Tarlor v. State

Luke, J. Walter C. Taylor was convicted under an indictment dated May 29, 1930, wbicb alleged that on the first day of March, 192-3, he “did unlawfully offer to give to J. A. Beall, a legally qualified councilman of the City of Atlanta, a municipal corporation, four hundred dollars in money as a present and reward offered by accused to said councilman to influence the behavior of the said councilman” in a matter pending before the general council of the City of Atlanta. To this indictment the accused filed a demurrer which was overruled on all its grounds. The demurrer was as follows: “1. Said indictment sets forth no offense under the laws of the State of Georgia. 2. The office of councilman of the City of Atlanta is not such an office as the crime of bribery may be committed in respect to. 3. Further demurring, this defendant says that, said indictment only charges that this defendant did ‘offer’ to give said Beall a certain sum of money to influence the behavior of said councilman Beall in the matter of a license, as therein described, which application for license was depending before the council, and this defendant says that section 270 of the Penal Code, which defines the offense of bribery generally, does not make the mere offering of a sum of money to influence the official action of another the crime of bribery, but makes only a crime the actual and substantive offense of bribing an official to influence him in his official duty, and the only section which makes the offer — 66 — ing of a sum of money a crime is section 271, which does not and can not apply to an officer of a municipal corporation, and only applies, outside of members of the General Assembly, judges and referees, to ‘officers of this State/ and a councilman of the City of Atlanta is not an officer of this State.” On the trial of the case the defendant was convicted and filed a motion for a new trial, which was overruled. He assigns error on the overruling of his demurrer and on the overruling of his motion for a new trial. In Payne v. State, 153 Ga. 882 (113 S. E. 446), the Supreme Court held that a policeman of the City of Atlanta is an “officer of the State” within the meaning of section 271 of the Penal Code. It was said that the principal duty of a policeman is the preservation of the public peace, and that the public peace is a matter of public concern. “Policemen are clothed with full power of enforcing not only municipal laws and ordinances within their prescribed spheres, but also the laws of the State within their jurisdiction.” The court further observed that while they are appointed by a board of the municipal government, “they are appointed under legislative authority authorizing the creation of those boards; and therefore they come within the meaning of ‘office of government’ or of ‘justice’ and ‘officer of this State/ within the • meaning of the sections of the Penal Code now under review.” We do not think it necessary to determine in the present case whether the reasoning of the Supreme Court in the Payne ease, supra, would apply equally to a councilman of a municipality. It may or may not be that such an officer is an “officer of this State” within the meaning of section 271. It is enough to say that under the decision in that case the offense of bribery may be committed either in the manner pointed out in section 270 or in the manner stated in section 271, and that the latter section was intended to fix a penalty for the offense whether committed under either of these sections. The indictment in question contained a sufficient statement of the offense under section 270, and it can not reasonably be contended that the councilman did not have a duty to perform in an .“office of government” within the meaning of that section whether or not he was an “officer of this State” within the meaning of section 271. The indictment does not undertake to specify the character of the office held by the person sought to be bribed, other than to say that he was a councilman of the City-of Atlanta, but this was. — 67 — sufficient as a matter of pleading, since the character of the office is determined by law and anything further upon this point would have amounted to a- mere conclusion of the pleader. The indictment appears to have been drawn under section 270, or to have been at least sufficient to invoke the provisions of that section, and the provisions of section 271 were not needed except to prescribe and fix the punishment. The offense of bribery as described in each section is a misdemeanor, and it is the law of this State that “the attempt to commit a misdemeanor shall be punished in the same manner as the misdemeanor which was attempted is punishable.” Penal Code (1910), § 1066 (7). In other words it is a misdemeanor to attempt to commit a misdemeanor. See 2 Bishop Crim. L. § 88. The contention of counsel for the plaintiff in error that this provision of law is inapplicable to section 270 relating to the offense of bribery is untenable. With practically the same force it might be argued that it was inapplicable to any other offense defined in the Code. Under this construction the indictment in this case did not charge the substantive and complete offense of bribery; but there is no reason why the solicitor-general may not draw an indictment for