State v. Barnholtz, 45031
| Decision Date | 13 February 1956 |
| Docket Number | No. 45031,No. 2,45031,2 |
| Citation | 287 S.W.2d 808 |
| Parties | STATE of Missouri, Respondent, v. Mack BARNHOLTZ, Appellant |
| Court | Missouri Supreme Court |
Charles M. Shaw and Wayne C. Smith, Jr., Clayton, for appellant.
John M. Dalton, Atty. Gen., John W. Inglish, Asst. Atty. Gen., for respondent.
The defendant was convicted of attempted bribery and, in accordance with the verdict, was sentenced to imprisonment in the county jail for ten days and ordered to pay a fine of $1,000, from which judgment he has appealed.
Mack Barnholtz, the defendant, operated a tavern and restaurant known as Lindy's in an unincorporated area of St. Louis County. On August 21, 1954, at about 2:05 a.m., Melvin Cottom and Gilbert Henry Scheu, deputy sheriffs in St. Louis County, went into defendant's place of business. They were in uniform and wearing their badges of office. They saw two bottles of whiskey and a bottle of gin on the top of the bar. The defendant, behind the bar, was in the attitude of pouring a drink from one of the bottles. Since the defendant had a license for the sale of 3.2 beer only, the liquor was seized and the defendant was arrested and charged with illegal possession of intoxicating liquor. The indictment charges that the defendant, while under arrest, offered Deputy Sheriff Cottom 'a sum of money to secure his release from such aforesaid officer.'
The defendant contends that the court erred in failing to direct a verdict of acquittal at the conclusion of all the evidence 'for the reason that the proof amounts to a fatal variance from the facts alleged in the indictment, and thus does not sustain the indictment.' Defendant more specifically contends that there was a total failure of proof of the charge that 'the defendant, after he had been lawfully arrested did offer to deputy sheriff Cottom money or a sum of money as a bribe.' We will consider this assignment of error, despite probable merit in respondent's contention that it was not properly saved for review because a motion for a directed verdict of acquittal was not filed at the close of the whole case and because the question of variance was not raised prior to the filing of the motion for new trial. State v. Grove, Mo.Sup., 204 S.W.2d 757, 759 ; Supreme Court Rule 26.04, 42 V.A.M.S.
With respect to this phase of the case, Cottom testified that when he and Scheu entered defendant's tavern the defendant immediately came from behind the bar and 'met us about half way.' Barnholtz told the officers that he would like to talk to Cottom for a minute and went into the kitchen with Cottom following. A cook and a waitress were there and the defendant asked them to step out, which they did. Cottom testified that then: 'Mr. Barnholtz reached in his pocket and brought out an unknown amount of bills and he says, 'Why can't we fix you up with a present and take care of this here and now; we don't have to go to Clayton'. I said, 'Mr. Barnholtz, you are under arrest; we are going to Clayton'.' The money the defendant had in his hand appeared to be United States currency. When Cottom announced that the defendant was under arrest they left the kitchen and went back into the tavern where Deputy Sheriff Scheu was collecting the bottles of liquor. After the arrest the defendant was driven to Clayton by the deputy sheriffs in their automobile and Cottom testified:
On cross-examination witness Cottom testified that 'He [the defendant] had money in his hand,' 'he definitely had it out of his pocket' and 'was holding it in the palm of his hand.' The defendant at one time made the offer in these words, 'Why can't we get this fixed here and now?' Under further cross-examination this question was asked of Cottom and this reply was given: Further Cottom testified that the defendant showed him the money and asked the deputy sheriff 'How much money will it take to let me go?'
Deputy Sheriff Gilbert Henry Scheu testified that when the defendant and Cottom came out of the kitchen and rejoined him in the tavern the defendant said, 'We could settle this right here and now' and that on the way to the station the defendant offered three times to make them a present and his words, in substance, were: 'Why couldn't we forget about this; I would like to make you a little present.'
The defendant, on the stand, conceded that while he was in the kitchen with Officer Cottom 'I put my hand in my pocket and pulled out my money and showed him.' His version of the transaction, however, was that Cottom had asked for $50 and the defendant was showing him that he did not have that much money. Defendant testified that he told Cottom that he was going to report the matter to some people he knew in Clayton to see if he had to pay any money, and that the deputy sheriff then arrested him.
All the evidence indicates that 'a sum of money,' as charged in the indictment, was exhibited to Cottom by the defendant. The jury was justified in finding that it was an offer and attempt to bribe the deputy sheriff, as attested by him. The defendant further contends, however, that a variance exists in that there was no showing that an offer was made while defendant was under arrest. With this we cannot agree. Officer Cottom testified that the money was exhibited and offered to him by defendant Furthermore, the state's evidence shows that there was a continuing attempt to bribe after the formal arrest had been made in that the defendant, on three different occasions on the way to Clayton, offered to give Officers Cottom and Scheu 'a present.' From this the jury could very well infer that there was a continuing offer of the money which defendant had exhibited in the kitchen. The proof supports the charges of the indictment.
The two cases cited by defendant in support of this allegation of error have no application to the facts of this case. The case of State v. Stewart, 228 Mo.App. 187, 63 S.W.2d 210, involved a charge that the defendants were playing a game of chance commonly called 'rumme' with cards for money. There was no evidence in the case whether there was a game called 'rumme,' what it was or how it was played. This was held to be not a mere variance but a total failure or proof. In the case of State v. Temple, Mo.App., 262 S.W.2d 304, the information charged the defendant with permitting a gambling device on premises possessed and controlled by him. The premises were described by metes and bounds in the information. The evidence tended to show that certain truck drivers were shooting craps on a concrete slab near some business buildings but there was no evidence showing that the location was within the premises specifically described in the information. This was held to be a failure of proof that constituted prejudicial error.
Defendant next contends that error was committed in admitting into evidence state's exhibits 'A,' 'B' and 'C,' being the two bottles of whiskey and one of gin alleged to have been taken from defendant's premises. The defendant alleges that there was a failure to show that these exhibits were the same bottles that were taken from defendant's place of business.
We must keep in mind that the charge here is an offer or attempt to bribe so that the bottles of liquor and the character of their contents are material only on the question of whether defendant was lawfully arrested and not whether he was guilty of the charge for which he was arrested. The state's evidence did tend to show that these were the same bottles, or bottles sufficiently similar to serve the purpose of showing that the officers had reasonable grounds for making the arrest. In fact, it appears that a lawful ground for arrest could have been shown without introducing or attempting to introduce in evidence the three bottles of liquor.
Deputy Scheu testified on direct examination without objection that, 'I saw three bottles of whiskey sitting on the bar.' He stayed and watched the liquor while Cottom went into the kitchen with the defendant. He went back and picked up the liquor. Witness Scheu testified that the state's exhibits 'A,' 'B' and 'C' looked like 'the three bottles that were sitting on his bar.' The witness recognized the tag that Officer Cottom had put on state's exhibit 'B.' The prosecuting...
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State v. White
...at the trial, defendant's present charge that the italicized remark was 'caustically spoken' finds no support. Compare State v. Barnholtz, Mo., 287 S.W.2d 808, 812. Even mild criticism of counsel usually does not require reversal, where the judge's comments in no wise indicate or suggest ho......
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...but it is pointless to pursue the complaint in detail. Allegations of error of this sort do not prove themselves, State v. Barnholtz, Mo., 287 S.W.2d 808, 812(4); State v. McKeever, 339 Mo. 1066, 1082, 101 S.W.2d 22, 30, and in the absence of a record showing what the trial judge said, and ......
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