino County, Arizona, cannot be excelled for their astuteness and ability as attorneys of the bar of our state. Defendant [66 Ariz. 239] was a man of considerable experience who knew the operations of the law and had funds with which to employ counsel of his own choosing. Section 44-1033, A.C.A. 1939, provides: "Time to prepare for trial. -- After a plea of not guilty the defendant is entitled to at least two (2) days to prepare for trial unless the court for good cause shown shall allow further time."
Here the trial commenced thirty-five days after his arrest, and some twelve days after the entering of his plea of not guilty. The fact that defendant saw fit to delay the employment of counsel who actually represented him at the trial is not legal grounds for a continuance, furthermore the record shows that he was very ably represented. We stated in the case of Quayle v. State, 19 Ariz. 91, 165 P. 331, 333, that: "The granting of a postponement of the trial is a matter within the sound legal discretion of the trial court, and, when the action of the court is brought into question on appeal, the ruling made will not be disturbed by an appellate court unless it is made to appear that such discretion has been abused, to the defendant's prejudice."
We do not consider the court in this case abused its discretion, and hence there is no merit to the assignment.
We next are confronted with defendant's claim that no criminal offense is charged in the information or shown by the proof because, as a matter of law, "There can be no bribery of any officer by offering him a reward to do or refrain from doing a particular act not within the scope of his official authority."
There are no common-law crimes in Arizona, sec. 43-101, A.C.A.1939. And the pertinent portion of the statute here applicable, sec. 43-1702, reads as follows: "Public officer -- Bribery. -- Every person who gives or offers any bribe to any public officer with intent to influence him in respect to any act, * * * or other
proceeding as such officer is punishable * * *." (Emphasis supplied.)
Defendant contends that the emphasized portion of the above statute restricts the crime of attempted bribery to the attempt to influence only those actions or matters which come within the official scope of the officer's duties. And looking to the statutes that set forth the duties of highway patrolmen, defendant concludes that directing highway travelers who have been "fleeced" in gambling games at establishments along the highway to the proper authorities to report their grievances is so definitely outside ...