State v. Byrnes

• Decision Date: 31 January 1944
• Citation: 177 S.W.2d 909,238 Mo.App. 220
• Parties: State of Missouri, Respondent, v. Edward F. Byrnes, Appellant
• Court: Kansas Court of Appeals

177 S.W.2d 909

238 Mo.App. 220

State of Missouri, Respondent, v. Edward F. Byrnes, Appellant

Court of Appeals of Missouri, Kansas City

January 31, 1944

Appeal from Cole Circuit Court; Hon. Sam C. Blair, Judge.

Reversed and remanded.

William J. Hough, John W. Joynt and Edgar J. Keating for appellant.

(1) Instruction S-1 erroneously states the duties of a member of the Legislature. Const. Mo., Art. 4, Sec. 15. It is erroneous to give an abstract proposition of law in an instruction in a criminal case. State v. Meininger, 306 Mo. 695; State v. Cooper, 32 S.W.2d 1098. The instruction states as an undisputed fact a controversial matter. State v. Van Graaferland, 293 S.W. 445; State v Brown, 193 S.W. 902. Instruction S-1 is inconsistent with and contradictory to Instruction S-3. State v Gruin, 147 Mo. 39; State v. Curtis, 70 Mo. 594. Instruction S-1 is not within the issues nor supported by the evidence. State v. Campbell, 210 Mo. 202; State v. Baker, 264 Mo. 339; State v. Ballew, 56 S.W.2d 827. Instruction S-1 is misleading and gives the jury a roving commission to convict in that it does not demand a finding as to intent to solicit a bribe. State v Campbell, 210 Mo. 202; State v. Baker, 264 Mo. 339; State v. Farmer, 111 S.W.2d 76; State v. Cooper, 32 S.W.2d 1098. (2) Instruction S-2 was erroneous in that: (a) It gave the jury a roving commission to convict the defendant of acts neither supported by the indictment nor by the evidence offered in the State's case. State v. Britt, 213 S.W. 425; State v. Painter, 44 S.W.2d 79; State v. Creed, 252 S.W. 678; State v. Brown, 193 S.W. 902. (b) It states an abstract proposition of law, and is a comment on the evidence. State v. Meininger, 306 Mo. 695; State v. Cooper, 32 S.W.2d 1098; State v. Jordan, 268 S.W. 64; State v. Brown, 193 S.W. 902. (3) Instruction S-3 is misleading and confusing to the jury and is directly contradictory of Instruction S-1 in that it calls upon the jury to find matters necessary to a conviction which the court in Instruction S-1 declares to be a fact. State v. Grugin, 147 Mo. 39; State v. Curtis, 70 Mo. 594. Said instruction is a repetition of Instruction S-1 and unduly emphasizes the matters therein contained. State v. Miller, 237 S.W. 498. Said instruction does not correctly state the law upon the duties of the defendant as a legislator. Const. Mo., Art. 4, Sec. 15; State v. Sullivan, 110 Mo.App. 75, 84 S.W. 105. (4) It was error to overrule defendant's plea in abatement. Sec. 3911, R. S. Mo. 1939; State v. Salmon, 216 Mo. 466. (5) It was error to overrule the objection of the defendant to the argument of the prosecuting attorney. State v. Pierson, 56 S.W.2d 120; State v. Kaempfer, 119 S.W.2d 294; Secs. 4081, 4082, R. S. Mo. 1939. (6) State v. Pierson, 56 S.W.2d 120; State v. Kaempfer, 119 S.W.2d 294. (7) The context of Item 7 at Page 26 of this Brief was inadvertantly inserted herein and the court will please disregard the same. (8) It was error to fail to direct a verdict of "not guilty." State v. Sullivan, 110 Mo.App. 75, 79; People v. Walsh, 65 Ill. 58. (9) Defendant's demurrer should have been sustained for the reason that the State failed to prove the commission of a misdemeanor and failed to support the charges of the indictment. Further, the indictment failed to state a criminal offense. Const. Mo., Art. 4, Sec. 15; State v. Sullivan, 110 Mo.App. 75, 84 S.W. 105.

C. J. Quimby, W. O. Jackson, Assistant Attorney-General, and William L. Vandeventer, Special Assistant Attorney General, for respondent.

