State v. Lehman

• Decision Date: 14 June 1904
• Parties: STATE v. LEHMAN.
• Court: Missouri Supreme Court

81 S.W. 1118

182 Mo. 424

STATE v. LEHMAN.

Supreme Court of Missouri, Division No. 2.

June 14, 1904.

BRIBERY — OFFICERS — ACCEPTANCE OF PROMISE — JOINT INDICTMENT — SEPARATE TRIAL — CONSPIRACY — SUFFICIENCY — CHANGE OF VENUE — JURORS — SELECTION — STATUTES — CONSTRUCTION — CONSTITUTIONALITY — TRANSFER OF CASE — INSTRUCTIONS.

1. Rev. St. 1899, § 2576, designating the procedure in applications for change of venue, requiring the application to be supported by affidavit, etc., providing that the court or judge in vacation shall fix the number of witnesses for which the state or county will be liable, and that "reasonable previous notice of the application must be given the prosecuting attorney," intends that the application must be made before the cause proceeds to trial, and it was not error to refuse an application, made while the jurors were being examined.

2. Rev. St. 1899, § 2085, declares that any public officer of a city, who shall directly or indirectly accept or receive any gift, etc., "or any promise or undertaking to make the same," under any agreement that his vote, opinion, judgment, or decision shall be given in any particular manner in any matter pending before him, shall be deemed guilty of bribery. An indictment charged that defendants, members of a house of delegates of a city, unlawfully entered into a certain corrupt bargain, agreement, etc., with B., by which money was by B. placed in the hands of one of the defendants, thereupon selected by defendants to receive said sum, on the promise of said defendants that they would give their vote in favor of a certain measure. Held that, as the offense charged was having accepted a promise to make a gift in pursuance of an agreement to vote, the defendants need not be charged separately by indictment, and the indictment was sufficient, under section 2531, providing that indictments shall not be deemed invalid for any defect or imperfection not tending to prejudice the substantial rights of the defendant on the merits.

3. Statutes relating to the summoning of a jury are directory only.

4. Rev. St. 1899, § 6566, providing that in cities of over 100,000 inhabitants courts of record may, on application of either party, made three days before trial, order a special jury to be selected from persons whose names are furnished by the jury commissioner, is not unconstitutional.

5. On separate trial of a defendant charged jointly with others for bribery, under Rev. St. 1899, § 2085, it was not necessary to conviction to show that all of the defendants participated in the corrupt agreement alleged. Therefore it was not necessary to determine the question raised as to whether one of them was a de jure or de facto officer.

6. Under such indictment, an instruction including one of the defendants, whom the evidence failed to show was a party to the corrupt agreement alleged, was not prejudicial to defendant.

7. Under such indictment, and under evidence not involving the question of conspiracy, acts and declarations of one of the defendants might be considered against the defendant on trial, when made in his presence, though no conspiracy was shown.

8. Under Rev. St. 1899, p. 2541, § 38, relating to the St. Louis circuit court, and providing that whenever a change of venue is asked on the ground of prejudice, interest, or other legal objection to any of the judges thereof assigned for the trial of such case, no change shall be awarded, but the case shall be transferred to another division of said court, it is not necessary, where a case is so transferred, that a transcript of the proceedings in the division where the application is made should be duly and regularly certified to the division to which it is transferred.

9. It is not necessary, in order to constitute bribery, that the vote of the public official bribed should be on a measure that is valid and can be enforced.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

Julius Lehman was convicted of accepting bribes, and appeals. Affirmed.

C. H. Krum and T. J. Rowe, for appellant. The Attorney General, Sam B. Jeffries, and Jos. W. Folk, for the State.

FOX, J.

