42 Wn.2d 1, THE STATE OF WASHINGTON, Respondent, v. SAMUEL EMMANUEL, Appellant

[No. 32140. Department Two.     Supreme Court      February 5, 1953.]

THE STATE OF WASHINGTON, Respondent, v. SAMUEL
                    EMMANUEL, Appellant.1

[1] BRIBERY - PARTICULAR OFFICERS - SECRETARY OF LAND BOARD - SALE OF TIMBER - EVIDENCE AS TO OFFICIAL DUTIES. In a prosecution of a former secretary of the state land board for asking a bribe, held that, although the statute providing for such office specifies no duties for it, there was evidence that he had official duties respecting the sale of state timber which could be affected by the payment or promise of payment of a bribe, and that an application for the appraisal and sale of state timber, which was a matter concerning which his official duties might be affected, was pending before him at the time of the alleged asking a bribe from the manager of the company making the application.

[2] SAME - NATURE AND ELEMENTS OF OFFENSE - OFFICIAL DUTIES NOT PRESCRIBED BY STATUTE. RCW 9.18.020, defining the crime of asking or receiving a bribe, does not limit such crime to cases where official duties prescribed by statute may be affected; it being sufficient if the state officer, agent, or employee is given such official duties by direction of his superiors or by customary office practice.

[3] SAME - NATURE AND ELEMENTS OF OFFENSE - ASKING BRIBE - EVIDENCE OF "AGREEMENT OR UNDERSTANDING" - SUFFICIENCY. The provision in RCW 9.18.020, defining the crime of asking or receiving a bribe, to the effect that it be "upon an agreement or understanding" that the official's acts will be influenced thereby, does not require that there be an understanding in the sense of an agreement with the person approached, but merely an understanding on the part of the bribe seeker himself that his official action shall be influenced; hence, in a prosecution for asking a bribe, evidence that the defendant understood in his own mind that he could and would be influenced in his official capacity if the bribe were given and that such understanding was communicated to the person from whom the bribe was solicited, was a sufficient showing of an "agreement or understanding" as those words are used in the statute, and it was


1 Reported in 253 P. (2d) 386.

[2] See 158 A. L. R. 323; 8 Am. Jur. 894.

 2    STATE v. EMMANUEL. [42 Wn. (2d)

not necessary that the state prove that the defendant entered into an actual agreement or understanding with such person.

[4] WITNESSES - EXAMINATION - CROSS-EXAMINATION OF ACCUSED IN CRIMINAL PROSECUTIONS - COLLATERAL MATTERS - STATEMENTS VOLUNTEERED BY ACCUSED. In a prosecution of a former secretary of the state land board for asking a bribe, where in the opening argument of the defendant's counsel and in a statement volunteered by the defendant on cross-examination the representation was made that he devoted himself constantly to his work for the state, such matter was thus opened up for cross-examination even though it was collateral to the crime charged; and it was therefore proper for the state, on cross-examination, to ask general questions concerning the source of a large amount of money which he had received while working for the state.

[5] SAME. In such a prosecution, a line of cross-examination consisting of questions as to whether persons with whom the defendant had transactions had applications pending before the land board at the time thereof, was not opened up by the defendant's testimony regarding his constant work for the state and was irrelevant thereto.

[6] CRIMINAL LAW - EVIDENCE - OTHER OFFENSES. As a general rule, a defendant in a criminal case must be tried on the offense charged, and evidence of unrelated acts of misconduct may not be admitted.

[7] WITNESSES - IMPEACHMENT - CHARACTER AND CONDUCT OF WITNESS - SPECIFIC ACTS OF MISCONDUCT. Under RCW 5.60.040 and 10.52.030, a prior conviction may be shown for the purpose of affecting the weight of a witness' testimony; however, a witness may not be impeached by showing specific acts of misconduct, whether the impeachment is attempted by means of extrinsic evidence or crossexamination, and whether or not the past act of misconduct actually amounts to a crime.

[8] SAME. If a defendant puts his prior conduct in issue by testifying as to his own past good behavior, he may be cross-examined as to specific acts of misconduct unrelated to the crime charged.

[9] SAME - CROSS-EXAMINATION - TO TEST MEMORY. Cross-examination or the purpose of testing a witness' memory is not warranted, where it is along lines forbidden by other rules of evidence.

[10] CRIMINAL LAW - TRIAL - CONDUCT OF COUNSEL - IMPROPER CROSSEXAMINATION OF DEFENDANT. In a prosecution of a former secretary of the state land board for asking a bribe, it was prejudicial error for the state to ask the defendant on cross-examination whether persons with whom the defendant had transactions had applications pending before the land board at the time thereof, regardless of the answers which were elicited.

