COLEMAN, C.J. (to affirm).
The facts and the procedural context in which the issue presented by this case arose are adequately set forth in Justice LEVIN'S opinion. Basically, defendant, a police officer, was convicted of conspiracy to obstruct justice by agreeing with Charles Williams not to arrest Williams in exchange for money. The Court of Appeals reversed defendant's conviction on the basis that Wharton's Rule prohibited this conspiracy prosecution. Leave to appeal was granted and limited to "whether the Court of Appeals erred in ruling that Wharton's Rule should be applied so as to preclude conviction of defendant-appellee of the charge of conspiracy to obstruct justice". Wharton's Rule, as it later became known, was originally a succinct statement of a number of substantive case-law limitations on the law of criminal conspiracy which had developed. It stated:
The indictment charged a conspiracy in violation of MCL 750.505; MSA 28.773 and MCL 750.157a; MSA 28.354(1).
MCL 750.157a; MSA 28.354(1) provides in part:
"Any person who conspires together with 1 or more persons to commit an offense prohibited by law, or to commit a legal act in an illegal manner is guilty of the crime of conspiracy punishable as provided herein:
"(a) Except as provided in paragraphs (b), (c) and (d) if commission of the offense prohibited by law is punishable by imprisonment for 1 year or more, the person convicted under this section shall be punished by a penalty equal to that which could be imposed if he had been convicted of committing the crime he conspired to commit and in the discretion of the court an additional penalty of a fine of $10,000.00 may be imposed."
MCL 750.505; MSA 28.773 provides:
"Any person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by a fine of not more than $10,000.00, or both in the discretion of the court."
The first count of the indictment charged that defendant and others
"did wickedly, maliciously and feloniously conspire, combine and confederate and agree together and with each other and divers other persons to obstruct the due course of justice by willfully and unlawfully failing to perform official duties in exchange for the payment of money".
People v Rudy Davis, 402 Mich. 805 (1977).
"When to the idea of an offense plurality of agents is logically necessary, conspiracy, which assumes the voluntary accession of a person to a crime of such a character that it is aggravated by a plurality of agents, cannot be maintained. As crimes to which concert is necessary (i.e., which cannot take place without concert), we may mention dueling, bigamy, incest, and adultery; to the last of which the limitation here expressed has been specifically applied by authoritative American courts. We have here the well-known distinction between concursus necessarius and concursus facultativus; in the latter of which the accession of a second agent [to] the offense is an element added to its conception; in the former of which the participation of two agents is essential to its conception, and from this it follows that conspiracy, the gist of which is combination, added to crime, does not lie for concursus necessarius. In other words, when the law says, `a combination between two persons to effect a particular end shall be called, if the end be effected, by a certain name,' it is not lawful for the prosecution to call it by some other name; and when the law says, such an offense — e.g., adultery — shall have a certain punishment, it is not lawful for the prosecution to evade this limitation by indicting the offense as conspiracy. Of course when the offense is not consummated, and the conspiracy is one which by evil means a combination of persons is employed to effectuate, this combination is of itself indictable."
2 Wharton, Criminal Law (12th ed), § 1604, p 1862.
Plaintiff argues that Wharton's Rule is not applicable in this case because a plurality of agents is not logically necessary to commit the offense of obstruction of justice, see People v Alexander, 35 Mich. App. 281; 192 N.W.2d 371 (1971). In the context of this case, it has been contended that a police officer's failure to arrest a felon for a corrupt motive is an obstruction of justice, and that this offense does not require a plurality of actors. Accordingly, Wharton's Rule would not bar the conspiracy conviction because more actors were involved than required to commit the charged offense and because the agreement in this case increased the dangers to which society was exposed. Plaintiff claims that the allegations in the indictment that the officer agreed to fail to arrest in exchange for money were not a necessary element of the charged offense, so as to require a plurality of agents, but were only a superfluous explanation of the officer's corrupt motive and the means by which the obstruction was to be accomplished, see Glasser v United States, 315 U.S. 60, 66-67; 62 S Ct 457; 86 L Ed 680 (1942), United States v Manton, 107 F.2d 834 (CA 2, 1938), cert den 309 U.S. 664; 60 S Ct 590; 84 L Ed 1012 (1940).
The rationale underlying the prosecution of separate conspiracy charges is based on the increased dangers presented by the agreement between the plurality of actors. As stated in Callanan v United States, 364 U.S. 587, 593-594; 81 S Ct 321; 5 L Ed 2d 312 (1961):
"This settled principle derives from the reason of things in dealing with socially reprehensible conduct: collective criminal agreement — partnership in crime — presents a greater potential threat to the public than individual delicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked. Combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed. In sum, the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise."
Even assuming arguendo that plaintiff's description of the common-law offense of obstruction of justice is accurate, one cannot ignore the allegation in the indictment that the officer agreed to omit his duty for a reward. Charging an officer with agreeing to omit a duty in exchange for a reward necessarily entails a receipt by the officer of a promise of a reward as consideration for his failure to arrest. This charge sets forth all the elements of the statutory offense defined in MCL 750.123; MSA 28.318, which provides:
"Any * * * officer * * * who shall receive * * * any * * * promise to pay or give money * * * as a consideration * * * for omitting or delaying to arrest * * * shall be guilty of a misdemeanor". Therefore, since the Legislature has expressly made a provision for the punishment of an officer who receives a promise or any valuable thing as consideration for delaying an arrest, this conduct is not punishable under MCL 750.505; MSA 28.773 because it is not an offense "for the punishment of which no provision is expressly made by any statute of this state".
MCL 750.123; MSA 28.318 provides:
"Any sheriff, coroner, constable, peace officer, or any other officer authorized to serve process or arrest or apprehend offenders against criminal law who shall receive from a defendant or from any other person any money or other valuable thing or any service or promise to pay or give money or to perform or omit to perform any act as a consideration, reward or inducement, for omitting or delaying to arrest any defendant, or to carry him before a magistrate, or for delaying to take any person to prison, or for postponing the sale of any property under an execution, or for omitting or delaying to perform any duty pertaining to his office, shall be guilty of a misdemeanor, punishable by imprisonment in the county jail not more than 6 months or by fine of not more than 250 dollars: Provided, That if such defendant shall be charged with an offense against the criminal laws of the state of Michigan, any officer convicted under the provisions of this section, may, in the discretion of the court, be punished by any fine or by any term of imprisonment or both such fine and imprisonment, within the limits fixed by the statute which such defendant is charged with having violated."
The Legislature's decision to establish a specific punishment for an officer who receives a promise as consideration for omitting a duty requires the analysis of other principles incorporated into Wharton's Rule beyond merely whether the target offense of the charged conspiracy can theoretically be committed by one person. One principle incorporated into the rule states:
"In other words, when the law says, `a combination between two persons to effect a particular end shall be called, if the end be effected, by a certain name,' it is not lawful for the prosecution to call it by some other name; and when the law says, such an offense — e.g., adultery — shall have a certain punishment, it is not lawful for the prosecution to evade this limitation by indicting the offense as conspiracy." 2 Wharton, Criminal Law (12th ed), § 1604, p 1862.
This principle applies to this case because the Legislature has designated MCL 750.123; MSA 28.318 as the appropriate offense for, and established an express provision for the punishment of, an officer who receives a promise to pay money as consideration for failing to perform a duty. The receipt of this promise as consideration is a substantive offense under MCL 750.123; MSA 28.318. Plaintiff has not shown any reason to justify a conviction in this case under any provision other than MCL 750.123; MSA 28.318.
To convict defendant under the first count of the indictment, the jury must have found beyond a reasonable doubt that defendant entered into an agreement to omit his duty for reward. There is no inconsistency between this verdict and the verdict of not guilty under the second count. Although this agreement, the officer's receipt of a promise to pay money, is sufficient to support a conviction under MCL 750.123; MSA 28.318, the instructions given to the jury required a finding that defendant "received money, or any other valuable thing from Charles Williams" in order to convict him under the second count. Since it appears that defendant did not actually receive the money or any other valuable thing, there is no inconsistency between the verdicts.
