Rehearing Denied July 8, 1952.
Krucker, Evans & Kemper, of Tucson, for appellant.
Fred O. Wilson, Atty. Gen., of Phoenix, Robert Morrison, County Atty. of Pima County, and Morris K. Udall, Chief Deputy County Atty. of Pima County, Tucson, for appellee.
Faires, Superior Court Judge. Udall, C. J., and Stanford, Phelps and La Prade, JJ., concur. De Concini, J., being disqualified, the Honorable C. C. Faires, Judge of the Superior Court of Gila County, was called to sit in his stead.
Faires, Superior Court
[74 Ariz. 147] Appellant, Jerome P. Martin, Sr., was charged with and convicted of the crime of receiving a bribe and sentenced to serve not less than two nor more than five years in the state prison. After the denial of motions in arrest of judgment and for a new trial, he perfected this appeal from the judgment of the lower court.
At the time of the commission of the alleged offense, appellant was the duly elected and acting sheriff of Pima County, Arizona. The information charges that appellant, between the 1st of April and the 25th of May, 1950, wilfully, unlawfully and feloniously asked and received from one Delores Raines and or Charles "Slim" Littler, a bribe in the amount of $ 300, with corrupt intent and the understanding or agreement that appellant would refrain from arresting or interfering with the said Delores Raines in the operation of various houses of prostitution in Pima County, Arizona.
The facts stated in a light most favorable to the state are that Delores Raines arrived in Tucson in February of 1950 and about a month or two later met appellant for the first and only time. They talked about the possibility of her opening a house of prostitution but no arrangements were made and nothing was said concerning the payment of any money. A couple of weeks later she opened a "house" on Ina Road, north of the city of Tucson.
Leslie F. Moore, a deputy sheriff under appellant, was assigned to investigate a complaint concerning the operation of this "house". He told Delores Raines that she would have to close up. She in turn made an offer to pay $ 100 per week for protection. [74 Ariz. 148] Moore communicated this offer to appellant who told him to collect the $ 300 covering the past three weeks' operations. Moore returned to the "house" and collected $ 300 in currency from one Charles "Slim" Littler who said that he was paying it for Delores Raines. Moore then returned to the sheriff's office, put the money in an envelope and gave it to the undersheriff, John Phebus, stating, "here is a present for the boss". The latter placed it on appellant's desk.
Appellant's numerous assignments of error may be grouped under four propositions, the first of which is the contention that the court erred in permitting the introduction of evidence of similar offenses which occurred subsequent to the date of the alleged crime for which the defendant was on trial.
It is the claim of the state that testimony of any like act or acts of the appellant is admissible tending to show motive, plan or scheme, the absence of mistake or accident on his part. Furthermore the state contends that in a prosecution for accepting a bribe, testimony showing a continuing plan or system is not limited to acts occurring on or about the date alleged in the information and testimony may be introduced tending to show both prior and subsequent similar offenses by the defendant. A leading case on this point is People v. Johnston (not cited in the briefs), 328 Mich. 213, 43 N.W.2d 334, 20 A.L.R.2d 1001. The opinion and the annotation that follows contain an exhaustive review of the authorities pertaining to admissibility, in prosecutions for bribery, of evidence tending to show the commission of other similar offenses, whether contemporaneous, prior or subsequent, if relevant to the crime charged.
In the Johnson case, supra, the court held that under the Michigan statute the giving and the receipt of the bribe are separate offenses. The court further held that the purpose of their statute in the prosecution for the crime of bribery was to do away with the rule pertaining to proof of other offenses and to permit the ...