[11] SAME - APPEAL - PRESERVATION OF GROUNDS - SUFFICIENCY OF OBJECTIONS. In such a prosecution, held that the fact that the defendant did not object to the general preliminary question as to

 Feb. 1953]          STATE v. EMMANUEL.                3

whether he had received any commissions from persons who had applications pending before the board, did not deprive him of the benefit of his subsequent objections.

[12] SAME. Where the proper objections to a line of cross-examination have several times been made and overruled, and any resulting prejudice has already occurred, the matter has been sufficiently preserved for review, notwithstanding the failure to renew the objection with each succeeding question.

Appeal from a judgment of the superior court for Thurston county, Wright, J., entered April 7, 1952, upon a trial and conviction of asking a bribe. Reversed.

Lee Olwell, Rummens, Griffin & Short, and Paul R. Cressman, for appellant.

Ralph G. Swanson and Alfred J. McBee, Special Assistant Attorney General, for respondent.

HAMLEY, J. -

Samuel Emmanuel was brought to trial on an information charging, in two counts, the crime of asking a bribe. The jury disagreed on the second count and convicted on the first. Defendant appeals.

Count 1, on which the conviction was obtained, reads as follows:

"He, the said Samuel Emmanuel, in the County of Thurston, State of Washington, on or about the 27th day of April, 1951, then and there being a person appointed by the Washington State Commissioner of Public Lands and acting for and on behalf of the State of Washington as clerk to the said Washington State Commissioner of Public Lands and as secretary to the Washington State Board of Land Commissioners with duties pertaining to appraisement and sale of timber lands belonging to the State of Washington, did then and there wilfully, unlawfully, and feloniously ask from one Charles Hovey a certain sum of money, the exact amount of which was not specified, as compensation, gratuity, or reward upon an understanding or agreement with the said Charles Hovey, that the opinion, judgment, action, decision, or other official proceeding of the said defendant, Samuel Emmanuel, with relation to those certain applications of the V-M Timber Company for the appraisal and sale of certain timber belonging to the State of Washington and situated on state lands in Cowlitz County, State of Washington, described as follows, to-wit:

 4    STATE v. EMMANUEL. [42 Wn. (2d)

Sections eight (8) and ten (10) and the South one-half (1/2), and the Southeast Quarter (1/4) of the Northeast Quarter (1/4), and the Southeast Quarter (1/4) of the Northwest Quarter (1/4) of Section four (4), all in Township nine (9) North, Range three (3) W., W. M. which said applications were then pending before said Washington State Land Commissioner and before said Washington State Board of Land Commissioners, would be influenced thereby."

On January 12, 1949, the commissioner of public lands (commissioner) appointed appellant to the position of clerk in the commissioner's office. On the same day, the commissioner, as chairman of the board of state land commissioners (board), appointed appellant secretary of that board. He occupied that position until December, 1951.

The statute providing for a secretary for the board specifies no duties for the secretary. RCW 43.65.010 (Rem. Supp. 1941, 7797-10). By established procedure, however, appellant, as secretary of the board, had certain official duties relative to the sale of state timber. One of these duties was to assign the cruisers who were to check the timber for which a purchase application had been filed.

When this had been done and the cruisers had made their reports, it was appellant's practice, at his convenience, to deliver to the administrative assistant to the commissioner the file containing such reports covering the particular application. The latter then prepared recommendations as to price and conditions of sale for submission to the board. If and when approved by the board, the timber was advertised for sale and sold at public auction at a price not less than the minimum fixed by the board.

The transaction in connection with which appellant was convicted of asking a bribe involves the V-M Timber Company, of Vancouver, Washington. On February 7, 1950, this company filed with the commissioner three applications for the purchase of state timber in Cowlitz county. The company was greatly in need of timber, and Charles V. Hovey, manager of the company, several times wrote to appellant urging that cruisers be assigned to check the

 Feb. 1953]          STATE v. EMMANUEL.                5

timber covered by the company's applications. Appellant's replies attributed the delay to lack of cruisers, backlog of applications, or weather conditions.

In a letter dated April 20, 1951, appellant invited Hovey to drop into the office. A few days later, appellant telephoned to Hovey, asking if the latter would be interested in purchasing seven million feet of fir timber on other tracts. When interest was indicated, appellant suggested that Hovey come to Olympia on April 27, 1951, to discuss the matter. It appears that one Irwin Anderson was also interested in this seven million feet of fir, and that appellant had arranged to bring Hovey and Anderson together with the thought that these two might work out some arrangement to handle the purchase together. The three men went to lunch together, after which Anderson left. Hovey and appellant returned to the latter's office.