For these reasons, the resolution of this case is controlled by the principles applied in United States v Dietrich, 126 F 664 (CCD Neb, 1904). In Dietrich, defendant was charged with conspiracy to commit an offense against the United States by agreeing with someone to receive a bribe for procuring an office of postmaster for that person. However, since it was an offense under 1878 US Rev Stat (2d ed), § 1781; 12 Stat 577 for a member of Congress to agree to receive a bribe and an offense for anyone to offer or agree to give a bribe, the Court concluded that the formation of this agreement was not punishable as a conspiracy because it was a substantive offense under § 1781.
The only significant difference between Dietrich and this case is that in Dietrich both conspirators were punishable for substantive offenses defined in one section of the United States Code while in this case, MCL 750.123; MSA 28.318 applies only to police officers and not to Williams. However, this difference is not sufficient to distinguish the logic of Dietrich. Williams' conduct in promising any gratuity whatever to Davis to influence his decision to omit his duty was unlawful under MCL 750.117; MSA 28.312. The Legislature's decision to create a separate, more specific section of the same Chapter of the Penal Code (XVII) to address the instances when a police officer receives a promise as consideration for omitting a duty is not sufficient to distinguish this case from the Dietrich principle. It does not justify the conclusion that Wharton's Rule is inapplicable because one of the parties necessary for the commission of the offense is not subject to prosecution under the same section for his activity. That would be a distinction without a difference.
MCL 750.117; MSA 28.312 provides:
"Any person who shall corruptly give, offer or promise to any public officer, agent, servant or employe, after the election or appointment of such public officer, agent, servant or employe and either before or after such public officer, agent, servant or employe shall have been qualified or shall take his seat, any gift, gratuity, money, property or other valuable thing, the intent or purpose of which is to influence the act, vote, opinion, decision or judgment of such public officer, agent, servant or employe, or his action on any matter, question, cause or proceeding, which may be pending or may by law be brought before him in his public capacity, or the purpose and intent of which is to influence any act or omission relating to any public duty of such officer, agent, servant or employe, shall be guilty of a felony."
It is true that when an officer, one who has sworn to uphold and enforce the law and is entrusted with the power and responsibility of so doing, agrees to omit a duty for reward, society is endangered — directly, by not bringing the offender to justice, and indirectly, by compromising everyone's respect for the law. Therefore the agreement to omit this duty for reward should not be immune from prosecution based on the principle incorporated into Wharton's Rule that no conspiracy prosecution should be permitted when the agreement no distinct danger to society. This conclusion is underlined by the Legislature's decision to punish exchanges of offers or promises under MCL 750.123; MSA 28.318 and MCL 750.117; MSA 28.312.
See Iannelli v United States, 420 U.S. 770, 782-783; 95 S Ct 1284; 43 L Ed 2d 616 (1975).
Nevertheless, because the Legislature has established express provisions punishing these activities, the prosecutor should not be permitted to circumvent those limitations by prosecuting the activities as a conspiracy.
Concert and a plurality of agents are indispensable elements of the substantive offense as set forth in the indictment. The receipt of a promise as consideration for omitting a duty necessarily involves more than one person. No additional danger was present from this agreement that is not necessarily present in any violation of MCL 750.123; MSA 28.318. Accordingly, Wharton's Rule is applicable in this case to prohibit the use of a conviction of conspiracy to obstruct justice as a method for circumventing the punishment specifically provided by the Legislature for this activity.
Affirmed.
FITZGERALD, J., concurred with COLEMAN, C.J.
LEVIN, J. (to affirm).
Rudy Davis, a Detroit police officer, was convicted of conspiracy to obstruct justice by failing to perform official duties in exchange for money.
The Court of Appeals reversed his conviction on the basis of Wharton's Rule, a principle of substantive criminal law that an agreement to commit an offense necessarily involving the cooperative action of two or more persons cannot be prosecuted as conspiracy, at least where the only parties to the agreement are those whose cooperative action is required to commit the substantive target offense which is the object of the conspiracy.
This Court granted leave to appeal to consider "whether the Court of Appeals erred in ruling that Wharton's Rule should be applied so as to preclude conviction of [Davis] of the charge of conspiracy to obstruct justice".
402 Mich. 805 (1977).
Because the applicability of Wharton's Rule turns upon the nature of the substantive offense that the conspiracy seeks to achieve, accurate identification of that target offense is essential. In most cases, particularly where the target offense constitutes a violation of statute, its proper designation and its individual or cooperative character will not be in doubt. But where, as here, the object of the charged conspiracy is said to be an offense at common law, its dimensions and nature must be discovered through examination of the common-law authorities that identified and defined the offense.
The people and Davis disagree on a threshold question: For purposes of Wharton's Rule analysis, what offense was Davis convicted of conspiring to accomplish? The people argue that the target offense was obstruction of justice, an offense which does not require joint activity and can be committed by one person. Davis argues that "obstruction of justice is not one, but many crimes under a general category", and that the described aim of this conspiracy — obstruction of justice by an officer's failing to perform official duties in exchange for the payment of money — requires the cooperative action of two persons and is neither more nor less than the statutory offense of officer omitting duty for reward.
The statute provides:
"Officer omitting duty for reward — Any sheriff, coroner, constable, peace officer, or any other officer authorized to serve process or arrest or apprehend offenders against criminal law who shall receive from a defendant or from any other person any money or other valuable thing or any service or promise to pay or give money or to perform or omit to perform any act as a consideration, reward or inducement, for omitting or delaying to arrest any defendant, or to carry him before a magistrate, or for delaying to take any person to prison; or for postponing the sale of any property under an execution, or for omitting or delaying to perform any duty pertaining to his office, shall be guilty of a misdemeanor, punishable by imprisonment in the county jail not more than 6 months or by fine of not more than 250 dollars: Provided, That if such defendant shall be charged with an offense against the criminal laws of the state of Michigan, any officer convicted under the provisions of this section, may, in the discretion of the court, be punished by any fine or by any term of imprisonment or both such fine and imprisonment, within the limits fixed by the statute which such defendant is charged with having violated." MCL 750.123; MSA 28.318.
My colleague would hold that the payment and receipt of money is not an element of obstruction of justice, that the offense is essentially an intended interference with the orderly administration of the law and thus a failure to perform an official duty relative to enforcing the criminal laws constitutes an obstruction of justice at common law without regard to whether money has been paid or received. Since payment and receipt of money is not an essential element, one person, the person who fails to perform his duty — Rudy Davis in this case — can be charged and convicted of obstruction of justice and so a plurality of actors is not necessary to commit the offense.
I would hold that Wharton's Rule precludes affirmance of Davis' conviction of the instant conspiracy charge.
The term "obstruction of justice" does not denote a single offense. Rather, it describes a category consisting of a large number of separate offenses having in common the same unlawful or corrupt purpose.
The obstruction of justice offense which was the target of the conspiracy for which Davis was indicted and convicted was obstruction of justice by failing to perform official duty in return for money. Although Davis might have been indicted for a target offense which did not involve the payment of money, he was not. His conviction cannot be affirmed as though he had been so indicted.
The target offense charged necessarily involves the cooperative action of two persons because a person cannot obstruct justice by failing to perform official duties in exchange for money unless a second person has paid money to the person who fails to perform his duty. Since two persons, the payer and the payee, are necessarily involved, the target obstruction of justice offense charged and of which Davis was convicted necessarily involves the cooperative action of two persons.
I
A Wayne County citizens' grand jury returned an indictment charging Davis and two other officers with one count of conspiracy to "obstruct the due course of justice by willfully and unlawfully failing to perform official duties in exchange for the payment of money", and one count of so obstructing justice. The conspiracy count named Charles Williams as an unindicted co-conspirator.
The indictment charged a conspiracy in violation of MCL 750.505; MSA 28.773 and MCL 750.157a; MSA 28.354(1).
MCL 750.505; MSA 28.773 reads:
"Any person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by a fine of not more than $10,000.00, or both in the discretion of the court."
MCL 750.157a; MSA 28.354(1) provides:
"Any person who conspires together with 1 or more persons to commit an offense prohibited by law, or to commit a legal act in an illegal manner is guilty of the crime of conspiracy * * *."
Under the statute, Davis is subject to imprisonment on the conspiracy count for a term "equal to that which could be imposed if he had been convicted of committing the crime he conspired to commit". MCL 750.157a(a); MSA 28.354(1)(a).
