Under Section 3177, Revised Statutes 1919, the defendant was indicted in St. Louis County on charge of bribing a public official. He was tried before a jury, and June 18, 1924, a verdict was returned finding him guilty and assessing punishment at two years' imprisonment in the state penitentiary.
The evidence showed that in April, 1923, one B.H. Jolly was County Superintendent of Public Schools of St. Charles County. The defendant, Robert Adcox, was interested in procuring licenses from the State Board of Health for persons desiring to practice medicine and surgery. Before licensing an applicant to practice medicine, the State Board of Health required a certificate showing certain preliminary education, besides medical education. Just what this was appears only by inference.
Adcox had an arrangement with Jolly whereby the latter, as Superintendent of Public Schools, was to sign and swear to certificates showing the extent of education acquired by persons to be named by Adcox. Adcox made out the certificates and sent them to Jolly; Jolly swore to them, returned them to Adcox, who paid him five dollars each for them. The certificate, which is the subject of the bribery charged in this case, appeared to have been made out and sworn to by Jolly, July 12, 1917. It certified that one Bernard Adler had been examined by him July 5th, 6th and 7th, 1917; that the examination consumed sixteen hours, and covered the work of a Missouri high school for four years, as required by the Medical Association for matriculants in medicine *Page 59 and surgery, and applicants before state medical examining boards for licenses to practice. It showed Adler's grades in twenty subjects, each being above seventy-five per cent. This purported to have been sworn to by Jolly, when in fact no such person as Bernard Adler ever appeared before Jolly or was examined by him. Adcox paid for the certificate in St. Louis April 27, 1923, and it was handed to Adler for the purpose of his application for a license. The State's case was made out entirely on the evidence of Jolly, who testified that his certificate was false in every respect.
No evidence was offered on the part of the defendant except that of witnesses who swore that he possessed good reputation.
The indictment with proper formality alleged these facts shown by the evidence, and charged that Jolly, as County Superintendent of Public Schools of St. Charles County, was authorized by law to issue certificates to persons appearing before him, showing that they had successfully passed examinations equivalent to a grade from an accredited high school; that April 27, 1923, the defendant, Robert Adcox, corruptly entered into an agreement with him, "in his official capacity," by which Adcox was to pay Jolly for certificates, etc., and set out the transaction relating to the Adler certificate.
The defendant filed a motion to quash the indictment. The motion was overruled, evidence was introduced, defendant was found guilty, as stated, was sentenced and appealed.
I. In order to constitute bribery of an official, under Section 3177, the bribe must have been in order "to induce him (the officer) to neglect or omit the performance of anyOfficial official duty, or to perform such duty with partiallyDuty. or favor, or otherwise than as is required by law."
No other language in that section can possibly be construed to apply to the act here charged. The general rule, laid down in 9 Corpus Juris, p. 404, is as follows: *Page 60
"In order to bribe an officer, he must be in the discharge of a legal or official duty. In other words, there can be no bribery of any official to do a particular act unless the law requires or imposes on him the duty of acting. A moral duty is insufficient."
In case of State v. Butler, 178 Mo. l.c. 319, this court said in relation to the bribery of an official:
"The very purpose of the statute is to prevent public officials from being influenced in respect to questions upon which theyare authorized to act. How can an officer be influenced to act when there is no law requiring him to do so, and no power under the law authorizing him to act?" [See also, State v. Faris, 229 S.W. l.c. 1102; State v. Lehman, 182 Mo. 459-460.]
II. Article XI, Chapter 102, Revised Statutes 1919, defines the powers and duties of a county superintendent of schools. It sets out in detail everything that comes within his authority. There is nothing in the article, nor in any part of the chapter, requiring him or authorizing him to issue certificates of graduation, or to certify grades of students inCounty any of the schools of his county. The onlySuperintendent. certificates he is authorized to issue are certificates to teachers, mentioned in Article XII, beginning with Section 11358. Certificates of graduation and of grades of students very naturally are issued by the teachers who give the instruction and make the examinations of such students. It was therefore, not within the official duty of Jolly to issue a certificate, such as the one involved in this case, or any other of like character.
III. Under Section 7332, Revised Statutes 1919, in the chapter relating to medicine, surgery, etc., a person desiring to practice medicine, in presenting his applicationCertificate of to the State Board of Health was required toGraduation. furnish a "certificate from the county school commissioner certifying that he has satisfactorily passed an examination equivalent *Page 61 to a grade from an accredited high school." When that law was in force, it may be said, it was sufficient to impose upon the county superintendent of schools the duty of issuing certificates, such as the one under consideration here. That statute was repealed and re-enacted in 1921, and again in 1923, leaving out any language which could be applied to a county superintendent of schools.
The Act of 1923, approved March 27th of that year, was not in force when the alleged offense was committed, and the Act of 1921 applies. As the section reads (Laws 1921, p. 472), an applicant for license to practice medicine is required to furnish satisfactory evidence of his preliminary qualifications, to-wit, "a certificate of graduation from an accredited high school," etc. The certificate in this case was not a certificate of graduation. The act which Jolly purported to perform was not within the compass of any official duty of any officer.
There may be common-law bribery. [See State v. Faris, 229 S.W. l.c. 1102.] It may be thought that, although the offense charged here is bottomed squarely on Section 3177, it could be shown that it was a custom, and therefore a duty of Jolly toCommon-Law issue such a certificate. Even if that wereBribery. permissible it would not affect this case. Jolly himself testified that he was not superintendent of the city schools of St. Charles; that he had no jurisdiction there to make examinations or to issue certificates. He was not a teacher, and there was no such custom or practice.
Adcox paid for a scrap of paper which, if it had told the truth, was worthless for any purpose.
We are obliged, therefore, to conclude that no criminal offense was stated in the indictment. The Attorney-General confesses error in this respect and asks that the judgment be reversed.
IV. The Board of Health, under Section 7332, Laws 1921, page 472, had no authority to accept the certificate made by Jolly. Only a "certificate of graduation from *Page 62 an accredited high school or its equivalent [the equivalent of the school] or state normal school, college,Acceptance. university or academy," would meet the requirements of the law. Such proof of graduation would naturally have to be certified by the person or persons authorized to do it; that necessarily would be teachers who furnished the instruction, or those in charge of the records of grades in such schools. Doubtless the Board of Health takes legal advice in such matters, and there is no evidence that Adler ever presented his certificate to the board.
Doubtless Jolly was guilty of making a false affidavit under Section 3130, Revised Statutes 1919. In that case hisFalse act was unofficial, a misdemeanor, and not theAffidavit. subject of bribery under any statute.
If Adcox used the paper which he paid Jolly to swear to, in order to perpetrate a fraud upon the State Board of Health, that is another and different offense, which does not appearFraud. in the record here.
The judgment is reversed and the defendant discharged.
All concur.