an attempt to commit an offense, where the evidence will not establish more, rather than to place before the grand jury an indictment for the completed offense and then, if the same is returned, to ask for a verdict for the lesser offense of an attempt. In fact, the former course would appear to be the fairer as well as the wiser policy, from the State’s standpoint. Any other practice might tend to confuse not only the defendant, but also the grand jury and the trial jurors as well; and this is true notwithstanding the rule that upon the trial of an indictment for any offense the jury may find the accused not guilty of the offense charged in the indictment, but, if the evidence warrants it, guilty of an attempt to commit such offense, without any special count in the indictment for such attempt. Penal Code (1910), § 1061. This section in express terms recognizes that a person may be indicted for an attempt to commit an offense. The court did not err in overruling the demurrer to the indictment. The evidence establishes as a matter of law that the offense charged was barred by the statute of limitations, which limits to two years the period for finding and filing indictments for such — 68 — offenses. Penal Code, § 30. The special presentment alleges that the offense was committed in 1923, and the special presentment is dated May, 1930. It alleges also that the offense was unknown until May 22, 1930. This allegation that the crime was unknown is an exception to the limitation of prosecutions provided by § 30 of the Penal Code. In Bazemore v. State, 34 Ga. App. 773 (131 S. E. 177), the Court of Appeals held unqualifiedly that “In a criminal case, where an exception is relied upon to .prevent the bar of the statute of limitations, it must he alleged and proved and in the opinion the court said: “The exception, therefore, is an essential and material part of the accusation, and necessary to be proved. Hollingsworth v. State, 7 Ga. App. 16 (65 S. E. 1077); Hansford v. State, 54 Ga. 55 (3).” And this court reversed the judgment of the lower court on the ground that the evidence was “not sufficient to support the allegation that the offender was not known.” It will be noted that this ruling is applicable “in a criminal case” without exception as to “those cases where the offense is against society in general and there is no prosecutor.” Prom that case and many 'other authorities it would appear that the burden was on the State in any “criminal case” to allege and prove that the offender was not known. See also Williams v. State, 13 Ga. App. 338 (79 S. E. 207); Flint v. State, 12 Ga. App. 169, 172 (76 S. E. 1032); Hammock v. State, 116 Ga. 595 (43 S. E. 47). However, assuming that the State was required to make only a prima facie case, and that the “presentment containing the exception will presumptively establish .that the offense or offender was unknown,” until it is disproved, as held in the case of Cohen v. State, 2 Ga. App. 689 (59 S. E. 4), cited by the State, we are of the opinion that the defendant completely rebutted this presumption, and did it with the State’s witness. Eecognizing the jury’s right to pass on conflicting evidence, we base our opinion on undisputed evidence only. It is undisputed that J. A. Beall was the man sought to be bribed; that he was a councilman at the time of the offer; that he was a member of the police committee and sworn as a policeman at the time of the offer; that he was a deputy sheriff at the time of the offer; and that he was a member of the grand jury for several different terms between the date of the alleged crime and the date of the special — 69 — presentment. The State can acquire knowledge of the crime from one whose special duly it is to report it. Beall, having refused the offer of bribery, was in no way implicated criminally, or under any legal restraint from reporting the case or testifying therein. It was Beall’s duty (1) in a private capacity, and (2) in an official capacity, to report the offense; and it being his duty to report it, his knowledge was imputable to the State and was knowledge of the State in legal contemplation; and this knowledge of the State through the years was a bar to the prosecution under a presentment dated seven years after the offense (a misdemeanor) was committed. (1) Duty in private capacity. The offer being made to Beall in person was certainly in his presence and within his knowledge, and § 921 of the Penal Code provides that “a private person may arrest an offender, if the offense is committed 'in his presence or within his immediate knowledge.” This section, though not conclusive, is undoubtedly argumentative on the issue involved, as having the right would at least imply a corresponding duty; and this view is borne out by the holding of this court in Brown v. State, 6 Ga. App. 329 (2) (64 S. E. 1001), wherein it was held that “The statute of limitations does not begin to run in favor of the offender until his offense is known to the prosecutor, or to some one interested in the prosecution, or injured by the offense.” The only possible construction of this decision is that when the offense is known to the person injured by the offense, the statute does begin to run. Beall was injured by the offense in 1923, seven years before the date of the presentment. He was injured