The substantive count of the indictment also charged a common-law offense in violation of MCL 750.505; MSA 28.773.
The defendants were bound over as charged, except that only Davis and one other officer, Craig Pollard, were bound over on the conspiracy count.
The defendants moved to dismiss or, in the alternative, to be bound over on the statutory offense of officer omitting duty for reward. The judge refused to quash or amend the charge of conspiracy to commit the obstruction of justice offense, but ordered the indictment amended to charge the statutory offense of officer omitting duty for reward rather than the substantive obstruction of justice offense initially described.
The judge was of the opinion that the inadequacy of the penalties for officer omitting duty for reward was such that it was "neither rational nor protective of the public interest", but as the statute has been construed by this Court, People v Romanski, 213 Mich. 636; 182 N.W. 121 (1921); People v McDonald, 216 Mich. 234; 184 N.W. 860 (1921), a police officer's receipt of a bribe in exchange for nonperformance of duty must be prosecuted under the statute.
He saw the conspiracy count differently:
"Two officers who conspire jointly, and with another, to subvert the legal processes and to take bribe money from an arrestee are committing themselves to something larger than an unlawful agreement to violate 750.123 [MCL 750.123; MSA 28.318, officer omitting duty for reward]. By their joint conduct they, as law enforcement officers, are conspiring to impede and obstruct those who seek justice in a court (literally and figuratively, the People of the State of Michigan) or those who have duties or powers of administering justice therein."
The jury's determination that Pollard was not a part of the conspiracy negates the objections raised by the trial judge to amending the conspiracy count of the indictment to charge a conspiracy to violate the officer omitting duty for reward statute.
At trial Williams testified that during a police raid on an apartment he had used as a base for selling narcotics Davis had removed about $200 from Williams' pocket and asked him what being released would be worth to him. Williams mentioned $1,000. After Davis and Pollard held a private conversation in the bathroom, Pollard and the third officer accompanied Williams to his brother's nearby house to pick up the money. Williams gave the money to Pollard, who indicated that he knew of "the deal with Davis". Williams was eventually let out at a corner gas station.
Pollard testified that Davis told him that Williams was turning informant. He and the other officer drove Williams around for several hours and eventually released him when it became clear that he could not provide useful information.
The jury acquitted all the defendants of the substantive offense of officer omitting duty for reward and Pollard of conspiracy. Davis alone was convicted of conspiracy; Williams was, by implication, his co-conspirator.
II
As originally formulated by Francis Wharton, whose name it bears, and as reformulated in the latest edition of his treatise, Wharton's Rule declares that an agreement to commit an offense which by its nature requires the cooperative action of two or more persons cannot be prosecuted as a conspiracy. The doctrine states a substantive limitation upon the reach of the law of conspiracy. Whether Wharton's Rule governs a particular conspiracy charge, therefore, depends upon whether concerted activity is a necessary component of the substantive target offense named as the object of the charged conspiracy.
"An agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission." 1 Anderson, Wharton's Criminal Law and Procedure (1957 ed), § 89, p 191.
I agree with my colleague that Wharton's Rule focuses upon "the nature of the [target] offense or * * * the elements of the crime rather than the particular factual setting of a case".
My colleague's discussion on the whole makes clear that, in speaking of "congruen[ce]" between the elements of the target offense and the elements of a conspiracy to commit that offense, he means only that the agreement charged as conspiracy must also inhere in the target offense. Iannelli v United States, 420 U.S. 770, 782; 95 S Ct 1284; 43 L Ed 2d 616 (1975), described the traditional Wharton's Rule offenses as "characterized by the general congruence of the agreement and the completed substantive offense". To require a congruence of elements between substantive offense and conspiracy would, however, establish a test inherently impossible to meet. The agreement between the participant will be inherent in the cooperative conduct constituting the substantive offense and thus not regarded as a distinct element of that offense, and proof of the substantive offense will require a showing of some overt behavior beyond that necessary to establish the conspiracy. See Iannelli, supra, p 785, fn 17.
A
It is not clear whether my colleague would hold that obstruction of justice is a generic offense and that any intended interference with the orderly administration of the law constitutes that offense, or whether he would hold that failure to perform an official duty relative to enforcing the criminal laws is a specific obstruction of justice offense, one of many at common law.
I am satisfied after limited research that there was no generic offense of obstruction of justice known to the common law. There were instead a large number of separate and specific offenses, some of which with the passage of time came to be collected under the rubric "Offences Against Public Justice". Blackstone catalogues 22 separate crimes under this heading, including perjury, embracery (jury tampering), bribery of a judge or other person concerned in the administration of justice, and negligence of public officers entrusted with the administration of justice.
Blackstone's compilation did not purport to be comprehensive, and it spoke of the "offences against public justice" as separate offenses, not as one offense:
"The species of crimes, which we have now before us * * *. I shall therefore confine myself principally to general definitions or descriptions of this great variety of offences, and to the punishments inflicted by law for each particular offence; * * *.
"The crimes and misdemeanors that more especially affect the commonwealth, may be divided into five species; viz. offences against public justice, against the public peace, against public trade, against the public health, and against the public police or economy: of each of which we will take a cursory view in their order.
"First, then, of offences against public justice: some of which are felonious, whose punishment may extend to death; others only misdemeanors. I shall begin with those that are most penal, and descend gradually to such as are of less malignity." 4 Blackstone, Commentaries, ch 10, pp 127-128 (emphasis changed).
There follows a separate discussion of each of the 22 offenses stated. Id., pp 128-142.
I found no case where a defendant was indicted for the offense of obstructing justice, although by 1800 one may observe indictments charging that certain specifically described acts, e.g., conspiring to dissuade a witness from attending judicial proceedings, were done with an intent "to obstruct the due course of justice". The element shared by the common-law offenses against public justice is this willful or corrupt intent, but it is the specific misconduct as well as the intended result, obstruction of justice, which comprise the elements of the charged obstruction offense.
See The King v Steventon, 2 East 362; 102 Eng Rep 407 (1802).
The early American text writers do not appear to have regarded obstruction of justice as a single offense. Separate discussion of obstruction of justice is rare compared to the treatment of more specific offenses such as bribery and malfeasance in office. The Cyclopedia of Law and Procedure, published in 1908, allots a separate heading to "Obstructing Justice", but the bulk of this entry is devoted to listing " offenses regarded as forms of obstructing justice".
The first 12 editions of Wharton's treatise on criminal law (1846 to 1932) do not mention "obstructing justice" as a separate substantive offense, although chapters are devoted to bribery and "extortion and misconduct in office". "Obstructing justice" first appears as a chapter heading in 3 Anderson, supra, ch 48, pp 623-643.
The various editions of Bishop's commentaries on criminal law include a brief chapter on "obstructing justice and government" which notes a handful of miscellaneous statutes and decisions, but the discussions of bribery and malfeasance in office are more extensive.
See, 2 Bishop, Criminal Law (2d ed, 1859), §§ 76-79, 825-829, 857-859, pp 61-64, 583-586, 609-610; 2 Bishop, Criminal Law (7th ed, 1882), §§ 85-89, 971-982, 1009-1013, pp 50-54, 551-556, 572-573.
2 Bishop's New Criminal Procedure (4th ed, 1896), ch 49, § 879, p 401, declares under the heading "Obstructing Justice and Government":
"1. Various Offences — named and unnamed, at common law and statutory, are within the subject of this chapter. But —
"2. Elsewhere in this Volume — we have considered Barratry, Bribery, Champerty and Maintenance, Counterfeiting the Coin, and Embracery; and further on, Perjury, Prison Breach, and the like, will come under review." (Emphasis supplied.)
Clark Marshall, Crimes (2d ed, 1905), pp 652-653, declares that "[a]ny act which injuriously affects, obstructs, or corrupts the administration of public justice, or the administration of the government, or which has a direct tendency to do so, is a misdemeanor at common law", and, after listing many of the same offenses enumerated by Blackstone, states: " These specific offenses will be considered in the following sections." (Emphasis supplied.)
