#### STATE v. WYLIE B. NOLAND.

(Filed 8 March, 1933.)

1. Criminal Law D e — Venue of prosecution for offering a bribe to a juror is the county in which the offer is communicated to the juror.

The crime of offering a bribe to a juror, C. S., 4373, is committed in the county where the offer is communicated to the juror, and where the defendant is charged with having offered such bribe through the kinsmen and wife of the juror who were residents of a county other than the one in which the juror was serving after being selected from a special venire, the proper venue is the county in which the juror was serving and in which the defendant’s offer was communicated to him by his wife, although defendant communicated with the juror’s kinsmen and wife in the county of their residence.

2. Bribery B a — In prosecution under C. S., 4373, it need not be alleged that juror received any fee or compensation.

In a prosecution under O. S., 4373 for offering a bribe to a juror it is not necessary that the indictment should charge that the juror received any fee or other compensation, the statutes making a distinction between bribery and an offer to bribe and both o'ffenses being included in the common-law definition of bribery.

3. Same — Indictment held to sufficiently charge corrupt i>urpose in offering bribe to juror.

An indictment charging that defendant “unlawfully, wilfully, and feloniously offered a bribe to an acting juror with intent to influence the verdict and procure an acquittal” is held to sufficiently charge the corrupt purpose of such offer.

*3304. Indictment O a—

If a bill of indictment is sufficient to enable the court to proceed to judgment, the prosecution should not be stayed for any informality or refinement. O. S., 4623.

5. Criminal Law G r — Action of court in allowing solicitor to refresh witness’s mind hy reference to witness’s affidavit held not error.

Where a witness has made an affidavit concerning certain facts, and on the trial his answers in respect to such facts are evasive and hesitant an exception to the court’s action in allowing the solicitor to call the witness’s attention to the affidavit for the purpose of refreshing his memory will not be sustained.

6. Same—

Testimony of witness in reference to the receipt of a letter written him by juror’s wife held competent as corroborative of her testimony in prosecution of defendant for offering bribe to the juror.

7. Trial B b—

The order in which the evidence should be introduced is a matter for the trial court.

8. Bribery B h: Criminal Law G r — Testimony held competent to show indirect communication of offer to bribe and as corroborating evidence.

Where there is evidence that the defendant approached the father of a juror relative to offering the juror a bribe, and asked him to talk over the proposition with the juror’s wife, testimony of the juror’s wife to this effect is competent as tending to corroborate her father-in-law’s testimony and as tending to show defendant’s indirect communication of the bribe to the juror, and an affidavit made by the witness is also competent for the purpose of corroborating her testimony although made in another proceeding.

9. Criminal Law I g — Charge will not be held for error for immaterial matters.

Where the charge to the jury presents the vital issue in the case in substantial compliance with C. S., 664, it will not be held for reversible error on exception to immaterial matters.

10. Criminal Law I k — Court may refuse to accept incomi>lete verdict and order jury to l'econsider.

Where the verdict of the jury is incomplete, insensible or repugnant the trial court may, before the verdict has been accepted by him, instruct the jury to reconsider, and where in a prosecution for offering a bribe to a juror the jury returns a verdict of “guilty of attempt,” and the trial court gives additional instructions and the jury then brings in a verdict of “guilty of offering a bribe” to a juror, an exception to the trial court’s refusal to accept the first verdict will not be sustained, and sentence on the second verdict will be upheld.

11. Bribery A b — An offer to bribe is the same as an attempt to bribe.

An “offer to bribe” is the same as an “attempt to bribe,” and in a prosecution for offering a bribe to a juror, G. S., 4373, an instruction directing the jury to reconsider after it had returned an incomplete *331verdict will not be beld for error for failure to instruct tbe jury as to an attempt to commit tbe crime charged, especially where tbe question is not raised until tbe first verdict bad been returned.

Appeal by defendant from *Clement, J.,*at August Term, 1932, of BuNCOmbe.

No error.

Tbe defendant was indicted and convicted of offering a bribe to Hurst Justice, a qualified juror serving- in a criminal action entitled “State *v. W.*B. Davis *et al.”*tried at a Special Term of tbe Superior Court of Buncombe County, wbicb was convened in July, 1931. From tbe judgment pronounced be appealed to tbe Supreme Court upon assigned error.

*Attorney-General Brummiit, Assistant Attorneys-General Seawell and Siler and Gertrude M. Upchurch for the State.*

*Marcus Erwin and Grover Q. Davis for defendant. . \*

Adavis, J.