(1) There was no error in giving Instruction S-1. The giving of an instruction containing an abstract declaration of law, in a misdemeanor case, which states a general legal proposition preliminary to other instruction is not erroneous. State v. Gentry, 329 Mo. 282, 44 S.W.2d 27; State v. Yocum, 205 S.W. 232; State v. Decker, 326 Mo. 946, 33 S.W. 958, 962; 11 C. J. S., p. 858, sec. 7; Sec. 15, Art. 4, Const. of Mo. (2) The giving of Instruction No. S-2 was not erroneous as it correctly states the law as to soliciting a bribe. State v. Sullivan, 110 Mo.App. 75, 84 S.W. 105; State v. Farris, 229 S.W. 1100; Walsh v. People, 65 Ill. 58, 16 Am. Rep. 569; State v. Nye, 11 Ohio N. P. (N. S.) 616; Commonwealth v. Albert, 307 Mass. 239, 29 N.E.2d 817; People v. Powell, 50 Cal.App. 436, 195 P. 456. (3) Instruction S-3 placed an additional burden on the State, was favorable to the appellant, and he cannot complain of injury. It submitted to the jury all the elements of the offense. State v. Ross, 312 Mo. 510, 279 S.W. 411; 24 C. J. S., sec. 1940; State v. Spidle, 342 Mo. 571, 116 S.W.2d 96; State v. Nienaber, 153 S.W.2d 464; State v. Reinke, 147 S.W.2d 464; See cases cited under Points (1) and (2). (4) An Assistant Attorney-General has a right to appear before a grand jury in the presentation of cases. The fact that he made stenographic notes, for future reference, would not invalidate the indictment. There is no evidence that appellant was prejudiced in any manner. State v. Sullivan, 110 Mo.App. 75, 84 S.W. 105; State v. Johnson, 115 Mo. 480, 22 S.W. 463; Sec. 12898, R. S. Mo. 1939; State v. Huett, 328 Mo. 335, 104 S.W.2d 252; State v. Naylor, 328 Mo. 335, 40 S.W.2d 1079. (5) Where a defendant offers himself as a witness in his own defense and testifies, the prosecutor may in the argument call attention to the fact that the defendant failed to explain other matters about which he did not testify and which are material to the investigation. State v. Posey, 347 Mo. 1088, 152 S.W.2d 34; State v. Pierson, 343 Mo. 841, 123 S.W.2d 149; State v. Hancock, 340 Mo. 918, 104 S.W.2d 241; State v. Emry, 18 S.W.2d 10; State v. English, 308 Mo. 695, 274 S.W. 470; State v. Murchie, 225 S.W. 954; State v. Drew, 213 S.W. 106. (6) The testimony of witness Harris raised a question of fact for the jury, which they resolved against the appellant. It was not necessary to have corroboration. State v. Morrison, 27 P.2d 1065; 11 C. J. S., p. 874, Sec. 17. (7) The indictment was sufficient in form and substance. State v. Sullivan, 110 Mo.App. 75, 84 S.W. 105.

Sperry, C. Boyer, C., concurs.

OPINION

SPERRY

The State, by indictment, charged Edward F. Byrnes, defendant, with the misdemeanor of soliciting a bribe. Trial to a jury resulted in a verdict of guilty.

The undisputed facts are that defendant was a member of the House of Representatives of the Sixty-first General Assembly; that he was a member of the committee on insurance thereof; and that there was referred to said committee for its consideration certain proposed legislation known as Senate Amendment to Committee Substitute for Senate Bills Numbers 80 and 129, as amended.

The kernel of the indictment is the charge that, on the -- day of June, 1941, at the County of Cole, in the State of Missouri, while said bill was pending in the House of Representatives and in said committee, defendant did propose and offer to receive as a bribe from one Howard C. Harris one suit of clothes to induce defendant to cast his vote, as a member of said committee, in favor of said bill, and to secure the approval of said bill by said committee.

To sustain the charge the State offered in evidence the bill above mentioned and the testimony of Harris. Harris testified, to the effect, that he was in Jefferson City on June 8, 1941, and was interested in the enactment of said bill into law; that defendant wanted to know ". . . how much it would be worth to me if he got the bill out of the House Committee;" that he told defendant that: "I didn't have that kind of money;" that defendant stated: "You might have a difficult time getting that bill out of the committee unless there is some money raised, because it looks like the money is being spent for Robinson to keep that bill in the committee;" and that witness answered: "If Robinson keeps it in there God knows he has got more nerve than I thought he had."

Harris further testified that he again saw defendant in Jefferson City on June 25, 1941. Witness related the following conversation as having occurred on that occasion: ". . . asked me if I would give him enough money to get a suit of clothes, and if I did that he would guarantee to get that bill out of the committee for me"; that he told defendant: "You know I can't do anything like that"; that defendant said: "Well, if you don't want to give me the money will you give me a suit of clothes, and I will get that bill out of the committee"; and that witness refused to do as requested.

Defendant denied ever having had the above-mentioned conversations with Harris.

Complaint is made that error was committed because the trial court overruled defendant's motion to quash the indictment. The motion was based on allegations to the effect that an assistant attorney-general was in the grand jury room during the time the jury was hearing evidence and deliberating on the indictment; that said attorney took, in shorthand, the testimony of witnesses; and that said shorthand notes, covering said evidence, were read by the attorney to the grand jury, and to members thereof.

Defendant was the proponent of the motion and the burden was on him to prove the allegations of fact upon which said motion was based. From an examination of the abstract of the record containing the evidence offered in support of the motion, it appears that the grand jury which returned the indictment in the instant case also heard evidence in connection with, and considered, many other criminal charges and cases involving parties other than defendant and with which defendant had no connection. The record fails to disclose that the conduct here complained of occurred while the jury was hearing evidence, or engaged in deliberation, on the charges which culminated in the instant...