29 Cyclopedia of Law and Procedure, Obstructing Justice, pp 1325-1339.
An overview of the early American cases suggests that the courts initially recognized that many distinct offenses could be described as "offenses against public justice" or "obstruction of justice", but later began to disregard the distinctness of the various crimes and to employ the generic term "obstruction of justice" as if it described one offense rather than many. This development may have been advanced by the dissemination of treatises which reproduced indictments including allegations that particular acts were done with the intent to obstruct justice and by the adoption in some jurisdictions of broadly worded criminal statutes punishing obstruction of justice.
In State v Sotherlen, SC Law Reports (Harper) 414 (1824), it is said, citing Blackstone:
" [T]he obstruction of the execution of lawful process is an offence against public justice of a very high and presumptuous nature, and, as such, is punishable by indictment. 4 [Blackstone, Commentaries] 128." (Emphasis supplied.)
State v Hailey, 2 SC Law Reports (Strobhart) 73, 76 (SC App, 1847), speaks more generally of the same common-law offense and, citing Blackstone, states: " Any obstruction of lawful process, whether it be by active means or the omission of a legal duty, is an indictable offence." (Emphasis supplied.)
In considering whether the seizure of a writ of attachment from a justice of the peace constituted an indictable offense at common law, the Vermont Supreme Court said in 1830: "In order to make the act done by this respondent, which is but a trespass, an offence against public justice, it must have been done with an intent to prevent the course of public justice." State v Lovett, 3 Vt. 110, 113-114 (1830).
In an 1836 case arising out of an indictment charging that the defendant had, "with intent to obstruct and impede the due course of justice", endeavored to "persuade and induce", "hinder and prevent" a witness from testifying at trial, the same court said:
"An attempt even to induce a witness by threats or promises or any other means to disregard his obligation to attend as a witness upon the trial of a public prosecution * * * is undoubtedly a high-handed offence, and as such should be severely punished." State v Keyes, 8 Vt. 57, 65 (1836).
One statement in the Keyes opinion tends to obscure the distinctions between the common-law offenses: "The essence of the offence is obstructing the due course of justice. This has always been held indictable, as a misdemeanor, at common law." Id. (Emphasis supplied.) A subsequent passage indicates, however, that the court intended no such implication:
"And the doing of any act tending to obstruct the due course of public justice, has always been held indictable as a misdemeanor at common law. Bribing, intimidating or persuading a witness not to testify, or not to attend court, are each among the readiest and the most corrupting of this class of misdemeanors." Id., p 67 (emphasis supplied).
By 1847, in affirming the conviction of a defendant who, according to the indictment, "contriving and intending to obstruct and impede the due course of justice, * * * did endeavor to dissuade, hinder and prevent [a witness] from appearing and testifying before the Grand Jury", the same court was speaking as if several types of obstructive conduct all constituted the same offense:
"To thwart or obstruct the due administration of justice by violence, bribery, threats, or other unlawful means, whether in preventing the attendance of witnesses, jurymen, or other officers of court is a high handed offence, which strikes at the vitals of judicial proceedings, and subjects to severe animadversion in every well ordered community." State v Carpenter, 20 Vt. 9, 12 (1847) (emphasis supplied).
An early Massachusetts decision, Commonwealth v Reynolds, 80 Mass. 87, 91; 74 Am Dec 665 (1859), arising from an indictment employing virtually the identical language used in Carpenter, may have helped to fuel the confusion. The opinion declares: "This indictment charges the defendant with an offence that is indictable at common law", and the headnotes consistently refer to an "indictment for dissuading, hindering and preventing a witness from appearing before a court". In rejecting an objection that the indictment failed to allege that any hindrance or obstruction of public justice actually occurred, the Court stated:
" [T]he offence is the obstruction of `the due course of justice.' This is what is alleged in the only two precedents which we have found; (The King v Steventon, 2 East [362]; and 2 [Chitty, Criminal Law], 235;) and what this indictment alleges to have been the defendant's intent and purpose. And the `due course of justice' means not only the due conviction and punishment, or the due acquittal and discharge, of an accused party, as justice may require; but it also means the due course of proceedings in the administration of justice. By obstructing those proceedings, public justice is obstructed." (Emphasis supplied.)
In State v Baller, 26 W. Va. 90, 93-94; 53 Am Rep 66 (1885), defendant was indicted for furnishing a second person with money to be used to induce a witness not to testify in a pending criminal case against the defendant "whereby the [defendant] attempted to obstruct and impede the administration of justice * * *". The court's statement of the question to be decided — "Was * * * an allegation [that the inducement was actually presented to the witness] necessary to complete the offence charged in the indictment, an attempt to obstruct and impede the administration of justice?" — may suggest that the court combined the several common-law offenses under the general heading of obstruction, but a subsequent passage indicates that the court meant only to say that the charged offense tended to obstruct justice: "An attempt to obstruct or impede the administration [of] justice by inducing a witness to absent himself from court is unquestionably a misdemeanor. It was a misdemeanor at common law. [Citing 1 Hawkins, Pleas of the Crown, ch 21, § 15, p 90, and Reynolds, Keyes and Carpenter, supra.]"
Chitty's Criminal Law, first published in England in 1816 and in this country in 1819, includes an extensive collection of forms of indictments. One chapter entitled "For Offenses Against Public Justice" arranges indictments under subheadings for the various crimes. Although Chitty's work, which recognized the existence of a multiplicity of common law offenses, was widely cited — Carpenter, supra, pp 12-13; Reynolds, supra, p 91; Baller, supra, p 92 — some courts and prosecutors may have mistaken the frequent references to an unlawful obstructive purpose found in the indictments for a description of the conduct constituting the offense. See Reynolds, supra.
1 Stat 112, § 22; 4 Stat 487; Code of W Va (2d ed, 1887), ch 147, § 30.
By the early part of this century, statements suggesting that obstruction of justice was a single generic offense at common law appear in the cases. In Commonwealth v Berry, 141 Ky. 477, 478-479; 133 S.W. 212 (1911), the indictment charged that Berry "did unlawfully obstruct the action of the grand jury" by "persuading, enticing and soliciting" a witness not to appear before the grand jury and to leave the county. The court spoke in passing as if obstruction of justice were a single offense:
"The obstruction of legal justice was a misdemeanor at common law, and the spiriting away of a witness to prevent him from testifying was always regarded as a phase of the offense" (emphasis supplied),
even though it cited cases stating that the "offense of spiriting away a witness is an indictable offense at common law" in support of its reasoning.
State v Keyes, supra; State v Horner, 15 Del. 504; 26 A 73, 41 A 139 (1893).
This Court's opinion in People v Boyd, 174 Mich. 321, 322-324; 140 N.W. 475 (1913), reveals no clear view of the matter. The indictment charged that Boyd, "with intent to obstruct and hinder the due course of justice, * * * wilfully and unlawfully dissuaded, hindered, bribed, hired, carried, and spirited away the said Nuel Craig, for the purpose of preventing him from appearing to testify as a witness * * * to the obstruction and hindrance of public justice". Although the opinion opens with the statement that Boyd was convicted of "the common-law offense of obstructing the administration of justice", it also recognizes the significance of the specific misconduct: "At the common law, to dissuade or prevent, or to attempt to dissuade or prevent, a witness from attending or testifying upon the trial of a cause is an indictable offense." A subsequent passage is similarly equivocal:
"There was evidence in the case tending to show that respondent had carried and spirited away this witness, for the purpose of preventing him from appearing and testifying. This charges a substantive offense; that respondent did this with intent to obstruct and hinder the due course of justice; therefore, when the acts charged were committed, the offense charged was complete."
Boyd cites, inter alia, State v Carpenter, 20 Vt. 9 (1847), and Berry, supra. Like those cases, Boyd fails to distinguish the specific misconduct indictable as a distinct offense at common law with the associated criminal intent — to obstruct the administration of justice.
Later decisions of this Court contain language which can be read as suggesting that obstruction of justice is a single common-law crime rather than a lately-evolved heading encompassing a number of distinct common-law offenses. See People v Tenerowicz, 266 Mich. 276, 282; 253 N.W. 296 (1934); People v Ormsby, 310 Mich. 291, 299-300; 17 N.W.2d 187 (1945). The indictment in Tenerowicz did not, however, in terms charge obstruction of justice. In neither case was it of any importance in deciding the issues there presented whether obstruction of justice is a single offense.
