State v

Agan, 259 Ga. 541, 384 S.E.2d 863 (1989), cert. denied, 494 U.S. 1057, 110 S. Ct. 1526, 108 L. Ed. 2d 765 (1990). Transfer may come within definition of ‘‘contribution.’’ — Transfer that is a bribe as defined in O.C.G.A. § 16-10-2 also may come within the definition of ‘‘contribution’’ as contained in the third sentence of O.C.G.A. § 21-5-3(6); the fact that such a transfer must be reported does not change the transfer’s character as a bribe. State v. Agan, 259 Ga. 541, 384 S.E.2d 863 (1989), cert. denied, 494 U.S. 1057, 110 S. Ct. 1526, 108 L. Ed. 2d 765 (1990). Former Code 1933, § 26-2301 (see now O.C.G.A. § 16-10-2(a)(2)) must be read in pari materia with the rest of the section. King v. State, 246 Ga. 386, 271 S.E.2d 630 (1980). Meaning of offense set forth in paragraph (a)(2) of former Code 1933, §§ 26-4101 and 26-4102 (see now O.C.G.A. § 16-10-2) was dependent upon language of paragraph (a)(1) of that section with respect to purpose for which person ‘‘solicits or receives’’ and was thus restricted to ‘‘influencing him in performance of any act related to functions of his office or employment’’ whereas former Code 1933, § 26-2304 (see now O.C.G.A. § 16-10-4(b)) included solicitation for sale of influence by perpetrating officer or employee, who might or might not be a member of the legislative body, or others, members of the legislative body, to assure passage or defeat of legislation. Ansley v. State, 124 Ga. App. 670, 185 S.E.2d 562 (1971), cert. denied, 408 U.S. 929, 92 S. Ct. 2503, 33 L. Ed. 2d 341 (1972). Offering bribe to two officers at same time and place constitutes two 16-10-2 offenses. — Although at same place and time under same circumstances, appellant extended offer of bribe to two officers, appellant’s conduct constituted a violation of former Code 1933, § 26-2301 as to each, and the two counts of bribery did not have to be consolidated for trial. Hall v. State, 155 Ga. App. 724, 272 S.E.2d 578 (1980) (see O.C.G.A. § 16-10-2). Distinction between this section and § 16-10-4(b). — Former Code 1933, § 26-2301 (see now O.C.G.A. § 16-10-2) was restricted to bribes to influence an official in the official’s performance of any act related to functions of office or employment, whereas former Code 1933, § 26-2304 (see now O.C.G.A. § 16-10-4(b)) included the sale of an official’s influence on others who were members of a legislative body. Ansley v. Stynchcombe, 480 F.2d 437 (5th Cir. 1973). Acquittal under this section not necessarily inconsistent with conviction under § 16-10-4. — From standpoint of conviction and acquittal, acquittal on a count under former Code 1933, § 26-2301 (see now O.C.G.A. § 16-10-2) was not, as a matter of law, inconsistent and repugnant to a simultaneous conviction on a count under former Code 1933, § 26-2304 (see now O.C.G.A. § 16-10-4). Ansley v. State, 124 Ga. App. 670, 185 S.E.2d 562 (1971), cert. denied, 408 U.S. 929, 92 S. Ct. 2503, 33 L. Ed. 2d 341 (1972). Lesser included offense of bribery. — Offense of violation of oath by a public officer is a lesser included offense of bribery. Nave v. State, 171 Ga. App. 165, 318 S.E.2d 753 (1984). Proof of the alleged bribery of an assistant district attorney as a factual matter would include the facts necessary to establish a violation of oath, and thus the latter is embraced within the charge of bribery and constitutes a lesser included offense of that crime. Nave v. Helms, 845 F.2d 963 (11th Cir. 1988). Receiver of bribe might be convicted, although person paying money is innocent. — Receiver of bribe might be convicted although person who paid money might have been in fact ignorant that receiver, in order to do what was 602 requested of the receiver, would have to act in such official capacity as to commit crime of bribery. Slaughter v. State, 99 Ga. App. 239, 108 S.E.2d 161 (1959). Municipal officer fell within scope of former Code 1933, §§ 26-4101 and 26-4102 (see now O.C.G.A. § 16-10-2). Wellborn v. State, 78 Ga. App. 520, 51 S.E.2d 588 (1949). Bribery statute is applicable to members of municipal council. Turner v. State, 43 Ga. App. 799, 160 S.E. 509 (1931). Former Code 1910, §§ 270, 271 (see now O.C.G.A. § 16-10-2) was applicable to an attempt to offer money to a member of the Atlanta City Council for purposes of trying to influence the council member’s official action. Taylor v. State, 44 Ga. App. 64, 160 S.E. 667 (1931), cert. dismissed, 175 Ga. 642, 165 S.E. 733 (1932), overruled on other grounds, State v. Tyson, 544 S.E.2d 444 (Ga. 2001). Offices of police officer and deputy sheriff of county were included in the coverage provided by former Code 1933, §§ 26-4101 and 26-4102 (see now O.C.G.A. § 16-10-2). Usry v. State, 90 Ga. App. 644, 83 S.E.2d 843 (1954). Statute of limitation. — Because the existence, execution, and timing of an agreement that allegedly violated the bribery statute were unknown to the state before February 2010, the statute of limitation for the bribery charge was tolled until it was discovered; and the trial court did not err by denying the defendant’s plea in bar based on the expiration of the statute of limitation. Kenerly v. State, 325 Ga. App. 412, 750 S.E.2d 822 (2013). Cited in Ken Stanton Music, Inc. v. Board of Educ., 227 Ga. 393, 181 S.E.2d 67 (1971); Partain v. State, 129 Ga. App. 213, 199 S.E.2d 549 (1973); Hickox v. State, 138 Ga. App. 882, 227 S.E.2d 829 (1976); Patterson v. State, 247 Ga. 736, 280 S.E.2d 836 (1981); United States v. Williams, 642 F.2d 136 (5th Cir. 1981); Patterson v. State, 161 Ga. App. 85, 289 S.E.2d 270 (1982); United States v. Ward, 808 F. Supp. 803 (S.D. Ga. 1992); Five Star Partners v. Vincent Netherlands Properties, 169 Bankr. 994 (Bankr. N.D. Ga. 1994). 16-10-2 Application Receipt of bribe by assistant district attorney proved. — Under the evidence, the state met its burden of proving that an assistant district attorney received something of value to influence the attorney’s action in the discharge of a legal or public duty, and the payments could be found by a jury to have influenced the attorney’s decision as to whether to reopen the case and prosecute an accused. Nave v. State, 166 Ga. App. 466, 304 S.E.2d 491 (1983). Receipt of bribe by jailer. — Motion for general demurrer by defendant, a county jailer, was properly denied on defendant’s indictment on a charge of bribery for receiving marijuana as payment for delivering a pack of cigarettes to an inmate because where the indictment alleged the giving of a thing of value in exchange for a service rendered, the thing could not be considered a gift, notwithstanding the $10 value of the alleged bribe. Murkerson v. State, 264 Ga. App. 701, 592 S.E.2d 184 (2003). Evidence that a corrections officer threatened an inmate that if the inmate did not give the officer $2,000, the officer would have the inmate charged with marijuana possession, was insufficient for a jury to find that the officer attempted to improperly influence official action by another officer in violation of O.C.G.A. § 16-10-5, although it might have supported a conviction for bribery in violation of O.C.G.A. § 16-10-2. Beard v. State, 300 Ga. App. 146, 684 S.E.2d 306 (2009). Small ‘‘gift’’ to detention officer. — Within the context of O.C.G.A. § 16-10-2(a)(2), it is only ‘‘gifts’’ which are excepted from the purview thereof and not ‘‘bribes,’’ no matter how small the amount involved; accordingly, where a trial court construed § 16-10-2 and held that small amounts of cash that added up to less than $100, which were accepted by defendant, a detention officer, from inmates, were specifically excepted from the offense of bribery, it did not construe the statute using the ordinary meaning of the words pursuant to O.C.G.A. § 1-3-1(b), which was error. State v. Fortner, 264 Ga. App. 783, 592 S.E.2d 454 (2003). 603 Application (Cont’d) Libel action. — Verdict awarding general damages in a libel suit filed by an attorney against a former client, which showed that the client published facts intimating that the attorney bribed judges, contrary to O.C.G.A. § 16-10-2, was upheld as: (1) the jury could reasonably conclude that the attorney was a limited public figure, and was properly charged; (2) the client failed to seek any remedy regarding the verdict entered; (3) the trial court did not err in prohibiting the client from offering testimony about corrupt individuals who were exposed as a result of the publication about the attorney; and (4) based on the evidence of said publication on the client’s web site, neither a directed verdict or judgment notwithstanding the verdict in the client’s favor was authorized. Milum v. Banks, 283 Ga. App. 864, 642 S.E.2d 892 (2007). Holding relating to definition of ‘‘entitled’’ was harmless error. — When the court of appeals found the trial