State v. Woodward

• Decision Date: 14 June 1904
• Citation: 81 S.W. 857,182 Mo. 391
• Parties: THE STATE v. WOODWARD, Appellant
• Court: Missouri Supreme Court

81 S.W. 857

182 Mo. 391

THE STATE v. WOODWARD, Appellant

Supreme Court of Missouri, Second Division

June 14, 1904

Appeal from Johnson Circuit Court. -- Hon. W. L. Jarrott, Judge.

Affirmed.

J. W Suddath with J. W. Garner for appellant.

(1) Criminal and penal statutes are to be strictly construed in all parts which are against defendants, but liberally construed in those which are in their favor. State v Bryant, 90 Mo. 535; State v. Gritzner, 134 Mo 512; State v. Howard, 137 Mo. 289; State v. McCance, 110 Mo. 398; State v. McLain, 49 Mo.App. 400. (2) To offer is: "To bring or put forward; to hold out for acceptance; to present for acceptance or rejection; to tender or make tender of; to come into view, or to be at hand." Century Dictionary, vol. 4, p. 4090. "To present as an act of worship; to bring to or before; to hold out to; to present for acceptance or rejection; as, to offer a present or a bribe; to present itself; to be at hand." Webster's International Dictionary. "To tender; to present for acceptance or refusal; To proffer, as, to offer one's hand, to offer a book." American Encyclopaedic Dictionary. "To present; to exhibit for acceptance or rejection; to tender; to be present; to be at hand." Worcester's Dictionary. (3) There is a distinction between offering and promising a bribe or reward. State v. Harker, 4 Harr. (Del.) 559; 17 Am. & Eng. Ency. Law (1 Ed.), 39; Morrison v. Springer, 15 Iowa 327; Chase v. Miller, 41 Pa. St. 419. (4) Defendant can not by any means be compelled to testify against himself. State v. Young, 119 Mo. 495; In matter of Charles Green, 86 Mo.App. 216; State ex rel. v. Simmons Hardware Co., 109 Mo. 118. (5) When an accused is compelled to answer questions touching his supposed connection with the crime then under investigation, without his being informed of his legal rights, and the effect of his replies, these admissions or statements are not admissible against him. Coffee v. State, 23 Am. St. Rep. 525; People v. Mondon, 57 Am. Rep. 709; S. C., 103 N.Y. 211; People v. McMahan, 15 N.Y. 384. (6) Names of witnesses should be endorsed on indictment. R. S. 1899, sec. 2517; State v. Nettles, 153 Mo. 464; State v. Stirfel, 106 Mo. 129; State v. Roy, 83 Mo. 268; State v. Goody, 84 Mo. 220. (7) It is right that when a citizen's liberty or life is endangered he should know the names of the witnesses by whom the charge is to be made good, so he can prepare his defense. State v. Stirfel, 106 Mo. 129; State v. Roy, 83 Mo. 268; State v. Goody, 84 Mo. 220. (8) An application for continuance by defendant in a criminal cause on account of absence of a material witness, which is the first one made and meets the requirements of the statute, should be granted. State v. Bradley, 90 Mo. 160.

Edward C. Crow, Attorney-General, Sam B. Jeffries, Assistant Attorney-General, H. S. Hadley and W. H. Wallace for the State.