B
One can agree that specific obstructive misconduct was an indictable offense at common law without agreeing that all misconduct intended to obstruct the course of justice was prosecuted as the same offense — obstruction of justice. In my view, obstruction of justice, like theft, describes a category of distinct offenses covering a broad range of factual situations and presenting a variety of elements.
A common-law offense cannot now properly be declared on the basis of precedents reflecting misapprehension as to the classification of offenses at common law. None of the Michigan precedents just cited called upon this Court to decide whether obstruction of justice was one offense or many at common law. Those authorities' misperception of the nature of common-law "obstruction of justice" should not foreclose this Court's recognition of the multiplicity of common-law "offenses against public justice" and the consequent need to recognize for purposes of Wharton's Rule analysis the precise offense that Davis was indicted and convicted of conspiring to accomplish.
To state that the offense can be defined solely in terms of the object sought to be accomplished — obstruction of justice — may mean that the "Michigan common-law offense of obstruction of justice" is void for vagueness. If an officer or other person could be indicted and convicted for accomplishing an obstruction of justice without additional criteria to identify a punishable obstruction of justice, it would be left to prosecutors to charge and judges and juries to define case-by-case, without standards to guide them, what conduct constitutes obstruction of justice. Persons involved in the administration of justice would be inhibited in the exercise of discretion. They would not know what were the limits of permissible conduct and would run the risk that some jury or judge would conclude that their conduct obstructed justice.
"[I]f arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." Grayned v City of Rockford, 408 U.S. 104, 108-109; 92 S Ct 2294; 33 L Ed 2d 222 (1972).
A lawyer who filed a motion to suppress evidence followed by a motion to test the competency of his client to stand trial, followed by motions for discovery, might be convicted of obstruction of justice if in the meantime a witness were to die or other evidence were to be lost. Prosecutors, lest they be charged with obstructing justice by failing to perform their duty, might bring obstruction of justice charges and could disclaim responsibility for the decisions of judges and juries.
The foregoing scenario is fanciful because the law does not permit generalized charges of obstruction of justice. It is not enough that the conduct interferes with what a jury regards to be the orderly administration of justice and was done with the intention of achieving that result.
C
The failure of a police officer to make an arrest is not now an obstruction of justice unless done with a corrupt intent.
It has never been the law that conduct otherwise lawful is a crime simply because the result is an intended interference with the orderly administration of justice or that a public official's failure to perform a discretionary duty relative to enforcing the criminal law constitutes an obstruction of justice at common law without regard to whether the public official's failure to perform his duty was attended by good or bad faith.
There are, to be sure, cases demonstrating or stating that public officials could be indicted at common law for the failure to perform official duties relative to enforcing the criminal laws. But in every instance the duty was apparently a ministerial activity that the officer had no discretion to refrain from performing. Unless the performance of the duty is mandatory, so that the mere willful refusal to perform it is punishable, an officer's act or omission in relation to administering the laws is, according to the early text writers, criminal only if it is prompted by a corrupt motive or intent.
The King v Mills, 2 Show K B 181; 89 Eng Rep 877 (1682) (sheriff indicted for neglecting to execute a warrant for the apprehending of a constable who had refused to do his office); Crouther's Case, 1 Cro Eliz 654; 78 Eng Rep 893 (1598) (constable indicted for refusing to make hue and cry after notice of a burglary); Regina v Wyatt, 2 Lord Raym 1189; 92 Eng Rep 286 (1705) (constable indicted for failing to execute a warrant directed to him by a justice of the peace to levy a penalty upon one convicted of deer stealing); Rex v Pinney, 5 Car P 254; 172 Eng Rep 962 (1832) (magistrate charged by information with failing to read riot act to unlawful assembly); Rex v Kennett, 5 Car P 282; 172 Eng Rep 976 (1781) (same); The King v Antrobus, 2 Ad E 788; 111 Eng Rep 304 (1835) (sheriff charged with neglect of duty for failing to execute a condemned criminal).
"A justice of the peace is indictable for misbehaviour in his office, when he acts partially, or oppressively, or from malicious or corrupt motive. Wherever, on a justice or elsewhere, a public duty is imposed, a failure to perform it is indictable. Thus, in New York, it was held clearly indictable to discharge an offender, without taking sufficient sureties, with intent to pervert the course of justice. * * *
* * *
"All acts of malfeasance in office, if done with corrupt intent, are indictable.
* * *
"In an indictment against an officer of justice, for misbehaviour in office, it is necessary that the act imputed as misbehaviour be distinctly and substantially charged to have been done with corrupt, partial, malicious, or improper motives, and above all with knowledge that it was wrong, though there are no technical words indispensably required in which the charge of corruption, partiality, c; shall be made." Wharton, Criminal Law (2d ed), pp 732-733 (footnotes omitted).
"§ 972. Criminal Responsibility of Inferior Magistrates. — We have seen, that, according to the more common doctrine, justices of the peace and other inferior magistrates may be holden criminally for malfeasance, even in respect of their judicial conduct. Most of the cases in the English books concern the granting of —
"Criminal Information. — In this, the court acts on its discretion as well as the law; and, though it cannot grant an information where an indictment would not lie, it may refuse one. As foundation for an information, —
"Corruption. — The court requires evidence of something more than a mere mistake concerning their duty; it requires corruption. Corruption, also, is necessary to sustain an indictment. * * *
* * *
"§ 976. Ministerial distinguished from Judicial. — Inferior magistrates, like justices of the peace, have duties of a ministerial sort; and, in reason, and it is believed in authority, they may be punishable for malfeasance or non-feasance in respect of such a duty, where they would not be if it were judicial. * * *
* * *
"§ 980. Discretionary Functions. — If an officer's functions are discretionary, he cannot be punished for honestly exercising them by declining to do a thing." 2 Bishop, Criminal Law (7th ed, 1882), pp 551-555.
Thus, not every failure to perform an official duty can be an obstruction of justice. Prosecutors have a discretion in charging which they may exercise by charging a person with less than all of the possible offenses which the evidence might support and they may refuse to charge some offenders and, indeed, fail to enforce certain laws.
Miller, Prosecution: The Decision to Charge a Suspect with a Crime (Boston: Little, Brown Co, 1969), pp 154 et seq.
Similarly, at least today, police officers enjoy a measure of discretion in charging. Not every offender is taken to the station house, nor is every citation or traffic ticket, if issued at all, written for the full misconduct which the officer observed. And today an officer has discretion to refrain from arresting an offender. There could be a wide variety of reasons why even a narcotics dealer might not be arrested. It is commonplace to use small fish to catch bigger fish in the effort to net the larger dealers. Merely because a narcotics user or dealer was not arrested does not constitute an offense.
LaFave, Arrest: The Decision to Take a Suspect into Custody (Boston: Little, Brown Co, 1965), pp 63 et seq.; Davis, Administrative Law of the Seventies, § 4.00-1, pp 117-118; American Bar Association, Standards Relating to the Administration of Criminal Justice, The Urban Police Function, § 4.1, p 19; President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Police (Washington, DC: U S Government Printing Office, 1967), pp 21-25.
To assert that a police officer's simple failure to perform an official duty relative to enforcing the criminal laws is punishable today as a constable's failure to perform a duty was punishable at common law is to propound a harsh and antiquated rule without regard to the realities of the modern law enforcement and criminal justice system. A constable's duties were prescribed and ministerial and left no room for the exercise of discretion. The modern police officer may exercise good faith discretion in enforcement.
D
It was the willful failure to perform a nondiscretionary duty or the corrupt failure to perform a discretionary duty which was an offense at common law.
Davis was charged not merely with conspiring willfully to fail to perform duty but with conspiring corruptly to fail to perform duty. That was the offense charged, the offense Davis prepared to defend and the offense on which the jury was instructed.
If Davis had been charged with willful failure to perform duty the people would have been obliged to prove as an element that he had no discretion. The grand jury charged an agreement for a corrupt failure to perform duty and perforce the prosecutor was obliged to prove the element of corruption and, indeed the specific corruption charged in the indictment — the agreement for the payment of money.