by being insulted, by having his integrity attacked, by an insinuation that he could be bought. It is by no means necessary that he should have sustained physical or financial injury in order to be injured. Numerous cases could be cited where the crime is committed without physical or financial injury to the victim. For instance, in Bishop v. State, 86 Ga. 329 (12 S. E. 641), the defendant cursed his victim, one Saggus, and raised a rail and threatened to strike him. The injury to Saggus was not physical or financial, but the crime was committed. Just so in the instant case. Beall was not injured physically or financially, but he was the injured person, and, under the Brown case and many others, the statute begins to run after the crime is known to the injured person. This is as it should' be, because the injured person has some motive for reporting the — 70 — crime to the State. Another thing shown by the decision in the Brown case is that the prosecutor is not the only one whose knowledge would bind the State. It holds that the statute does not begin to run until the offense is known to the “prosecutor” or to someone “injured by the offense;” which necessarily mean's that it does begin to run after it is known to the prosecutor or to the one “injured by the offense.” It seems to be well settled that if a crime against the public involves also a wrong upon an individual, such as an assault or any other crime in which an individual, who is not a party to the crime suffers, the knowledge of the victim is the knowledge of the State, even though the victim does not represent the State in an official capacity. (2) Duty in an official capacity, (a) Councilman. The undisputed evidence shows that Beall was a member of the council of, the City of Atlanta at the time of the offer to bribe, and it can not be reasonably contended that the councilman did not have a duty to perform in an “office of government.” The offer was an attempt to influence his vote in a matter concerning the city. If it be contended that Beall was not the one injured but that the city was the one injured, then the authorities are just as well settled that Beall’s knowledge was imputable to council; and unquestionably knowledge of the council of the City of Atlanta would be such general notoriety as to make the crime known in a legal sense, and furnish a bar to a prosecution seven years later. The City of Atlanta is a municipal corporation. Beall was a member of the council — the governing board — of this corporation, and his knowledge was imputable to the corporation. In Williams v. State, 13 Ga. App. 340, 341 (79 S. E. 207), this court said: “The State failed to prove that the alleged offense was not barred by the statute of limitations. . . Where it affirmatively appears that a corporation is the party defrauded and the party interested in the prosecution, the State does not carry the burden resting upon it, unless it is affirmatively made to appear that none of these officers whose knowledge may be imputed to the corporation knew of the commission of the offense for a period of time exceeding two years prior to the commencement of the prosecution. In other words, it must appear that the prosecution was begun within less than two years from’the time that knowledge of the commission of the offense was brought home to any single officer of the corporation — 71 — whose personal knowledge, due to Ms relation, could be imputed to the corporation. The State having failed to bring the ease within the exceptions set out in § 30 of the Penal Code, the verdict was contrary to law.” (Italics ours.) (b) Policeman. The evidence showed that Beall was a member of the police committee of the City Council of Atlanta. This important capacity so closely connected him with the administration of the criminal laws and public affairs of justice that his knowledge of the crime was knowledge of the State. He swore: "I was councilman from the second ward and a member of- the police committee, and that committee had charge of the police department. They elected the officers, and the police force work under the police committee. That police committee is really a police authority in Atlanta, because it elected everybody from the chief down; and they try policemen and discharged and reinstated and had supervision of the police force all in their hands.” "X have police authority to make arrests, and was sworn as a special city policeman, . . being a member of the police committee of the city. I was sworn in as a policeman, and have power to make arrests.” BealPs capacity as a policeman clearly placed him in a position relating to the public interest. As stated in Payne v. State, supra, the Supreme Court held that a policeman of the City of Atlanta is an "officer of the State within the meaning of § 271 of the Penal Code. It was said that the principal duty of a policeman is the preservation of the public peace, and that the public peace is a matter of public concern. " Policemen are clothed with full power of enforcing not only municipal laws and ordinances within their prescribed spheres, but also the laws of the State within their jurisdiction.” (Italics ours.) The court further observed that policemen "come within the meaning of ‘office of government or of justice ’ and ‘ officer of the State’ within the