State v. Ballew

• Decision Date: 06 February 1933
• Docket Number: No. 17645.,17645.
• Citation: 56 S.W.2d 827
• Parties: STATE v. BALLEW.
• Court: Missouri Court of Appeals

56 S.W.2d 827

STATE v. BALLEW.

No. 17645.

Kansas City Court of Appeals. Missouri.

February 6, 1933.

Appeal from Circuit Court, Boone County; H. A. Collier, Judge.

"Not to be published in State Reports."

Claud Ballew was convicted of bribing a witness to absent himself and avoid subpœna, and he appeals.

Reversed and remanded.

Don C. Carter, of Sturgeon, for appellant.

W. H. Sapp, Pros. Atty., of Columbia, for the State.

BOYER, C.

By the verdict of a jury, defendant was found guilty of bribing a witness to absent himself and avoid subpœna. The punishment assessed was a fine of $100. Judgment was pronounced upon the verdict. After the motion for new trial was overruled, defendant duly appealed.

The proceeding was initiated upon the filing of an information by the prosecuting attorney based on section 3886, R. S. 1929 (Mo. St. Ann. § 3886), in which this defendant and three others were charged jointly with the commission of the offense in Boone county on or about the ____ day of September, 1930. The information recites that at the time alleged there was pending in the circuit court of Boone county a felony case against defendant, Ballew, in which he was charged with the crime of assault with intent to kill one F. R. Gallagher, and that the said Gallagher was a material witness in said case, and that all of said facts were known to the defendants. That part of the information charging the specific offense is that the defendants "unlawfully, wilfully, and corruptly did give to the said F. R. Gallagher the sum of fifty and no/100 ($50.00) dollars, for the purpose and with the intent to induce, and thereby did unlawfully, wilfully and corruptly induce, bribe and influence the said F. R. Gallagher to absent himself and avoid a subpoena and the service thereof, and not to be and appear before the said court, to give evidence in said cause upon the trial and examination thereof."

From the evidence and admissions, the following facts appear: Defendant and Gallagher both lived in Howard county. Early in July, 1930, they met at a picnic in Boone county, at which time and place there was a fight between them, on account of which defendant was arrested on August 6 under a charge of assault with intent to kill Gallagher. It is admitted by defendant that on the date of the alleged bribery there was an information pending against him in Boone county in which he was charged with the offense of assault with intent to kill. There is also other evidence that said felony case was so pending; that it was set for trial October 14, 1930; that a subpœna was issued for the said Gallagher to appear at said trial; and that he could not be found. Gallagher had absented himself from the state, but returned in about six weeks. He was arrested and was produced as a witness in this case.

Gallagher testified that in the summer of 1930 he lived at the home of one Joe Thornhill in Howard county; that he had an acquaintance by the name of Jim Tully who lived in Boone county, and that in the latter part of September, 1930, he was visiting at the home of the said Tully, and while there the defendant and two others came to that place; that he was called to one side by Ballew and conversed with him, and that during the conversation Ballew stated that he was sorry for their past trouble, and that he further said: "I would like to settle up this trouble if I could. If you will get out of the way and give me a chance to settle it I will give you fifty dollars if you do so." Witness stated: "We agreed to do that." Gallagher then got in the car with Ballew and the two men who were with him and went to the home of Joe Thornhill where Gallagher had been living. Gallagher went in the house to change his clothes preparatory to going away, and while he was changing clothes Joe Thornhill came in and gave him $50. After this Gallagher again got in the car with defendant, who drove the car to Centralia, where Gallagher boarded a train and left the state. Witness testified that it was his intention in leaving the state to give defendant a chance to get his case settled and not to be present as a witness. On cross-examination this witness further reiterated the statements made by defendant as follows: "He told me he would like to have me get out of the way, that he would give me $50 to get away and kind of give him a chance to get the thing settled." "Well, Claud told me he would give me the $50 if I would get out of the way and give him a chance to get the trial settled." It was also developed on cross-examination of this witness that he had previously been in touch with defendant on a similar proposition, and that one Vernon Thornhill took him to defendant's house for the purpose of having him accept money to get away, that this proposition came from Ballew, and that he went to see him at the instance of Vernon Thornhill. The time of this meeting is not definitely shown, but, according to this witness, defendant informed him that he had then been arrested, that he agreed to give money for him to get away, and that he would try to get the money.

Joe Thornhill testified that he was one of the defendants charged jointly in the bribery case with Ballew; that he was acquainted with Ballew, and that Gallagher lived at his house in the summer and fall of 1930; that some time about the latter part of September, 1930, three men, whom he thought were Claud Ballew, George Fisher, and John Lynch, the other defendants in the case, drove up to his house in a car; that he had known Ballew for fifteen years and had known Fisher for six or seven years; that one or the other of these men handed him some money and said, "Here, give this to Gallagher"; that he went into the house where Gallagher was changing his clothes and handed him the money; and that Gallagher then got in the car with Ballew and left his place. This occurred in Howard county. Witness declined to state which one of the two parties named gave him the money for delivery to Gallagher. Ballew and Fisher were both in the car, and it was in the nighttime.

Evidence on behalf of defendant tended to show that Gallagher through different sources had sought to reach the defendant and to obtain money from him, and proposed that he would leave the country if Ballew would give him $50; that no such proposition was ever made by defendant nor accepted by him, but was rejected; that, when Vernon Thornhill took Gallagher to Ballew's house, it was at the request of Gallagher, who then asked Ballew for $50; that Ballew stated that he would not give him $50 and that he wanted him to get off his place and stay off. Ballew and George Fisher, one of his codefendants in the bribery case, denied that they ever appeared at Tully's house in Boone county to see Gallagher, and said they did not see him at that place, and also denied that they were at the home of Joe Thornhill and that they took Gallagher in their car from that place, and testified that they did not offer or give any money to Gallagher in order to induce him to leave the state.

A number of witnesses testified that the reputation of...