The judge instructed the jury that it must find an agreement involving a bribe or reward:
"If you are satisfied beyond a reasonable doubt that either defendant Rudy Davis or defendant Craig Pollard, or both of them, conspired together or along with Charles Williams to unlawfully agree not to arrest Mr. Williams for a narcotics offense and to, instead, handle the matter outside of court by agreeing to accept a bribe or reward, then I instruct you that such an agreement constitutes a conspiracy to obstruct justice as it interferes with, impedes and obstructs the administration of the law and justice. But, you must find that there was such an unlawful agreement between two or more persons, and you must find this beyond a reasonable doubt. If you do, it is your duty to convict; if you do not, it is your duty to acquit." (Emphasis supplied.)
If, as my colleague contends, the gist of the conspiracy charge was intended interference with the orderly administration of law rather than receipt of reward, the judge improperly took from the jury the question whether Davis' conduct was intended to so interfere when he said "I instruct you that such an agreement constitutes a conspiracy to obstruct justice".
In sum, even if it would have been possible to charge Davis with mere neglect or failure to perform duty without regard to whether he acted corruptly (money was paid or received), he was not, as the Court of Appeals observed, so charged.
The Court of Appeals properly recognized that, where common-law obstruction of justice rather than a statutory offense is charged, it is necessary to examine the particular obstructive conduct involved:
"We look then instead to the language of the indictment and instructions, both of which alleged by necessary implication that a plurality of actors were involved.
"Thus, it is no answer to say that theoretically a single person can obstruct justice, when the controlling language charges that one alleged conspirator obstructed justice and another prompted the obstruction by the payment of money." People v Davis, unpublished per curiam opinion (Docket No. 21900, June 21, 1977).
III
Davis was charged with conspiring to commit a common-law obstruction of justice offense which involved payment of money and the corruption of a second actor, the alleged narcotics dealer, Williams.
When an offense in the nature of bribery is defined in terms that contemplate an exchange or agreement to exchange rather than unilateral solicitation, the offense requires the bilateral action of two or more persons.
"A person cannot agree with himself, receive from himself, or give to himself. The concurrent and several acts of two persons are necessary to the act of agreeing, receiving, or giving." United States v Dietrich. Dietrich and other cases have applied Wharton's Rule to preclude indictment or conviction for conspiracy to commit bribery offenses necessarily entailing such bilateral action. The same result should obtain in this case because the substantive offense which is the object of the charged conspiracy consists of an agreement and logically requires the action of two persons.
United States v Dietrich, 126 F 664 (CCD Neb, 1904).
Dietrich involved an agreement between an office-seeker and a congressman for payment of a bribe in exchange for exertion of influence. Agreeing to give and agreeing to receive a bribe were both made substantive offenses by the same statute. Comparable statutes defined the substantive offenses in People v Wettengel, 98 Colo. 193; 58 P.2d 279 (1935) (bribery of a district attorney), and State v Aircraft Supplies, Inc, 45 N.J. Super. 110; 131 A.2d 571 (1957) (commerical bribery of a corporate employee).
As soon as the bribe taker and payer agree to bring about the proscribed result their agreement necessarily implies a promise of reward and a corresponding promise of malfeasance or nonfeasance which together make out the bribery offense.
Davis was indicted for and convicted of agreeing with Williams not to arrest him in exchange for the payment of money. The object of the conspiracy required a plurality of actors — payer and payee — and Wharton's Rule applies.
IV
My colleague argues that Wharton's Rule does not preclude the conspiracy charge in this case because the rule applies only when "the immediate consequences of the crime rest on the parties themselves rather than on society at large" and the attendant agreement does not exacerbate the social dangers posed by the substantive offense.
Iannelli v United States, supra, pp 782-783.
"The classic Wharton's Rule offenses — adultery, incest, bigamy, duelling", are classic only because Wharton himself cited them as examples of the doctrine's application. Incest, bigamy and duelling may be ideal theoretical examples of offenses involving concert of action, but research discloses no instance of the rule's application to a charge of conspiracy to commit any of those offenses. Three courts have applied the rule in favor of defendants convicted of conspiracy to commit adultery. Courts have more often applied the rule where the substantive offense consisted of some form of bribery.
Id., p 782.
See, e.g., 2 Wharton, Criminal Law (12th ed), § 1604, p 1862, and 2 Wharton, Criminal Law (7th ed), § 2289, p 634.
Shannon v Commonwealth, 14 Pa. 226 (1850); Miles v State, 58 Ala. 390 (1877); and State v Law, 189 Iowa 910; 179 N.W. 145 (1920).
"After the Shannon * * * case, the principle established there was used most often with gambling offenses and with charges of bribery." Marcus, Prosecution and Defense of Criminal Conspiracy Cases (NY: Matthew Bender, 1978), § 3.02[2], p 3-5.
See United States v Dietrich, supra, and other cases cited in fn 45, infra.
No court has previously suggested, let alone held, that the application of Wharton's Rule to conspiracy to bribe depends on the nature of the duty sought to be influenced by the bribe or the gravity of the harm which may flow from the officer's failure to perform his duty.
To suggest that the rule's application is limited to a small group of "victimless crimes" which today are rarely prosecuted as either substantive offenses or conspiracies is in effect to abolish it. If the rule ought to be regarded as a historical curiosity which serves no rational purpose in modern criminal law, the decision to discard it should be made only after full consideration of the competing policies which favor its retention or rejection. If the rule remains a viable doctrine, it should be applied without flinching in cases involving bribery and other substantive offenses which the terms and policy of the rule comprehend.
Although Iannelli v United States, 420 U.S. 770, 782-785; 95 S Ct 1284; 43 L Ed 2d 616 (1975), stressed the differences between the large-scale gambling operations involved in that case and the traditional Wharton's Rule offenses, the Court ultimately concluded that the presumptive applicability of Wharton's Rule extends to any offense requiring concerted action unless a legislative judgment to the contrary can be discerned. Since the rule originated in part to prevent prosecutorial circumvention of legislative intent and since judgments as to whether and how certain conduct should be punished are traditionally left to the Legislature, legislative intent is an appropriate inquiry.
See United States v New York C H R R Co, 146 F 298 (CCSD NY, 1906); Vannata v United States, 289 F 424 (CA 2, 1923); State v McLaughlin, 132 Conn. 325; 44 A.2d 116 (1945); Developments in the Law, Criminal Conspiracy, 72 Harv L Rev 920, 955 (1959).
In the instant case, however, the target offense of the conspiracy is a common-law offense and therefore, as the Court of Appeals observed, no determination of legislative intent would be appropriate in deciding whether the conspiracy charged is barred by Wharton's Rule.
V A
Because most authorities regard Wharton's Rule as applicable only where the number of alleged conspirators does not exceed the minimum number logically necessary to complete the substantive offense, a request to the trial court to dismiss the conspiracy charge on the basis of Wharton's Rule would probably have been unsuccessful. The conspiracy prosecuted and submitted to the jury consisted of not two but three conspirators: Davis, co-defendant Pollard, and unindicted co-conspirator Williams. The verdict indicates that the jury concluded that Pollard's participation in the conspiracy had not been established, but that Davis had conspired with Williams.
1 Anderson, supra, p 193. See, also, LaFave Scott, Criminal Law, § 62, p 493; Perkins, Criminal Law (2d ed), p 621; Iannelli v United States, supra, p 782, fn 15; Thomas v United States, 156 F 897, 903-905 (CA 8, 1907); Old Monastery Co v United States, 147 F.2d 905, 907-908 (CA 4, 1945); State v Clemenson, 123 Iowa 524; 99 N.W. 139 (1904). But see United States v Sager, 49 F.2d 725 (CA 2, 1931); United States v Hagan, 27 F. Supp. 814 (WD Ky, 1939); People v Wettengel, supra.
The results reached in some of the bribery cases suggest that so long as both the giver and the taker are necessary to the substantive offense, it is immaterial how many parties participate on each "side" of the bilateral transaction. See State v Aircraft Supplies, Inc, supra; United States v Sager, supra; and People v Wettengel, supra.