Hurst Justice, tbe juror, H. L. Justice bis father, and *W.*B. Noland tbe defendant, are residents of Haywood County. Tbe State’s evidence tends to show that while tbe criminal action against Davis and bis codefendants was being tried in Asheville, tbe defendant Noland went to tbe borne of H. L. Justice and told him that if be could ascertain bow Hurst Justice stood with respect to tbe trial and if be stood for acquittal, H. L. Justice and tbe defendant could each get $500 for learning bow tbe juror stood and tbe juror himself could get $1,000 “for standing that way”; also that tbe defendant said, “I am not expecting to bribe him; if be is against us I don’t want to change him; but if be is for us I would love to get tbe money.” There is evidence that be requested H. L. Justice to communicate tbe imoposition to the juror’s wife; that tbe defendant with H. L. Justice and tbe latter’s wife went to tbe borne of tbe juror who was in Asheville; and that IT. L. Justice informed bis daughter-in-law of tbe offer after tbe defendant bad gone on to tbe dwelling of Brownlow Snider, another member of tbe jury. It is in evidence, also, that tbe juror’s wife went to Asheville during tbe trial and told her husband all that tbe defendant bad said. It is obvious, then, that whatever message tbe juror received from tbe defendant through these intermediaries was communicated to him in Buncombe County. There, if anywhere, tbe corrupt offer was made to him and there tbe proper venue was laid. “In tbe prosecution of all offenses it shall be deemed and taken as true that tbe offense was committed in tbe county in wbicb by tbe indictment it is alleged to have taken place unless tbe defendant shall deny tbe same by plea in abatement.” C. S., 4606; *S. v. Outerbridge,*82 N. C., 618; *S. v. Lytle,*117 N. C., 799; *S. v. Long,*143 N. C., 671; *S. v. Oliver,*186 N. C., 329; *S. v. Mitchell,**332202 N. C., 439. The defendant was, therefore, not entitled to a change of venue and his motion for removal of the case to Haywood County was properly denied.

The defendant demurred to the first count in the indictment for the alleged reason that it does not state facts sufficient to constitute the crime of bribing a juror as defined in C. S., 4375, and does not charge that the juror received any fee or other compensation as a reward for his misconduct or that he acted corruptly.

Bribery, as defined by Blackstone, was committed when a judge or other person concerned in the administration of justice took any undue reward to influence his behavior in his office. 4 Black., 139. Russell, in his work on Crimes, extends the definition to all cases where any undue reward is received by or offered to any person whose ordinary business relates to the administration of public justice in order to influence his behavior in office and incline him to disregard the known rules of honesty and integrity. 2 Russell, Crimes, 122. Wharton says, “Bribery is corruptly tendering or receiving a price for official action.” 3 Grim. Law (12 ed.), sec. 2234.

With respect to juries our statute (C. S., 4375) provides in part that if any juror either directly or indirectly shall take anything from any defendant in a State prosecution or from any other person to give his verdict, the juror receiving and the person giving the reward shall be guilty of a felony; and another statute declares that any person who offers a bribe, whether it be accepted or not, shall be guilty of a like crime. C. S., 4373. The several statutes pertaining to the subject recognize the distinction between bribery and an offer to bribe. C. S., 4372, *et seq.*

Under the earlier indictments the offer or tender of a bribe was usually characterized as “corrupt,” but the law prescribes no exclusive formula for stating the corrupt intent, no technical words in which the charge of corruption shall be made. Wharton’s Criminal Law, (12 ed.), sec. 1903. If the bill is sufficient to enable the court to proceed to judgment, the prosecution should not be stayed for any informality or refinement. C. S., 4623. Assuming, however, that the indictment must set out the evil intent, we observe in the first count an averment that the defendant unlawfully, wilfully, and feloniously offered a bribe to an acting juror with intent to influence the verdict and to procure the acquittal of the defendants. This is a sufficient charge of the corrupt purpose.

The defendant’s objection to the examination of H. L. Justice, a witness for the State, is without substantial merit. The witness had made an affidavit as to facts which were material and upon his examination in this case was hesitant and evasive in his answers to questions asked him by the solicitor. The court gave the prosecuting officer leave to *333call tlie attention of the witness directly to the contents of his affidavit. The examination was not intended as an impeachment of the witness but as an effort to refresh his memory by reference to statements he had previously made and to prevent confusion or equivocation in his testimony. The trial court in the exercise of its discretion may under such circumstances permit a party to propound leading questions to his own witness. *S. v. Buck,*191 N. C., 528; *Howell v. Solomon,*167 N. C., 588; *S. v. Cobb,*164 N. C., 419.

