Harris

This is an application for writ of prohibition to restrain the superior court of Sacramento County from proceeding with the trial of petitioner upon indictment charging that petitioner, while serving as a police officer of the city of Sacramento, agreed to receive a bribe, in consideration of which he promised not to arrest one Argante in the event said Argante should engage in the sale of intoxicating liquor in violation of the national prohibition law.

Petitioner claims that the indictment fails to state facts sufficient to constitute a public offense, for the reason that it fails to appear therefrom that petitioner, as a policeman, had any official authority to make an arrest for any violation of the national prohibition law. And, as stated by petitioner in his brief, “the sole issue for decision, therefore, is whether petitioner was acting in his official capacity as a Sacramento policeman when he is alleged to have agreed not to arrest one Argante should he engage in the sale of intoxicating liquor in violation of the national prohibition law.”

Section 68 of the Penal Code provides that, “Every executive officer . . . who asks, receives, or agrees to receive any bribe, upon…