Wharton's Rule should not be deemed inapplicable to a defendant convicted as one of two parties to a conspiracy to commit a two-person crime because additional parties to the conspiracy were charged and acquitted. One policy of the rule is to prevent imposition of greater punishment than the Legislature has provided for a substantive offense by the expedient of charging the agreement as conspiracy. To allow the rule to be circumvented by charging additional parties whose guilt cannot be established would violate this policy.
If the jury concludes that the combination was no broader than required to commit the substantive offense, it has determined that the circumstances which normally justify application of the rule prevail, and the rule should be applied.
B
The jury decided not only that Davis and Williams were the only conspirators but also that Davis had not committed the crime of officer omitting duty for reward. It is sometimes stated that Wharton's Rule applies only when the substantive offense has been committed. In my view, the better statements of the rule declare that preliminary agreements to commit crimes requiring concerted action are not indictable conspiracies so long as the agreement encompasses only the parties essential to the offense. If such an agreement dissolves before reaching that stage of preparation which constitutes an attempt, no crime has been committed.
See, e.g., Curtis v United States, 67 F.2d 943, 947 (CA 10, 1933) ("conspiracy to commit certain crimes will not lie against the participants in the consummated objective offense"); United States v Zeuli, 137 F.2d 845, 846 (CA 2, 1943) ("if a crime necessarily involves the mutual cooperation of two persons, and if they have in fact committed the crime, they may not be convicted of a conspiracy to commit it"); United States v Burke, 221 F 1014, 1015 (SD NY, 1915), rev'd on other grounds sub nom Salas v United States, 234 F 842 (CA 2, 1916); and United States v Grand Trunk R Co of Canada, 225 F 283, 286 (WD NY, 1915).
"In such a case there is no logical basis for conviction of other than the target offense, or an attempt, if the plan is carried that far." Perkins, supra, p 620.
See, also, Anno: Conspiracy to commit adultery or other offense which can only be committed by the concerted action of the parties to it, 11 ALR 196: "And if the offense is not committed, the agreement to commit it on the part of the immediate persons concerned is a mere intent, not punishable as a conspiracy." Anderson's statement of the rule also omits the limitation stated in the text.
The Legislature may, if it chooses, punish an agreement alone, as it has done in the officer omitting duty for reward statute, or it might even reject Wharton's Rule altogether. Absent such legislative activity, Wharton's Rule furnishes a substantive limitation on the law of conspiracy where an appropriate target offense is involved.
According to Iannelli, supra, p 782, Wharton's Rule is "a judicial presumption, to be applied in the absence of legislative intent to the contrary".
In the instant case, the charge required the jury to find that the officers had "received money, or any other valuable thing from Charles Williams" in order to convict them of the substantive offense. Under the statute, however, an agreement which violates the statute may be founded upon a mere promise of reward. See part VI-B, infra. The verdict indicates that the jury concluded that Davis and Williams agreed that Davis would not arrest Williams in exchange for consideration to be paid to Davis by Williams, but that none of the officers ever actually received anything.
Had the jury been correctly instructed regarding the scope of the officer omitting duty for reward statute, it may well have found that any such agreement between Davis and Williams established Davis' guilt of the substantive offense, which was complete when Davis indicated his acceptance of Williams' offer by directing some departure from the normal process of conveying arrestees to jail.
When the officer omitting duty for reward statute is correctly construed, it becomes apparent that it is impossible to have an inchoate agreement between one officer and one defendant to commit this offense which does not itself constitute an agreement proscribed by the statute. Based as it was on an erroneous charge on the requisites of the substantive offense, the jury's conclusion that no substantive crime had occurred is no bar to the application of Wharton's Rule.
VI
Davis argues that the conspiracy count should properly have charged an agreement to commit the statutory offense of officer omitting duty for reward.
The Court of Appeals did not reach the question whether a statutory offense supersedes the common-law offense. It is not necessary to decide that preliminary issue, which may be dispositive on remand, in order to decide whether the Court of Appeals erred in applying Wharton's Rule to Davis' conspiracy conviction. My colleague's opinion may, however, be read as deciding that the common-law offense has not been superseded by the statutory offense of officer omitting duty for reward. Although I would prefer to avoid adverting to Davis' alternative ground of appeal, not within the grant of leave to appeal, I am obliged to respond to my colleague's statements which may be read as inferentially rejecting that ground of appeal.
A
If the Legislature had not made specific provisions for them, the common-law offenses against public justice could still be charged as common-law crimes.
As part of the Revised Statutes of 1838 and the subsequent revision of 1846 the Legislature enacted a series of statutes proscribing perjury, bribery and other forms of conduct tending to obstruct justice under the chapter heading "Offences Against Public Justice". "It was evidently the purpose of the revisers of 1838 and 1846 to substitute statutory punishment for the common-law offenses as far as possible." Offenses covered by these statutes are no longer common-law offenses "for the punishment of which no provision is expressly made by any statute".
1838 Rev Stat, part IV, tit 1, ch 6; 1846 Rev Stat, ch 156.
People ex rel Wayne County Prosecutor v Recorder's Court Judge, 59 Mich. 529, 544; 26 N.W. 694 (1886).
My colleague agrees that these statutes, which include the present officer omitting duty for reward statute, were enacted in derogation of the common law. It is not contended that the prosecutor could charge these offenses as common-law obstruction of justice if he wished. Our disagreement concerning this somewhat collateral issue relates to the construction of the officer omitting duty for reward statute.
1838 Rev Stat, part IV, tit 1, ch 6, § 22; 1846 Rev Stat, ch 156, § 21. See fn 2, supra, for current text which is a revision of the Revised Statutes.
B
While the actual omission of duty is not a necessary element of the offense defined by the officer omitting duty for reward statute, the conduct is not taken out of the purview of the statute when the corrupt omission actually takes place. An officer who actually omits to perform his duty, an officer who only agrees to do so and, indeed, one who in derogation of the agreement performs his duty, all may be charged under the statute.
People v Bommarito, 11 Mich. App. 328; 161 N.W.2d 131 (1968).
The statutory scheme is comprehensive, covering all culpable neglects of duty and superseding all common-law offenses.
Another statute provides:
"When any duty is or shall be enjoined by law upon any public officer, or upon any person holding any public trust or employment, every wilful neglect to perform such duty, where no special provision shall have been made for the punishment of such delinquency, shall be deemed a misdemeanor, punishable by imprisonment in the county jail for not more than 1 year or by a fine of not more than 500 dollars." MCL 750.478; MSA 28.746, originally enacted as 1846 Rev Stat, ch 156, § 25.
To characterize the target offense as does my colleague is to implicate the question whether the foregoing statutory offense supersedes that common-law offense.
Although it has been said that the failure of a sheriff or undersheriff "to enforce the law or prevent a violation of which he is cognizant" constitutes a breach of the duty imposed by this statute, People v Bommarito, 33 Mich. App. 385, 388-389; 190 N.W.2d 359 (1971), the neglect involved in that case, an undersheriff's failure to see that traffic tickets and complaints handled (but not issued) by deputies under his supervision were processed and disposed of in accordance with the law, appears to be neglect of a nondiscretionary duty. Bommarito should not be viewed as authority for the proposition that a police officer's failure to make a specific arrest or other good faith discretionary decision not to enforce the laws to the fullest possible extent is proscribed by this statute.
The Legislature's failure to demand proof of an actual omission reflects a desire to punish the officer who is apprehended in the act of violating the statute as well as the officer whose corruption does not come to light until after the bargain is fulfilled. An officer's unlawful failure "to perform official duties in exchange for the payment of money" is simply a more developed instance of violation.
The central element of the offense of officer omitting duty for reward is the agreement between the officer and the reward giver. The statute, in terms, proscribes the officer's acceptance of a promise as well as his acceptance of any other consideration. An agreement can violate the statute although it remains wholly executory.
People v Bommarito, 11 Mich App, p 332, recognized this but, as one of the signers of that opinion, I acknowledge that it described the consideration which may cement the illegal bargain too narrowly, ignoring that the statute specifically provides that a promise would be adequate consideration:
"The gist of the offense and the wrong the statute punishes is receipt of money as consideration, reward, or inducement for omitting or delaying performance, whether such omission or delay occurs or not."