The trial and conviction in this cause was based upon the first count of the indictment. It is as follows: "The grand jurors of the state of Missouri within and for the body of the city of St. Louis, now here in court duly impaneled, sworn, and charged, upon their oaths present: That on or about the 28th day of November, in the year one thousand eight hundred and ninety-nine, the city of St. Louis was a municipal corporation in the state of Missouri aforesaid, and that the legislative power of the said city of St. Louis was by law vested in a council and a house of delegates, styled the `Municipal Assembly of St. Louis,' the members whereof were elected by the citizens of said city, and that before any measure and proposition could become a law and ordinance of said city it was necessary and requisite that the same should be duly passed and enacted by a majority vote of the members of said council and house of delegates, respectively, and approved by the mayor of said city; that at the said city of St. Louis, and on or about the said 28th day of November, in the year one thousand eight hundred and ninety-nine, Edmund Bersch, Otto Schumacher, John A. Sheridan, Charles J. Denny, Adolph Madera, John H. Schnettler, Emil Hartman, Charles A. Gutke, Louis Decker, T. Ed Albright, John Helms, Julius Lehman, Charles F. Kelly, Jerry J. Hannigan, William M. Tamblyn, and Henry A. Faulkner were then and there public officers of the said city of St. Louis, to wit, members of the said house of delegates and of the said municipal assembly of St. Louis, duly elected and qualified, and were then and there acting in the official capacity and character of members of said house of delegates and of the said municipal assembly; that there was then and there pending and undetermined before the said municipal assembly, for the consideration, opinion, judgment, and decision of the members thereof in the said house of delegates, and before the said Edmund Bersch, Otto Schumacher, John A. Sheridan, Charles J. Denny, Adolph Madera, John H. Schnettler, Emil Hartman, Charles A. Gutke, Louis Decker, T. Ed Albright, John Helms, Julius Lehman, Charles F. Kelly, Jerry J. Hannigan, William M. Tamblyn, and Henry A. Faulkner, in their said official capacity and character as members of said house of delegates and of said municipal assembly of St. Louis, a certain measure, matter, cause, and proceeding in the nature of a proposed ordinance of the said city of St. Louis, designated and known as `Council Bill No. 44,' wherein and whereby it was proposed that the city of St. Louis (by ordinance duly passed and enacted by the said municipal assembly, and approved by the mayor of said city) should authorize and direct the board of public improvements of said city of St. Louis to light certain designated streets, avenues, sidewalks, alleys, wharves, and public grounds and squares of the said city of St. Louis after the first day of January one thousand nine hundred, and should designate the fund out of which the cost thereof should be paid; that it then and there became and was the public and official duty of the said Edmund Bersch, Otto Schumacher, John A. Sheridan, Charles J. Denny, Adolph Madera, John H. Schnettler, Emil Hartman, Charles A. Gutke, Louis Decker, T. Ed Albright, John Helms. Julius Lehman, Charles F. Kelly, Jerry J. Hannigan, William M. Tamblyn, and Henry A. Faulkner, as members of said house of delegates, in their official character and capacity as aforesaid, to give their vote, opinion, judgment, and decision upon the said measure, matter, cause, and proceeding, and for or against the said proposed ordinance, without partiality or favor; that they, the said Edmund Bersch, Otto Schumacher, John A. Sheridan, Charles J. Denny, Adolph Madera, John H. Schnettler, Emil Hartman, Charles A. Gutke, Louis Decker, T. Ed. Albright, John Helms, Julius Lehman, Charles F. Kelly, Jerry J. Hannigan, William M. Tamblyn, and Henry A. Faulkner, well knowing the premises, but unlawfully and corruptly devising, contriving, scheming, and intending to prostitute, betray, and abuse their trust, and to violate their duty as aforesaid as members of the said house of delegates and of the said municipal assembly, did, at the said city of St. Louis, and on or about the said 28th day of November, in the year one thousand eight hundred and ninety-nine, unlawfully, corruptly and feloniously, directly and indirectly, solicit, propose, procure, accept, and receive a certain promise and undertaking to make a certain gift, consideration, gratuity, and reward to them, the said Edmund Bersch, Otto Schumacher, John A. Sheridan, Charles J. Denny, Adolph Madera, John H. Schnettler, Emil Hartman, Charles A. Gutke, Louis Decker, T. Ed. Albright, John Helms, Julius Lehman, Charles F. Kelly, Jerry J. Hannigan, William M. Tamblyn, and Henry A. Faulkner, under an agreement that their vote, opinion, judgment, and decision (as public officers as aforesaid and as members of the said house of delegates and said municipal assembly), should be given for and in favor of the passage and enactment of the said measure, matter, cause, and proceeding, and for and in favor of the passage and enactment of the said proposed ordinance of the said city of St. Louis then and there pending and brought before the said house of delegates, and before them, the said Edmund Bersch, Otto Schumacher, John A. Sheridan, Charles J. Denny, Adolph Madera, John H. Schnettler, Emil Hartman, Charles A. Gutke, Louis Decker, T. Ed. Albright, John Helms, Julius Lehman, Charles F. Kelly, Jerry J. Hannigan, William M. Tamblyn, and Henry A. Faulkner, in their said official capacity and character as members of the said house of delegates as aforesaid, and under an agreement that they, the said Edmund Bersch, Otto Schumacher, John A. Sheridan, ...