The testimony of this witness in reference to the receipt of a letter written him by the juror’s wife corroborated her testimony and was competent at least for this purpose. *S. v. Brodie,*190 N. C., 554. The order in which the evidence should be introduced was a matter for the court. *Steel Co. v. Copeland,*159 N. C., 556. Mrs. Justice’s testimony was admissible likewise, not only in corroboration of H. L. Justice, but as evidence of an indirect communication of the defendant to the juror, who was her husband. The exception rests upon the contention that she had not been instructed by the defendant to inform her husband of the offer. This is a misapprehension. There is evidence that the defendant requested H. L. Justice “to talk over the proposition” with Mrs. Justice; that he did so, and asked her to tell her husband of “the entire proposition.” The defendant was “to come back for the affiant”— obviously to learn from H. L. Justice the result of the interview between the juror and his wife. This in any event is a permissible inference. Mrs. Justice communicated the offer to her husband and made an affidavit to this effect. The affidavit was admitted in corroboration of her testimony and was competent for this purpose although made in another proceeding. Her statements in the two cases correspond, each strengthening and confirming the other. It is in evidence or is deducible from the evidence that the defendant intended to see the juror in person when he went to the latter’s home and failing in his endeavor sought to communicate the offer through the agency of others and finally succeeded in his undertaking. In these circumstances assignments 15, 16, 17, and 18 must be overruled.

We find no error in the judge’s charge. Several of the assignments relate to the contentions of the State, some to the court’s use of the word “intended,” and others to the “criminal intent” of the defendant; but the vital issue joined upon the indictment was presented to the jury under instructions which are in substantial compliance with the provisions of C. S., 564, and are free from error.

After considering the evidence and the charge, the jury returned into the courtroom and announced as their verdict “guilty of attempt.” The court then told the jury that the defendant was not on trial for an attempt to commit a crime, and gave this additional instruction: “The offense charged is that he is guilty of offering a bribe; that does not *334mean be carried tbe bribe bimself and offered it to tbe person be attempted to bribe, but be could do it bimself or do it through another.” Tbe jury retired and afterwards returned as tbeir verdict, “Guilty of offering a bribe to tbe juror Hurst Justice.” Tbe defendant excepted to the court’s refusal to accept tbe return first announced and to tbe further instruction given tbe jury.

Tbe phrase “Guilty of attempt” was not a complete verdict. Tbe words do not necessarily import an attempt to commit a crime. Furthermore, to be complete a verdict must be accepted by tbe court for record. "When an informal, insensible, or repugnant verdict is returned tbe jury may be directed to retire, reconsider tbe matter, and bring in a verdict which is proper in form. *S. v. Hudson,*74 N. C., 246; *S. v. Whitaker,*89 N. C., 473; *S. v. Godwin,*138 N. C., 582; *S. v. Snipes,*135 N. C., 743. This is tbe course which tbe court pursued.

Tbe defendant excepted to tbe last instruction for tbe reason that tbe court did not charge tbe jury in reference to tbe question of an attempt to commit tbe crime charged. An attempt to bribe and an offer to bribe are analogous. 'Wharton says, “Defining bribery to be tbe corruptly tendering or receiving a price for official action, it is an offense at common law and so is an attempt to bribe even though tbe offense be not consummated; and tbe offense is complete when an offer is made.” 3 Grim. Law (12 ed.), sec. 2234. Bishop remarks that for tbe attempt to bribe it is not enough simply to allege that tbe defendant did attempt to commit bribery, and that tbe better common-law form suggests tbe use of such words as “offer,” “solicit” and tbe like. 3 New Grim. Procedure (2 ed.), sec. 126(2). In 2 Cyc. Grim. Law, sec. 1211, it is said: An “attempt to bribe” is tbe same as an “offer to bribe,” and that an attempt to offer a bribe is an attempt to bribe and not an attempt at an attempt. *Johnson v. State,*92 N. S. W., 257; *People v. Bennett,*182 N. Y. App. Div., 871. Tbe exception is to tbe refusal of the court to charge that tbe defendant could be convicted of an attempt to perpetrate an attempt.

To prevent confusion tbe trial judge informed tbe jury that tbe indictment was drafted in tbe words of tbe statute (0. S., 4373) charging an “offer” and not an “attempt” to bribe tbe juror. Tbe ease was tried upon tbe theory of an offer, and that of “an attempt at an attempt” seems to have been raised after tbe first purported verdict bad been returned.

We'find no error in tbe trial. Tbe offense of which tbe defendant is convicted, while of remarkable rarity in this State, calls for stern condemnation. There is no room for palliation. It tends to corruption, to tbe perversion of justice, to tbe paralysis of tbe courts. As remarked by Blackstone, “It is calculated for tbe genius of despotic countries where tbe true principles of government are never understood.”

No error.