(1) The words, "to give," which are found in the indictment in this case, following the word "offering," are omitted from the quotation furnished to the court by appellant. The omission of these words furnishes the foundation of appellant's principal argument that this conviction should be set aside on the ground that the evidence failed to establish the crime charged. Fortunately, the high character of appellant's counsel relieves them from any suspicion of attempting intentionally to deceive the court and secure the discharge of their client by misrepresentation as to the language of the indictment. The statute makes it a felony "to corrupt or attempt to corrupt one sworn as a juror by giving or offering to give any gift or gratuity whatsoever." The meaning of the expression "offering to give" must be determined by comparison and relation to the expression "by giving," and also by the accepted meaning of the word "offer" when followed by the words "to give." Such a method is the sensible and proper one for determining the intention of the legislators who enacted this statute. The statute does not use the words "promise to give," and sane men, anxious to see our courts kept free from the corrupting influences of the bribe giver, can hardly contend seriously that the legislators intended that only those persons would be guilty under the statute who succeeded in having their bribes accepted, or who made a "legal tender" of their gift or gratuity. Such a construction of the statute would be a ridiculous absurdity, for a "gift or gratuity" might not be the subject of manual delivery or "legal tender." In 21 Am. and Eng. Ency. of Law, 832, the definition of the word "offer" is given as "a proposition to do a thing." "It is sometimes a convertible term with 'attempt.'" And the following well-considered cases are cited in support of these definitions: People v. Ah Fook, 62 Cal. 494; Riggs v. Dennison, 3 Johns. Cas. (N. Y.), 202; Willis v. Standard Oil Co., 50 Minn. 296; Commonwealth v. Harris, 1 Leg. Gaz. (Pa.) 455. (2) The second contention of the appellant is that what Woodward said in Judge Slover's chambers, and what was said by others to him and in his presence during the course of conversation touching the charge under investigation in this case, was not admissible. Appellant cites no Missouri cases to sustain this contention. The law as laid down frequently by this court is that admissions or confessions of the defendant are admissible if made voluntarily, there being no threats, promises or inducements used to secure them. State v. Shackleford, 148 Mo. 493; State v. Vaughn, 152 Mo. 73; State v. McKenzie, 144 Mo. 40; State v. Robinson, 160 Mo. 125; State v. Northway, 164 Mo. 513; State v. Armstrong, 157 Mo. 257; State v. Bradford, 156 Mo. 91. (3) No diligence was shown on the part of the defendant to locate and secure the testimony of witness Church, who had been, as was shown by evidence, offered on the part of the State in opposition to the application for a continuance, a fugitive from justice for nearly a year from two indictments pending against him in the criminal court of Jackson county. And then the hope of securing the testimony of this character of witnesses is not sufficiently strong to encourage the courts in granting a continuance for that purpose. In reference to the witnesses Warner and Trattell, it can be said that the application so far as it relates to these two mysterious personages demonstrates the wisdom of the frequent decisions of this court, that the granting or refusing of a continuance is a matter peculiarly within the discretion of the trial court. State v. Webster, 152 Mo. 87; State v. Tettaton, 159 Mo. 354. Furthermore, in view of the length of time this case had been pending, no diligence had been shown to secure the testimony of these witnesses. State v. Kindred, 148 Mo. 270.

OPINION

GANTT, P. J.

On the third day of May, 1901, the grand jury of Jackson county preferred an indictment against Grant Woodward, the defendant, in which he was charged to have unlawfully, knowingly, willfully, corruptly and feloniously attempted to corrupt one Joseph Gephart who had been duly summoned, impaneled and sworn as one of the jurors in a certain civil cause wherein Mary H. Walton was plaintiff and the Metropolitan Street Railway Company was defendant, then pending and on trial in the circuit court of Jackson county, and then and there having jurisdiction of said cause, "by then and there unlawfully, knowingly, willfully, corruptly and feloniously offering to give to the said Joseph Gephart a certain gift, and gratuity, to-wit, ten dollars, with the felonious intent to bias the mind of the said Joseph Gephart and to incline him to be more favorable to the side of the defendant aforesaid than to the side of the plaintiff aforesaid in the trial and decision of the said issue so joined and on trial before said jury as aforesaid."

There was a second count which was dismissed, and hence it is not necessary to notice it on this appeal.

The defendant was duly arraigned and entered his plea of not guilty and the cause was set down for trial June 14, 1901, and reset for June 20, 1901, On the twenty-fifth of June, 1901, the cause was continued to the September term, 1901, for want of time to try the same, and defendant admitted to bail.

At the September term, 1901, the defendant filed a demurrer to the indictment which was heard and overruled, whereupon defendant filed his application for a change of venue, which was granted, and the cause ordered removed to the Johnson county circuit court, and defendant recognized to appear in said court at the February term, 1902.

At the February term, 1902, of the Johnson county circuit court the State announced ready, whereupon the defendant filed his motion and affidavit for a continuance, which was heard and overruled, and a jury was impaneled and the defendant was put on trial, and on the twenty-third day of April the jury returned a verdict of guilty and assessed the punishment of defendant at two years in the penitentiary. A motion for a new trial was filed, heard and overruled, and the defendant sentenced in accordance with the verdict. The defendant thereupon filed his application for an appeal and an appeal was granted to this court. The time for filing the bill of exceptions was extended from time to time until the eighth of June, 1903, when said bill of exceptions was signed and filed and made part of the record.

The evidence on the part of the State was, in substance, the following:

Charles C. Byers, deputy circuit clerk of Jackson county, testified he was the deputy who served as clerk of Judge Slover's division of said circuit court, Division No. 2. He produced the original of the regular panel of jurors drawn for the April term, 1901, of said circuit court, certified to said court by James L. Phelps, clerk of the county ...