The first question that will be considered is whether there is such an offense at common law as the acceptance or offering to accept a bribe by a witness.

"Bribery may be defined to be the giving, offering or receiving of any thing of value intended to influence one in the discharge of a legal duty." 4 Enc. of Law 907.

"Bribery is the voluntary giving or receiving of any thing of value, in corrupt payment of an official act done or to be done; the giving, offering or receiving of any thing of value intended to influence one in the discharge of a legal duty; or the crime of offering any undue reward or remuneration to any public officer, or other person intrusted with a public duty, with a view to influence his behavior in the discharge of his duty. Bribery is an offense against public justice. The essence of it is the prostitution of a public trust, the betrayal of public interests, the debauchment of the public conscience. It was an indictable offense at common law. A bribe is a price, reward, gift, or favor bestowed or promised with a view to pervert the judgment or corrupt the conduct of a Judge, witness or other person." 9 Corpus Juris. 402.

"It has frequently been said that at common law the offense of bribery can be predicated only of a reward given to a Judge or to the person concerned in the administration of public justice, but it has been denied that the common law offense is thus limited. In any event the modern definitions of bribery, whether statutory or otherwise, commonly include as the subject of it all persons whose official conduct is in any way connected with the administration of the government, general or local, whether judicial, legislative, executive or ministerial, and persons who execute the functions of a public office or who hold any place of profit or trust under any law of the State." Id. 406, 407.

2

The bribery of a voter is an indictable offense at common law. 4 Enc. of Law 911-912.

These and other authorities that might be cited

Opinion of the Court.

[107 S. C. sustain the proposition that it is not a prerequisite to the offense of bribery that the party giving or receiving money or other valuable consideration for doing an unlawful act should be either a judicial, executive or legislative officer, but it is sufficient if such party shall be under a legal duty connected with the administration of public justice.

3

The defendant whose name appeared as a witness upon the back of the indictment against a party charged with an offense then pending in the Court was under a legal duty to testify in that case, when required. Therefore the acceptance of a bribe by him subjected him to indictment.

The fact that it is an offense at common law to bribe a voter, or for him to receive a bribe, shows conclusively that a person who is not an officer is subject to indictment for such offense, and that it never was confined to officers alone; as it cannot be successfully contended that a voter is an officer.

4

There is another reason why the demurrer was properly overruled. The indictment alleges an agreement between the defendant and a party (whose name does not clearly appear in the indictment, but the testimony shows was said John Dixon) to swear falsely in behalf of said party in consideration of the $15 which the defendant received. This constituted a conspiracy.

"It has been said that there is perhaps no crime an exact definition of which is more difficult to give than the offense of conspiracy. The essentials of a conspiracy, whether viewed with regard to its importance in a criminal prosecution, or its significance in a civil action for damages, are commonly described in this general language: It is a combination between two or more persons to do a criminal or an unlawful act by criminal or unlawful means." 8 Cyc. 620.

"No formal agreement between the parties to do the act charged is necessary. It is sufficient that the minds of the parties meet understandingly, so as to bring about an intel

ligent and deliberate agreement, to do the act and commit the offense charged, although such agreement be not mainifested by any formal words. If two persons pursue by their acts the same objects, often by the same means, one performing one part of the act, and the other another part of the act, so as to complete it with a view to the attaining of the object which they were pursuing, this will be sufficient to constitute a conspiracy." Id. 621.

"Any confederacy or combination the purpose of which is to obstruct the due course of justice, or the due administration of the law, is an indictable conspiracy. Thus it is an offense to conspire to fabricate evidence; to induce witnesses to suppress evidence; to give false evidence * * *” Id. 634.

"The means by which the conspiracy is to be carried out are not a necessary part of the agreement. It is not material how the unlawful purpose is to be obtained, or what part each conspirator is to play." 5 R. C. L. 1065.