Hovey testified that appellant then offered to expedite the cruise covering the timber for which the V-M Timber Company had applied and "help out" in securing the bid for the company, in return for a payment of fifty cents a thousand feet. This would have amounted to about thirty thousand dollars on approximately sixty million feet of timber which the company desired to purchase. Hovey testified that when this offer was made, he told appellant that the proposition would be referred to the company. Appellant denied this conversation, and testified that his only purpose in asking Hovey to his office was to arrange a financial transaction between Hovey and Anderson relative to the other timber to which reference has been made.

Appellant's first three assignments of error direct attention to the statute defining the crime of asking or receiving a bribe, and raise the question of whether the evidence was sufficient to support the conviction.

The statute referred to is RCW 9.18.020 (Rem. Rev. Stat., 2321), and reads as follows:

"Every executive or administrative officer or person elected or appointed to an executive or administrative office who asks or receives directly or indirectly, any compensation, gratuity, or reward, or any promise thereof, upon an

 6    STATE v. EMMANUEL. [42 Wn. (2d)

agreement or understanding that his vote, opinion, or action upon any matter then pending, or which may by law be brought before him in his official capacity, shall be influenced thereby; and every member of either house of the legislature of the state who asks or receives, directly or indirectly, any compensation, gratuity, or reward, or any promise thereof, upon an agreement or understanding that his official vote, opinion, judgment, or action shall be influenced thereby, or shall be given in any particular manner, or upon any particular side of any question or matter upon which he may be required to act in his official capacity; and every judicial officer and every person who executes any of the functions of a public office not hereinbefore specified, and every person employed by or acting for the state or for any public officer in the business of the state, who asks or receives, directly or indirectly, any compensation, gratuity, or reward, or any promise thereof, upon an agreement or understanding that his vote, opinion, judgment, action, decision, or other official proceeding shall be influenced thereby, or that he will do or omit any act or proceeding or in any way neglect or violate any official duty, shall be punished by imprisonment in the state penitentiary for not more than ten years, or by a fine of not more than five thousand dollars, or by both."

In contending that the evidence was not sufficient to support a conviction under this statute, appellant first argues that he did not and could not influence in any way the sale of state timber. In this connection, it is asserted that the information charged appellant as an appointed administrative officer; that the only office of that nature which he held was that of secretary of the board; that the statute providing for this office specifies no duties for the secretary; and that, therefore, there was no "matter then pending" before the secretary of the board, to use the words of the statute. State v. Hart, 136 Wash. 278, 239 Pac. 834, is cited by appellant in support of this argument.

[1, 2] In the instant case, unlike the Hart case, there was evidence which the jury was entitled to believe, to the effect that appellant had official duties respecting the sale of state timber which could be affected by the payment or promise of payment of a bribe. As secre all facilities used by the three defendant tenants, is liable for the entire damage.

This argument has merit with respect to the damage, if any, which may have resulted from defective construction

the septic tank by Perkins. See the cases cited in 53 A. L. R. 327, 332, annotation. But if any such damage resulted in this case, it was relatively inconsequential and wholly unsegregated.

[5] Appellant's evidence as to damage pertains almost entirely to the presence of oil and sludge on her premises. There was no testimony, however, tending to show that this resulted from defective facilities constructed by Perkins. Rather, the showing was that any such damage resulted from the improper use of premises by Perkins and his tenants in pouring or washing oil and sludge into drains which led to the highway culvert. A landlord is not liable for damage

 44    MAAS v. PERKINS. [42 Wn. (2d)

to adjoining landowners resulting from a tenant's improper use of the leased premises, unless such improper use was contemplated by the parties when the lease was executed. Meloy v. Santa Monica, 124 Cal. App. 622, 12 P. (2d) 1072; Swift & Co. v. People's Coal & Oil Co., 121 Conn. 579,186 Atl. 629; Spellman v. Sherry, 181 Okla. 174, 72 P. (2d) 793; Little v. Lynn & Marblehead Real Estate Co., 301 Mass. 156, 16 N. E. (2d) 688. No showing was here made that Perkins and his tenants contemplated such improper use of the premises.

The final assignment of error brings into question the dismissal of appellant's suit in so far as the requested injunction is concerned. This question concerns only respondent Perkins. Jeffrey had disassociated himself from the Perkins Oil Company prior to the trial, and both counsel have informed us that Shenefelt no longer operates the service station.

The evidence indicates that, while some traces of oil and sludge remain on appellant's property, any facilities and practices which may have brought about this nuisance have been largely corrected.

The court was therefore warranted in dismissing this aspect of the case. It should be understood, however, that while the dismissal was with prejudice, it is not, with respect to either monetary damages or injunctive relief, res judicata as to a future trespass or nuisance of the same character.

The judgment is affirmed.

GRADY, C. J., SCHWELLENBACH, DONWORTH, and FINLEY, JJ., concur.