court’s definition of the term ‘‘entitled’’ misleading because the term failed to inform the jury that a public official is entitled to receive campaign contributions, the Supreme Court reversed the Court of Appeals holding because the more appropriate meaning of ‘‘entitled’’ was more restrictive than the definition given by the trial court, any error was helpful to the accused, and was therefore harmless error. State v. Agan, 259 Ga. 541, 384 S.E.2d 863 (1989), cert. denied, 494 U.S. 1057, 110 S. Ct. 1526, 108 L. Ed. 2d 765 (1990). Rational trier of fact could have found the essential elements of the crime of bribery to have been established beyond a reasonable doubt in regard to defendant; there was ample evidence at trial that defendant gave payments to county commissioners for the specific purpose of influencing their votes on his application for a building height variance. State v. Agan, 259 Ga. 541, 384 S.E.2d 863 (1989), 494 U.S. 1057, 110 S. Ct. 1526, 108 L. Ed. 2d 765 (1990). Evidence was sufficient to authorize the jury to conclude that defendant made payments to county commissioners in an 16-10-2 effort to induce a vote in favor of defendant’s application for a zoning variance. State v. Agan, 259 Ga. 541, 384 S.E.2d 863 (1989), cert. denied, 494 U.S. 1057, 110 S. Ct. 1526, 108 L. Ed. 2d 765 (1990). Sufficient evidence supported a bribery conviction under O.C.G.A. § 16-10-2 when: the defendant, a jail officer, agreed to sell an inmate a handcuff key; the defendant gave the inmate the key in exchange for $100; the inmate told a shift supervisor that the inmate had the key and told investigators about how the inmate got the key; and a second inmate overheard the discussion between the defendant and the inmate. Felder v. State, 286 Ga. App. 271, 648 S.E.2d 753 (2007). Court under no obligation to charge on bribery offense. — When the defendant was not charged with bribery and did not assert that bribery constituted a lesser included offense of any of the charges for which the defendant was on trial, the trial court was under no obligation to charge the jury on this offense. Gober v. State, 203 Ga. App. 5, 416 S.E.2d 292, cert. denied, 203 Ga. App. 906, 416 S.E.2d 292 (1992). Intent shown by offer to participate in drug distribution. — Rational trier of fact could have found that the defendant’s intent in offering to allow a police officer to participate in the defendant’s drug distribution activities where the officer could make $6,000.00 a week or more was specifically to influence the officer in the performance of official duties. Lee v. State, 204 Ga. App. 283, 418 S.E.2d 809 (1992). No evidence of payments made to informants in exchange for testimony against defendant. — Trial court did not err in denying the defendant’s motion for new trial because there was no violation of the bribery statute, O.C.G.A. § 16-10-2(a)(1), when the record contained no evidence that the state made payments or promised benefits in exchange for testimony at the defendant’s trial with the purpose of influencing informants in the performance of such testimony, and it was up to the jury to weigh the evidence of the state’s arrangements with the informants in assessing their credibility; the informants were offered leniency, and one of the informants was 604 paid cash, in exchange for their assistance in drug investigations by the police, only a portion of which involved the controlled buys with the defendant, and although the parties could have contemplated that the informants would testify upon the completion of the investigation, there was no evidence that the informants were paid in exchange for their testimony. Moreland v. State, 304 Ga. App. 468, 696 S.E.2d 448 (2010). Selective prosecution. — When in support of the defendants’ pre-trial motion to dismiss for selective prosecution, defendants claimed the defendants could not be prosecuted for paying money to county commissioners for the purpose of influencing their vote on a pending land use application because the district attorney had not prosecuted others who had made similar payments, the Court of Appeals correctly held that the trial court applied an incorrect standard in denying the defendants an evidentiary hearing on their selective prosecution defense; the proffer included details of money transfers that were similar to those for which the defendants were prosecuted, sources of