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People v. Mostert

JANUARY 9, 1976.




APPEAL from the Circuit Court of McDonough County; the Hon. SCOTT I. KLUKOS, Judge, presiding.


Defendant, Michael Mostert, was convicted of bribery following a jury trial in the Circuit Court of McDonough County. He was sentenced to pay a fine of $300, and placed on two years' probation, conditioned on first serving 30 days in the county jail. The issues presented in this appeal are (1) whether the bribery statute is unconstitutionally vague, (2) whether the trial court improperly refused to give an instruction requested by defendant, (3) whether certain comments in the prosecutor's closing argument were improper and (4) whether the sentence was excessive.

The sole witness at the trial was Trooper Noel Oliver. He testified that on October 26, 1973, he had set up a "speedtrap" on a blacktop road located in McDonough County. He clocked defendant's automobile at an excessive speed and flagged defendant over to the side of the road. The officer advised defendant that he was going to be issued a speeding ticket and explained the various ways defendant could post bond. During this time, defendant made several unsuccessful requests that he be issued a warning ticket. Defendant then indicated that he would post a cash bond and was told by the officer that defendant should follow him to the nearest town to deposit the cash bond in a mailbox. At this time, defendant put a ten dollar bill in his left hand, stuck it out the car window in front of the trooper and asked if there wasn't some other way of handling the matter. The trooper then arrested defendant for the crime of bribery.

The relevant portion of section 33-1 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, § 33-1) reads as follows:

"§ 33-1. Bribery.) A person commits bribery when:

(a) With intent to influence the performance of any act related to the employment or function of any public officer, public employee or juror, he promises or tenders to that person any property or personal advantage which he is not authorized by law to accept; * * *." (Emphasis added.)

As both parties agree that no promise was involved, the jury must have found that defendant tendered property to Trooper Oliver. It is defendant's contention that "tender" is unconstitutionally vague and uncertain. In an attempt to buttress his argument at the post-trial hearing, defendant presented the testimony of an assistant professor at Western Illinois University who, after reviewing the history of the word, concluded that "tender," as used in the statute, is archaic and seldom used or understood in contemporary society.

• 1 The Supreme Court, in Giaccio v. Pennsylvania (1966), 382 U.S. 399, 402-03, 15 L.Ed.2d 447, 450, 86 S.Ct. 518, explained the concept of constitutional specificity as follows:

"[A] law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case."

See also People v. Vandiver (1971), 51 Ill.2d 525, 283 N.E.2d 681.

We do not agree with defendant's assertion. Black's Law Dictionary (4th ed. 1951) initially defines "tender" as "an offer of money." Webster's New Collegiate Dictionary (1974) defines "tender" as "to present for acceptance" and as "an offer or proposal made for acceptance." We note also that defendant does not contend that he was unaware that his conduct was prohibited by this statute.

• 2 Terms of a statute may be made certain and definite by prior judicial construction. (People v. Williams (2d Dist. 1967), 79 Ill. App.2d 56, 222 N.E.2d 915, and cases cited therein.) In People v. Wallace (1974), 57 Ill.2d 285, 290, 312 N.E.2d 263, our Supreme Court described the completed offense of bribery as follows:

"As applicable to this appeal, the offeror violates the bribery provisions of section 33-1 when he promises or tenders to a public official property the official is unauthorized to accept, with intent to influence the conduct of that official * * *. The mere offer or promise with the requisite intent is sufficient to constitute the completed offense of bribery." (Emphasis added.)

See also People v. Davis (1st Dist. 1971), 130 Ill. App.2d 1047, 268 N.E.2d 179, where the facts were very ...

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