It is suggested, incorrectly in my opinion, that the statute does not require proof of a meeting of minds on whether the officer will actually omit his duty. In order to form an agreement, the minds of the parties must meet or apparently meet. Whether the officer harbors a secret intention not to fulfill his bargain is immaterial. An agreement may arise although one party harbors an unexpressed intention not to perform so long as the other party's understanding that a commitment has been made is justified.
Cf., Restatement 2d, Contracts (Tentative Draft No 1, 1964), § 3, which defines an agreement as "a manifestation of mutual assent on the part of two or more persons". "Manifestation of mutual assent to an exchange requires that each party either make a promise or begin or render a performance." Id., § 20. "A promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made." Id., § 2(1).
C
Reference is made to a "`well-defined' exception" which declares Wharton's Rule inoperative "when fewer than all the parties logically necessary for the commission of the substantive offense are indictable for it". It is asserted that Davis could have been convicted of conspiracy even if the target offense charged were officer omitting duty for reward because his co-conspirator Williams, who was not a police officer, could not be convicted of that offense.
Developments in the Law, fn 28 supra, pp 954, 956.
The notion that the rule does not apply if the law defining the substantive offense fails to specify punishment for one of the necessary participants has been criticized by numerous commentators. If a substantive offense defined by statute necessarily contemplates the participation of two or more persons but omits to punish every participant's conduct, it is more reasonable to assume that the Legislature intended to immunize that conduct from prosecution than to assume that it intended all participants, whether or not liable to punishment for the substantive offense, to be exposed to conspiracy prosecutions for their part in an agreement inherent in the substantive offense.
"Where a statute makes only one-half of a transaction punishable, the legislature has immunized that substantive action which is unpunishable, and without additional criminal combination exclusive of the sanctioned substantive action, it flies in the face of the legislative intent to render that conduct punishable as conspiracy." Recent Cases, Criminal Law — Bookmaking — Conspiracy, 4 Rutgers L Rev 724, 725 (1950).
See also Case Notes, Criminal Law — Conspiracy — Wharton's Rule and Exceptions, 23 So Cal L Rev 262, 264 (1950); Recent Cases, Conspiracy — Criminal Liability — Conviction for Conspiracy to Commit Offense Requiring Concerted Action Upheld Where Only One Conspirator Could Be Guilty of Substantive Crime, 62 Harv L Rev 1226, 1227 (1949); Recent Cases, Criminal Law, 98 U Pa L Rev 251, 255 (1949); and Recent Decisions, Criminal Conspiracy — Receiving Stolen Property — Identity of Conspiracy and Substantive Crime, 13 Fordham L Rev 98, 102-103 (1944).
Vannata v United States, supra, p 428, one of the cases usually cited as establishing this exception, offers no explanation why "for purposes of prosecution, the sole substantive criminal can be joined with those who knowingly assist him in crime, in a conspiracy charge". Indeed, the Court admits that its holding countenances "an underhand way of doing something the Legislature never thought of".
But even if the validity of this asserted exception is conceded, the concerns it expresses should not arise where the Legislature has provided in some manner punishment for all the participants in the substantive offense. It appears that Williams could have been charged with a related statutory offense.
See LaFave and Scott's statement of the rationale for this exception:
"A somewhat different limitation on the Wharton rule is this: if the law defining the substantive offense does not specify any punishment for one of the necessary participants, then it is no bar to a conspiracy conviction that only the essential participants were involved. For example, if A agrees with B to give him an illegal rebate, but the applicable statute imposes a penalty only on the giver of the rebate, then A and B may be convicted of conspiracy. Or, if C agrees to make an illegal sale of liquor to D, but the statute penalizes only the seller, C and D are guilty of conspiracy.
"By taking into account [this limitation and the principle that the rule applies only where no nonessential third party is involved], the apparent rationale of the Wharton rule may be seen more clearly. The notion seems to be that if all the necessary participants would be subject to punishment for the completed substantive crime and if only the necessary participants are parties to the agreement, then the agreement presents no danger beyond that inherent in the crime planned. Put somewhat differently, under the circumstances just stated it may be said that the legislature took into account the dangers of the combination in setting the penalties for the substantive offense, so that it would be inconsistent to permit a separate punishment for the same combination on a conspiracy theory." LaFave Scott, Criminal Law, § 62, p 493.
But where the statute defining the substantive offense makes both agreeing to give and agreeing to receive a bribe or illegal rebate a crime, Wharton's Rule applies. See United States v Dietrich, 126 F 664 (CCD Neb, 1904); United States v New York C H R R Co, 146 F 298 (CCSD NY, 1906); People v Wettengel, 98 Colo. 193; 58 P.2d 279 (1935); and State v Aircraft Supplies, Inc, 45 N.J. Super. 110; 131 A.2d 571 (1957).
Although Williams could not have been convicted of the statutory offense of officer omitting duty for reward, he could have been prosecuted under another section of the Penal Code. It should make no difference that the Legislature provided separate punishment for the parties to the agreement, as long as each party is punishable.
While no Michigan statute specifically punishes the person who offers the reward and thereby enters into the agreement with the police officer who is punishable under MCL 750.123; MSA 28.318, Williams' conduct appears to violate one or more neighboring sections of the Penal Code.
As the Chief Justice's opinion notes, MCL 750.117; MSA 28.312 makes it a felony to "corruptly give, offer or promise to any public officer, agent, servant or employe, * * * any gift, gratuity, money, property or other valuable thing, * * * the purpose and intent of which is to influence any act or omission relating to any public duty of such officer, agent, servant or employe".
This statute appears broad enough to reach efforts to bribe all public employees including police officers. People v Karoll, 315 Mich. 423; 24 N.W.2d 167 (1946), upheld the conviction under this section of one who had paid money to an assistant county purchasing agent to obtain orders. The defendant in People v Patterson, 58 Mich. App. 727; 228 N.W.2d 804 (1975), was convicted under this section of bribing two police officers, but the question whether the prosecution was founded upon the appropriate statute was not raised on appeal.
See, also, the following cases upholding convictions of public employees for receiving bribes under another broadly worded statute, MCL 750.125; MSA 28.320, which punishes both the giving and receiving of bribes intended to affect an agent's, employee's or servant's actions in relation to his principal's, employer's or master's business: People v Nankervis, 330 Mich. 17, 23; 46 N.W.2d 592 (1951) (traffic court employee); People v Leve, 309 Mich. 557; 16 N.W.2d 72 (1944) (director of county bureau supervising hospitalization of indigents); People v Freedland, 308 Mich. 449; 14 N.W.2d 62 (1944) (accounts examiner in state sales tax division).
While we need not decide today under which of these statutes Williams might have been prosecuted had he not received immunity for his testimony, it is clear that the Legislature has not permitted the misconduct of the person who offers the reward to the police officer to go unpunished. No gap in criminal liability justifies suspending Wharton's Rule to allow conspiracy prosecution of the parties to the charged agreement.
Be that as it may, just as it was a common-law offense to obstruct justice by failing to perform an official duty for reward, so, too, it was such an offense to pay the reward. Davis was convicted of conspiring with Williams not to perform official duties in exchange for the payment of money; the conduct of either constituted bribery at common law. Hence Williams as well as Davis could have been charged with complementary obstruction of justice offenses and the exception to Wharton's Rule where one of the conspirators may not be charged is inapplicable.
Most authorities agree that both giving and taking a bribe in exchange for official action are offenses at common law. See 2 Hawkins, Pleas of the Crown, ch 67, § 2; 2 Blackstone (Cooley ed, 1872), p 138, fn 24; 1 Russell, Crimes Misdemeanors (Davis ed, 1824), pp 239-240; State v Ellis, 33 N.J.L. 102; 97 Am Dec 707 (1868) ("The offer of anything of value in corrupt payment or reward for any official act, legislative, executive, or judicial, to be done, is an indictable offense at the common law.")
Compare United States v Dietrich and other cases cited in fn 45, supra.
VII
Wharton's Rule is a doctrine of substantive criminal law which, when applicable, forecloses a conspiracy charge where the agreement between the essential participants is already implicit in the definition of the target offense. Because the target offense here requires a plurality of actors, the Court of Appeals properly applied Wharton's Rule in reversing Davis' conviction.
I would affirm the decision of the Court of Appeals.