meaning of the sections of the Penal Code now under review.” (Italics ours.) This ruling of our Supreme Court clearly shows the relation of a policeman to the public and his official capacity relative to the State. This being true, even if bribery be construed as an offense against the public only, a public officer connected with the administration of public laws had knowledge of the offense, and his knowledge was knowledge of the State. (c) Deputy sheriff. On the trial Beall swore: "I am deputy — 72 — sheriff of Fulton county, and have been since 1921, under Capt. J. T. Lowry, sheriff of Fulton county. I have a badge, am authorized to carry a pistol, and carry my badge and pistol at times. I was deputy sheriff at the time of this transaction with Mr. Taylor in March, or April, or January, 1923, and was a city officer at the same time. I was sworn as a special deputy sheriff.” The duty of a deputy sheriff in reference to the enforcement of State laws is too well known to necessitate a discussion here. If the knowledge of a policeman is imputable to the State, as previously discussed, then, a fortiori, the knowledge of a deputy sheriff is knowledge of the State. In this regard, and because of its particular application to the instant ease, we quote the following from a Louisiana case: “Under Rev. St. § 3541, requiring the sheriff to preserve the peace and to apprehend public offenders, his deputy, as his alter ego, is an officer ‘having the power to direct a public prosecution’ as affecting the bar of prosecution by prescription(Italics ours.) State v. Stelly, 126 La. 659 (52 So. 864); 16 C. J. 230 (notes). (d) Grand juror. Beall testified: “I was on the grand jury the April and May term, 1927. I served on that grand jury in May, 1927. I have served on the grand jury five or six times, and the May term, 1927, . . for Fulton county. I served that May term, 1927. I served on four or five grand juries. I served in 1927, 1928, 1929, and 1930, and I may have served in 1926. I served in 1927 when Mr. Gregg was foreman, and that grand jury found many true bills.” This official capacity and public service of Beall, with his knowledge of the crime, makes such' knowledge absolutely imputable to the State, and furnishes a bar to the prosecution. The question at issue is not whether one can be forced to disclose his knowledge, but whether it is his duty to do so. If it is his duty, then his knowledge is imputable to the State. The solicitor-general may have knowledge of a crime, and for some reason take no action thereon; yet his knowledge is knowledge of the State, and such knowledge would prevent the State at a later date from pleading that the crime was unknown. The language of the statute (Penal Code, § 834) is unambiguous as to the duty of grand jurors in this regard. It provides that while they are nobound to reveal past offenses, “it is their duty as jurors to make presentments of any violations of the laws which they may know to have been committed at any previous time, which are not barred — 73 — by the statute of limitations.” In Groves v. State, 73 Ga. 208, the Supreme Court said: “Can it be possible that a grand juror, sworn under section 3915 of the Code, ‘diligently to enquire and true presentments make of all such matters and things as shall be given you in charge, or shall come to your knowledge/ can not tell his fellow-jurors what has come to his knowledge touching malpractice in office, that they, with him, may look into it, without being a prosecutor or getting somebody else to act as such ? If, after he is sworn, it comes to his knowledge, how can he avoid divulging it to his fellows? If, before he is sworn, he learned it, and the judge charges him' his duty under section 3917 ‘to make presentments of any violations of the laws which he may know to have been committed at any previous time and which are not barred by the statute of limitations/ how can he keep his oath to obey the charge of the court, and not tell his fellows what he knows?” In Hansford v. State, 54 Ga. 58, the Supreme Court, in discussing a bar to prosecution because of the offense being known, said: “The defendant may have procured others to act or aid in the commission of the offense, unknown to the grand jurors or the prosecutor.” This clearly shows that if the grand jxirors or prosecutor knew of the crime, it was not in a legal sense unknown; and the knowledge'of one grand juror is the knowledge of the other grand jurors. Grand jurors in session should and do impart their knowledge of crimes to their associate grand jurors. The fact that Beall had promised not to disclose his knowledge of the crime in no way relieved him from the duty imposed upon him by law to disclose it. We know of no statute or decision which limits the knowledge of crime imputable to the State to that of the solicitor-general; and if Beall, in the capacity of a policeman, and deputy sheriff, and grand juror; or otherwise, can defeat the intent of the law by a mere promise, then the same rule would apply tó the solicitor-general, and it certainly must be conceded that knowledge of the solicitor-general would be knowledge of the State regardless of any promise he might have made. One can not by a mere promise to a fraternity brother render inapplicable to himself a duty imposed by law. Beall’s knowledge