reliable and available evidence, i.e., permanent public records, and names of witnesses who were disinterested in the prosecution. State v. Agan, 259 Ga. 541, 384 S.E.2d 863 (1989), cert. denied, 494 U.S. 1057, 110 S. Ct. 1526, 108 L. Ed. 2d 765 (1990). Admissibility of display of currency. — In a case where defendants allegedly bribed county commissioners, the court did not determine the propriety of the admission into evidence of currency obtained through the cashing of checks and the district attorney’s display of that currency; the error, if any, was not so harmful as to require reversal. State v. Agan, 259 Ga. 541, 384 S.E.2d 863 (1989), cert. denied, 494 U.S. 1057, 110 S. Ct. 1526, 108 L. Ed. 2d 765 (1990). Debtor’s bribery claim failed. — Debtor’s claim that bribery, as defined in O.C.G.A. § 16-10-2, had been committed by a bank and the bank’s director and was therefore a predicate act for purposes of the debtor’s civil racketeering claims was without merit; the debtor contended that the bank bribed the debtor’s ex-spouse to file for divorce and to write a check from 16-10-2 the debtor’s account, but there was no evidence that the ex-spouse was a state official or representative. Tucker v. Morris State Bank, 2005 U.S. App. LEXIS 24544 (11th Cir. Nov. 14, 2005) (Unpublished). Constitutional Issues Former Code 1933, § 26-2301 (see now O.C.G.A. § 16-10-2) was not unconstitutionally vague. King v. State, 246 Ga. 386, 271 S.E.2d 630 (1980); Whitfield v. State, 247 Ga. 367, 276 S.E.2d 841 (1981); State v. Agan, 259 Ga. 541, 384 S.E.2d 863 (1989), cert. denied, 494 U.S. 1057, 110 S. Ct. 1526, 108 L. Ed. 2d 765 (1990). Former Code 1933, § 26-2301 (see now O.C.G.A. § 16-10-2) was not vague, ambiguous, or violative of U.S. Const., amends. 5 and 14. Whitfield v. State, 159 Ga. App. 398, 283 S.E.2d 627 (1981). Bribery statute is not an impermissible restraint upon free speech. — Bribery statute is not an impermissible restraint upon free speech under the U.S. Const., amend. 1; the bribery statute, which places no limitation upon amounts of contributions or expenditures, restricts the purposes for which any benefit, reward or consideration may be offered or given to, or solicited, or accepted by a public officer. State v. Agan, 259 Ga. 541, 384 S.E.2d 863 (1989), cert. denied, 494 U.S. 1057, 110 S. Ct. 1526, 108 L. Ed. 2d 765 (1990). O.C.G.A. § 16-10-2 does not violate the First Amendment on the statute’s face since the statute includes corrupt intent as an element. Therefore, the statute was not unconstitutional as applied to the defendant’s offer of campaign contributions to influence the decision of county commissioners’ regarding the defendant’s zoning variance request. Agan v. Vaughn, 119 F.3d 1538 (11th Cir. 1997), cert. denied, 523 U.S. 1023, 118 S. Ct. 1305, 140 L. Ed. 2d 470 (1998). Purpose. — O.C.G.A. § 16-10-2 was intended to discourage the making of affirmatively false statements. Watkins v. State, 191 Ga. App. 87, 381 S.E.2d 45, cert. denied, 191 Ga. App. 923, 381 S.E.2d 45 (1989). 605 Constitutional Issues (Cont’d) False statement to state trooper. — Defendant, by stating to a state trooper that defendant’s brother-in-law had been driving a truck involved in a fatal accident when, in fact, defendant had been the driver, made a false statement in a matter within the jurisdiction of a department of state government. Watkins v. State, 191 Ga. App. 87, 381 S.E.2d 45, cert. denied, 191 Ga. App. 923, 381 S.E.2d 45 (1989). ‘‘Benefit, reward or consideration’’ need not be specifically defined. — Words, ‘‘benefit, reward or consideration’’ in this section all relate to thing of value and need not be specifically defined to meet constitutional standards. King v. 16-10-2 State, 246 Ga. 386, 271 S.E.2d 630 (1980). Application of confiscated bribe money to fine not tantamount to prohibited forfeiture. — When trial court, in bribery case, ordered confiscation of bribe money and ruled that money might be used toward payment of fine assessed in case, and when bribe money did not exceed maximum fine under former Code 1933, § 26-2301 (see now O.C.G.A. § 16-10-2), confiscation was not tantamount to forfeiture prohibited under former Code 1933, § 85-1109 (see now O.C.G.A. § 44-5-210) and Ga. Const. 1976, Art. I, Sec. I, Para. XVII (see now Ga. Const. 1983, Art. I, Sec. I, Para. XX). Hall v. State, 155 Ga. App. 724, 272 S.E.2d 578 (1980).