Appeal from the Criminal Court of Cook County; the Hon.
HERBERT C. PASCHEN, Judge, presiding. Affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. In a bench trial, defendant, Alvin T. Smith, a Chicago police officer, was found guilty of the offense of "official misconduct" (Ill. Rev Stats 1963, c 38, § 33-3) on evidence which showed that he had solicited $50 from Paul Browning for the dismissal of a criminal charge against Browning. Defendant was admitted to probation for a term of three years, with the first six months to be served in the House of Correction. He appeals from the conviction and from the refusal of the court to modify the probation order.
Defendant contends (1) the indictment did not adequately allege and "the State has failed to prove the defendant guilty of `official misconduct' under Illinois law. Therefore, the trial court should have directed a verdict for the defendant"; (2) "the verdict of the trial court is against the manifest weight of the evidence"; and (3) "the trial court erred in refusing to reduce defendant's sentence."
On November 5, 1961, defendant, Alvin T. Smith, arrested Paul Browning and charged him with petty theft and possession of stolen automobile license plates. On November 6, 1961, after a short hearing of the charges against Browning, the court, on motion of the State, struck the complaint, with leave to reinstate, in order that Smith might further investigate the charges.
On the evening of November 6, 1961, defendant Smith appeared at the apartment of Browning. After a conversation between Smith, Browning and Browning's wife, two police officers, who had been concealed in the apartment, appeared and arrested Smith. He was indicted for "bribery" and "official misconduct."
The "official misconduct" indictment charged that "Alvin T. Smith committed the offense of official misconduct, in that he, a police officer of the City of Chicago, acting in his official capacity, and with the intent to obtain a personal advantage for himself, performed an act which he knows was not authorized by law, to-wit: the said Alvin T. Smith solicited a fee of $50 from Paul Browning to have the charge of petty theft and possession of fictitious license plates placed against said Paul Browning by said Alvin T. Smith on November 5, 1963, dismissed from court when said charge came up for hearing on November 6, 1963, contrary to the statute."
At the trial of the charges against defendant Smith, Browning and three police officers testified on behalf of the State. Browning testified that on the morning of November 6, while outside of the courtroom, Smith said, "I want to be precise, I can fix your case for fifty bucks . . . Is it worth that?" and Browning replied, "Yes, it's worth that, but, gee, I think I have all the information that I need not to go to jail," and Smith said, "Okay, I'll talk to you later," and when the case was called, it was dismissed; after Browning left the courtroom, Smith said, "I fixed up your case . . . I kept the complaining witness out of court"; as Browning said he did not have the money with him, arrangements were made for Smith to get the money later at Browning's home; later that day, Browning went to a police station and told a sergeant what happened, and that Smith was to pick up the money at five o'clock; Officer Walsh accompanied Browning home, where Browning was given a note left by Smith, with a telephone number on it; later Browning called the number and talked to defendant Smith, who said that he would be there about eight o'clock.
Browning further testified that when Smith arrived at Browning's basement apartment at about 8:15 p.m., Mrs. Browning was present, and two police officers were concealed, one in a washroom and the other in a bedroom. The doors to both of these rooms were open as Browning talked with defendant in the kitchen, "two or three feet" away. "I told him [defendant Smith] to tell my wife why he was getting this money and to explain to her that I didn't offer him any money. He told me, he say, `Well, I fixed up Paul's case and kept him from getting two or three years.' I asked him, `What would you get out of this?' and he said, `I had to pay the complaining witness, I kept him out of court, and I would get a little something.' . . . I told him, I said, `Well, all I could get was $20. . . . I could write you a check for the remaining $30.' He said, `No, I can't be bothered with no check.' So, as I was passing him the . . . two $10 bills, it was marked money, and as he was reaching, the lieutenant [Lieutenant Siedlecki] approached the kitchen. . . . he identified himself and told Officer Smith to identify himself. . . . The two $10 bills, well, I laid them on the table and I told him, `This is all I could get.' He never did take the money. . . ."
Lieutenant Charles C. Siedlecki, in charge of the Complaint Division for the Internal Investigation Division of the Chicago Police Department, testified that he heard a conversation in the Browning apartment between Browning and "a stranger," later identified as Smith, in which Smith said, "I had to help you a lot in court today, I had to keep the owner of the license plates away from court and I had to pay the State's Attorney. . . . Otherwise you may have gotten one to two years. . . . I spent some of my own money on this case, the original deal for $50 still stands," and Browning said, "Well, I've got $20 and I can write you a check for the $30," and Smith said, "I don't want to be fooling around with a check." When he heard Browning say, "Well, take this $20 anyway," "I stepped out and confronted the gentleman I now know to be Officer Alvin Smith. . . . [On the way to the station] I asked Officer Smith how much money was involved, and he told me it was $50 involved. I asked him, `What did you want the money for?' and he said, `I was doing it as a favor' I'm not sure if he used the word `favor' but he said he was doing it for somebody and he intimated it was somebody around the court, but he wouldn't elaborate."
Officer James Walsh, also assigned to the Internal Investigation Division, testified that he was present in the Browning apartment on November 6 and heard the conversation that took place between Browning and Smith. He corroborated in detail the testimony of Browning and Lieutenant Siedlecki.
Officer Ralph Fivelson also testified for the State that while they were driving defendant Smith to police headquarters, he heard the Lieutenant say to the defendant, "Why did you want the $50," and the defendant "mentioned that he wanted it for the for some people in the court."
At the close of the State's case, the court made a finding of not guilty on the charge of "bribery," and the trial proceeded on the charge of "official misconduct."
Defendant testified and, in substance, denied the testimony of the witnesses for the State. He stated he went to the Browning home because Browning had informed him he would show Smith where he bought the car which bore the stolen license plates. He further said Browning offered him money, but "I told him he can't pay me nothing to do my duty, and then I turned around and started to walk out. . . ."
Initially, we consider defendant's contention that the State has failed to prove him guilty of "official misconduct." In pertinent part, the statute provides:
"A public officer or employee commits misconduct when, in his official capacity, he commits ...