of the offense of an attempt to bribe him by Taylor was such that the offense was known in the sense of section 30 of the Penal Code, and unless Taylor’s conduct in requesting silence of Beall altered'the situation, the prosecution of Taylor, — 74 — which was instituted seven years afterwards, was barred by the statute of limitations. The question then arises as to the effect of Taylor’s act 'in requesting Beall to keep silent in the matter and the agreement between Beall and Taylor by which Beall agreed to keep the matter silent. The statute of limitations upon the prosecution of a criminal offense in Georgia is not purely remedial as is the statute of limitations for a civil action. The time limitation in which a criminal prosecution must be instituted is one of the essential elements of the offense. The criminal offense of bribery, or an offer to bribe, in this State, does not consist alone in the commission of the acts defined in the Penal Code as constituting either of these offenses, but consists in the commission of these acts within the statutory period of limitation. An indictment which fails to allege the commission of an offense within the statutory period of limitation is fatally defective and sets out no offense against the laws of the State. A conviction upon such an indictment is void. See McLane v. State, 4 Ga. 335, 340. It would seem, therefore, that, irrespective of any conduct on the part of the perpetrator of an act that might constitute a crime which induced the officers or agents of the State who were cognizant of the act and chargeable with the prosecution to defer action until after the expiration of the period of limitation, an act which does not constitute an indictable offense by reason of the statute of limitations would not constitute a crime and become an indictable offense merely because the prosecution of the offense was deferred at the request and instigation of the perpetrator. In Morrison v. B. & O. Railroad Co., 40 App. D. C. 391 (Ann. Cas. 1914C 1026), the Court of’Appeals of the District of Columbia held that the time within which suit must be brought under the Federal employer’s liability act is a condition to the right of the plaintiff to sue, and is not a matter going purely to the defendant’s remedy, and that the employer’s fraud in inducing the postponement of the institution of a suit until after the expiration of the period would be of no avail to the plaintiff. Assuming, however, for the sake of the argument, that the statute which provides for a time limitation upon the prosecution of a criminal offense is purely remedial and is a mere personal right of the defendant which he can insist upon or abandon, as may suit his purpose, he .can certainly rely upon this right as a defense to a — 75 — criminal prosecution unless he has sacrificed it by contract or by conduct amounting to a waiver or estoppel. Where the defendant in a civil action has made no contract, nor given “a new promise” or acknowledgment by which he relinquishes his right to insist upon the statute of limitations, his right to insist upon the statute is not barred except by fraud. Civil Code (1910), § 4380. Such fraud must be actual. Austin v. Raiford, 68 Ga. 201; Anderson v. Foster, 112 Ga. 270 (37 S. E. 426); Frost v. Arnaud, 144 Ga. 26 (85 S. E. 1028). Where a defendant has by fraudulent conduct induced a plaintiff to defer action until after the period of limitation, or has promised not to rely upon the statute, it has been held, on equitable grounds, that the defendant is estopped from pleading the statute. 37 C. J. 725 et seq. A mere request by the defendant to the plaintiff before the expiration of the statutory period for the bringing of suit, to defer action until after the expiration of this period, will not, where no fraud is perpetrated on the plaintiff, operate to estop the defendant from pleading the statute of limitations to a suit brought after the expiration of the statutory period. In 37 C. J. 727, it is said: “Statements calculated to dissuade a litigant from beginning action and not designed to induce its postponement merely will not, in the absence of fraud, estop the party making them from availing himself of the plea of the statute of limitations in the event of subsequent prosecution of such action. Mere reliance by the creditor on the debtor’s promise to pay if not sued does not estop defendant. He is not estopped by having put plaintiff off with a mere request for delay.” In Hill v. Hilliard, 103 N. C. 34 (9 S. E. 639), it was held that “The indulgence of a debtor by the creditor, at the special request of the debtor, will not prevent the running of the statute of limitations. To prevent the statute’s being a bar, there must be an agreement, express or implied, on the part of the debtor, that he will not plead the statute.” In Bank of Tennessee v. Hill, 10 Humph. (Tenn.) 176 (51 Am. D. 698), it was held that a “Court of Chancery is as much bound 'to give effect to statute of limitations as a court of law, and will not prohibit the use of this defense in a court of law except in plain cases of a fraudulent abuse of the advantage of the lapse of time gained by the party seeking to use it; but a mere request to delay suit, or to institute suit against another, instead of the person making the request, does not