We have a case in our own Reports directly in point. State v. DeWitt, 20 S. C. L (2 Hill) 282, 27 Am. Dec. 371. In that case the defendants were indicted for a conspiracy to destroy the last will and testament of the testator, and thereby defraud the devisees. The Court held that all conspiracies to injure others by perverting, obstructing, or defeating the course of public justice, in a criminal or civil proceeding, by the suppression or fabrication of evidence, are indictable. And where two or more conspire for that purpose, and destroy a will with a view to defraud the devisees, it is indictable. The Court used this language:

"Attempts to suborn a witness to commit perjury or to prevent his giving evidence are offenses against public justice; and there can be no well-founded reason why the fabrication of evidence not involving perjury, or the destruction and suppression of that which is good, should not equally be so; they are alike calculated to pervert the public justice of the country, and to do individual injustice."

19-107.

Opinion of the Court.

[ 107 S. C. There are exceptions raising other questions which were not discussed by the appellant's attorneys in their written argument, but which were argued orally. They stated that these exceptions were not abandoned. We have considered them, and have reached the conclusion that, even if there was error, it was not prejudicial to the rights of the appellant.

Appeal dismissed

9691

MOORE v. HINSON.

(92 S. E. 619.)

APPEAL AND ERROR-DISCONTINUANCE OF APPEAL.-Where a case was settled by appellant without knowledge of his attorney, the appeal was discontinued.

Before MAULDIN, J., Cheraw, December, 1915. Appeal dismissed.

Action by D. F. Moore against G. W. Hinson. From judgment for defendant, plaintiff appeals.

Messrs. Pollock & Pegues, for appellant.

Messrs. Stevenson & Prince, for respondent.

May 29, 1917.

The opinion of the Court was delivered by MR. CHIEF JUSTICE GARY.

When this case was called for argument, the respondent's attorney announced that his information was by a telegram from his office at Cheraw that the case was settled. Appellant's attorney said he had no information concerning the alleged settlement, and argued the case. Investigation develops the fact that the case was settled between the par

ties, money paid to the clerk of Court of Chesterfield county by the respondent, and received by the appellant.

It is, therefore, ordered that this action on the part of the appellant worked a discontinuance of the appeal, and the Court will not consider the appeal.

9690

STERNHEIMER v. ORDER OF UNITED COMMERCIAL
TRAVELERS OF AMERICA.

(93 S. E. 8.)

1. INSURANCE MUTUAL BENEFIT INSURANCE BURDEN OF PROOF.-In action on mutual benefit certificate, allegation that insured was in good standing being unnecessary, it need not be proved by plaintiff. 2. INSURANCE-MUTUAL BENEFIT INSURANCE-BURDEN OF PROOF.-The insurer under a benefit certificate is bound to allege and prove delinquency of insured to establish forfeiture of the policy.

3. INSURANCE MUTUAL BENEFIT INSURANCE-EVIDENCE-SUFFICIENCY.Evidence held to warrant refusal to submit to jury question of waiver by insurer under mutual benefit policy of condition as to payment of premium.

4. INSURANCE MUTUAL BENEFIT INSURANCE BURDEN OF PROOF.-In action on mutual benefit certificate, where defendant pleaded delinquency, the burden of proving waiver of condition as to payment was on plaintiff.

5. INSURANCE-MUTUAL BENEFIT INSURANCE-WAIVER OF CONDITION.— In view of Civ. Code 1912, sec. 2755, providing that no subordinate body of a mutual benefit order or any of its officers or members shall have the power or authority to waive any of the provisions of the laws and constitution of the association, and the same shall be binding upon the association, and each and every member thereof and their beneficiaries, the custom of a local lodge not to declare forfeiture upon delinquency did not constitute waiver, especially where the constitution prohibited such waiver and was agreed to by the insured.

6. INSURANCE-MUTUAL BENEFIT POLICY-TIME TO SUE.-In view of Code Civ. Proc., sec. 137, subd. 7, providing that an action on a life policy may be brought within six years, a constitutional provision of a mutual benefit order that no action shall be brought after six months from disallowance of claim does not bar an action until after six years.