I concur in reversing the judgment in this casej but dissent from the views expressed in the opinion of the majority of the court.
There is no statute in this State which defines the offense for which the plaintiff in error was indicted-and convicted. It is a common law indictment, and it was sought to charge him with having, in his official capacity, offered to receive a bribe.
The indictment alleges that the plaintiff in error, “on the 1st day of December, 1871, then a member of the common council of the city of Chicago, to-wit, an alderman, did then and there unlawfully, wickedly, corruptly, and contrary to his duty as such alderman, propose to receive, as a bribe, of and from William Goggin, a large sum of money, to-xvit, the sum of |4000, to induce him, the said Walsh, as such alderman, to use his influence xvith favor, as such alderman, to induce and secure the purchase by said common council, of said William Goggin, for said city of Chicago, for the place whereon to erect a public school house,” certain real estate, it being the duty of said common council to purchase real estate for said city whereon to erect school houses, contrary to law, etc.
The only question of any importance presented by the record is, whether there is any such offense known to and indictable at common law as an offer by any officer to receive a bribe for his influence, in his official capacity, to induce his favorable action, for corrupt and improper purposes.
. Bribery, at common law, is defined to be “the receiving or offering any undue reward by or to any person whatever whose ordinary profession or business relates to the administration of public justice, in order to influence his behavior in office, and incline him to act contrary to the known rules of honesty and integrity.” But in a more extended and enlarged sense, it may be committed by any person in an official situation who shall corruptly use the power and interest of his place for rewards or promises, and by any person who shall give or offer or take a reward for offices of a public nature. 3 Greenleaf, sec. 71; 1 Russell on Crimes, 154; 4 Bl. Com. 139.
In England the offense of taking bribes was punished in inferior officers with fine and imprisonment, and in those who offer a bribe, though not taken, the same. 4 Bl. Com. 140.
It is said that the law abhors the least tendency to corruption, and upon the principle that an attempt to commit a misdemeanor is itself a misdemeanor. Attempts to bribe public officers, though unsuccessful, have been held to be criminal.
The object was to preserve purity in official conduct, and in the administration of justice; and the tendency of the bribe being to corrupt official conduct, and pervert justice, he who received and he who offered the bribe were alike punished.
In no definition of bribery that I have seen does it include a mere offer on the part of an officer to be himself bribed.
No reference has been made to any elementary work, or to any adjudged case that gives such a definition, and I am persuaded that no such authority can be found.
Bribery is punished on the ground that it tends to produce official misconduct or to corrupt the administration of justice.
It is difficult to understand how a mere offer on the part of an officer to receive a bribe could come within the reason of the rule. A party who would express a willingness to receive a bribe for his official influence is necessarily corrupt, but no extrinsic motive is brought to bear on him by a mere offer on his part not accepted other than his own evil inclinations which previously existed, and hence an offer to receive a bribe does not come within any definition of bribery.
There is no such offense defined by our statute or the common law, as an offer on the part of an alderman to receive a bribe, as alleged, and the motion to quash the indictment ought to have been allowed, and because it was not sustained I am of opinion that the judgment ought to be reversed.
I am unable to comprehend how a party may be indicted for an alleged crime wholly unknown to the law, and on the trial be convicted of immoral conduct, even if it be admitted that such conduct tends to produce official misconduct, and punished as bribery was punished at common law. It would certainly constitute an anomalous proceeding in criminal jurisprudence.
Nearly, if not all of the misdemeanors defined by common law writers, which it has been thought necessary to be punished, have been defined in our criminal code, and provision made for the summary punishment before justices of the peace, and by indictment, and in my judgment it is against the policy of our laws to permit indictments for such offenses not defined by statute.*
Busse The People.
Per Curiam : This indictment is for the same offense and in all respects like the one in Walsh v. The People.
The views of the majority of the court, on all the questions raised, have been fully stated in the opinion in that case, to which reference is made.
The evidence in the record has been carefully considered, and it is the opinion of the court, all the members concurring, that the verdict in this case is not supported by the evidence.
The judgment is reversed and the cause remanded.
Judgment reversed.