constitute such a case.” In Cole — 76 — man v. Walker, 3 Metc. (Ky.) 65 (77 Am. D. 163), it was held that “Request to payee for indulgence to payor of note does not hinder or obstruct his legal rights, and can not preclude the sureties from the protection of the statute if the indulgence run for seven years.” Klass v. Detroit, 129 Mich. 35 (88 N. W. 204, 95 Am. St. R. 407); McKay v. McCarthy, 146 Iowa, 546 (123 N. W. 755, 34 L. R. A. (N. S.) 911); Sullivan v. North Pratt Coal Co., 205 Ala. 56 (87 So. 804); Cameron v. Cameron, 95 Ala. 344 (10 So. 506); Monroe v. Herrington, 110 Mo. App. 509 (85 S. W. 1002); Andreae v. Redfield, 98 U. S. 225 (25 D. ed. 158). The Supreme Court of our own State in Ryal v. Morris, 68 Ga. 834, where, as appears from the record, the maker of a promissory note given for the purchase-money of land insisted as a condition precedent to the payment of the note that the holder locate the land lines, and the holder undertook a compliance with the maker’s request, but before completing the surveying of the land lines the period of limitation expired, it was held, in a suit afterwards brought against the maker, that the defendant had not, by his conduct, been relieved of the bar of the statute of limitations. The decision in that case, as reported in the headnote, reads as follows: “That a debtor insisted upon having certain land lines located before paying the note given by him for the purchase-money of such land, and the creditor thereupon waited until the note was barred by the statute of limitations, will not relieve the bar of the statute, the note itself being absolute and containing no condition in regard to lines.” In Georgia Railroad &c. Co. v. Kent, 92 Ga. 782 (19 S. E. 720), it was held: “An action for personal injuries against a railroad company is barred after the lapse of two years from the time the right of action accrued; and where the person injured, in consideration of a contract by the company to do certain things for his benefit and to give him employment for life, agreed not to bring suit and refrained from so doing for nearly eight years, his right of action is not relieved from the bar of the statute, although the company, in making the contract with him, did so for the purpose of deterring him from bringing his action within the time prescribed by law, it appearing also that the company had complied fully with all its undertakings other than that of giving the plaintiff employment for life, and had'in fact employed him for more than seven years before he was discharged.” — 77 — Nothing in Taylor’s conduct requesting the silence of Beall as respects Taylor’s alleged attempt to bribe Beall, and the agreement between him and Beall that Beall would keep the matter quiet, constituted fraud. Taylor made no promise, either express or implied, not to plead the statute of limitations against the offense if the prosecution should be deferred until after the expiration of the period of limitation. Taylor’s request for silence amounted to no more than a request of Beall not to prosecute him, and Beall’s conduct in keeping silent about the matter and refraining from taking any steps towards the prosecution of Taylor was not induced by any fraudulent representations or promises by Taylor. The suggestion that Beall’s silence in the matter until after the expiration of the statutory period of limitation amounted to the stopping of the clock by Taylor is not an accurate simile. Taylor did not stop the clock. Beall stopped it. The clock belonged to Beall and not to Taylor. It was in Beall’s hands and he had control of it. Taylor had no power to stop the clock, but merely requested Beall to stop it. Taylor had no control over the stopping or the starting of the clock, and it was Beall’s failure to further comply with Taylor’s request when Beall seven years later started the clock which he himself had stopped. In view of the authorities and the record in this case we are impelled to hold that the alleged crime is barred by the statute of limitations. We recognize fully the urgent necessity of using every legitimate means to deter crime. However, of even more importance than the punishing of a single individual is the right of every citizen of the commonwealth to have a fair trial according to the rules of law, — a legal trial. To invade that right is to strike at the very foundation of our system of jurisprudence, to endanger society, and, by furnishing a precedent that may be used as a tool, to jeopardize the life or liberty of innocent persons who may in the future come within the toils of the law. We are aware of the maxim, judex damnatur cum noeens absolvitur, but we are equally cognizant of the more vital maxim, judex debet judicare secundum allegata et probata. It appearing from undisputed evidence that the offense was known prior to the expiration of the statutory period of limitation to one whose special duty it was to report it, and such knowledge being imputable to the State, and being knowledge of the State in — 78 — legal contemplation, and the special presentment being found after the expiration of the statutory period, a prosecution for the offense was barred by the statute of limitations, and the court erred in overruling the motion for a new trial. Judgment reversed. Stephens, J., concurs. Bell, J., dissents.