State v. Davidson

• Decision Date: 02 June 1913
• Citation: State v. Davidson, 157 S.W. 890, 172 Mo.App. 356 (Kan. App. 1913)
• Parties: STATE OF MISSOURI, Respondent, v. CHARLES O. DAVIDSON, Appellant
• Court: Kansas Court of Appeals

157 S.W. 890

172 Mo.App. 356

STATE OF MISSOURI, Respondent, v. CHARLES O. DAVIDSON, Appellant

Court of Appeals of Missouri, Kansas City

June 2, 1913

Appeal from Boone Circuit Court.--Hon. D. H. Harris, Judge.

Judgment affirmed.

Sebastian & Sebastian for appellant.

(1) The demurrer offered at the close of all the evidence should have been sustained. There was no evidence that the defendant was guilty of the crime charged. It was the duty of the court to determine as a matter of law that the evidence did not sustain the charge in the indictment. 12 Cyc. 177; 1 Wharton on Criminal Law (8 Ed.), secs. 174-6; 1 Bouviers Law Dictionary (15 Ed.), 205; 1 Centary Dictionary, 371; State v. Young, 140 S.W. 873. (2) Should the court consider that there was sufficient evidence to go to the jury, then we submit that the trial court committed the following errors for which the case should be reversed. The trial court permitted the prosecuting attorney to introduce conversations between the defendant and the prosecuting witness, as to what their testimony should be before the grand jury that was about to be reconvened, and which returned the indictment in this case, and as to two informations filed against Points & Tyson before court convened over the objection of defendant and refused defendant's instruction "J" which told the jury not to consider this evidence. State v. Baker, 209 Mo. 444; State ex rel. Foster, 187 Mo. 612; 12 Cyc. 631. (2) The court permitted the prosecuting attorney to inquire of each of the six character witnesses of defendant as to their knowledge of defendant's reputation for selling liquor in violation of law; and as to his reputation for writing a number of whiskey prescriptions; and as to his reputation for being an abortionist, when there was not a particle of evidence that the defendant was guilty of any of these crimes. State v. Sergenthaler, 121 Mo.App. 510; 12 Cyc. 571; State v. Baker, supra; State v. Thornhill, 174 Mo. 364; State v. Oliphant, 128 Mo.App. 252; State v. Spevy, 191 Mo. 87. (4) In overruling defendant's instruction "E" which told the jury that the defendant had a right to be a witness in his own behalf. R. S. 1909, sec. 5242; State v. Saunders, 106 Mo. 188; State v. Stonum, 62 Mo. 597; State v. Brandenburgh, 118 Mo. 187; 12 Cyc. 637. (5) Defendant's instruction No. 2 was proper, as offered, and should have been given without amendment. The defendant was entitled to have the term "reasonable doubt" defined, and especially is this true when the State's instruction did not properly define it. 12 Cyc. 627; State v. Fannon, 158 Mo. 156. (6) Defendant's instructions A, B, C, and D properly declared the law as to defendant's good character, which went to the jury upon the evidence of six witnesses and was not directly questioned by the State, but the prosecuting attorney was permitted to improperly question each of these character witnesses so as to prejudice the defendant before the jury. State v McNally, 87 Mo. 644; State v. Stonum, supra.

E. C Anderson, Prosecuting Attorney, and George S. Starrett for respondent.

(1) The indictment was sufficient under the law and followed the language of the statutes. Sec. 4352, R. S. 1909; State v Biebush, 32 Mo. 276. (2) There being substantial evidence of defendant's guilt it was the duty of the trial court to submit the issues of fact to the jury. Sec. 5212, R. S. 1909; State v. Warner, 74 Mo. 83; State v. Bayne, 88 Mo. 604; State v. Eaton, 166 Mo. 575; State v. Armstrong, 167 Mo. 257; State v. Pollard, 174 Mo. 607; State v. Fonester, 63 Mo.App. 530; State v. Spence, 87 Mo.App. 577; State v. Fulkerson, 97 Mo.App. 599. (3) The conversation between Hatton and the defendant about the reconvening of the grand jury and what their testimony would be was admissible in the trial of this case as tending to show the motive of defendant in approaching Hatton on the subject of his leaving the country and was a circumstance showing defendant's intention to bribe Hatton, hence there was no error in its admission and the refusal of defendant's instruction "J." And further there was no objection to this testimony at the time it was offered, hence the objection comes too late when raised for the first time on appeal. State v. Moore, 117 Mo. 395; State v. Hope, 100 Mo. 347; State v. Harlan, 130 Mo. 381; State v. Bateman, 198 Mo. 223; State v. Bailey, 190 Mo. 277. (4) The trial court committed no error in refusing to give instruction "E" offered by defendant's counsel, as such an instruction would have amounted to a comment upon the evidence. And for the further reason that instruction number four for the State properly stated the law, and covered defendant's testimony in the case. State v. Hicks, 192 Mo. 431; State v. Miller, 93 Mo. 269; State v. Wright, 134 Mo. 406. (5) Defendant's instruction number two as modified by the court and as requested by defendant's counsel properly declared the law. Also instruction number two given by the court at the request of the State very properly and fully declared the law and has been repeatedly approved by the higher courts of this State. State v. Cushenberry, 157 Mo. 168-181; State v. Nueslein, 25 Mo. 111; State v. Sacre, 141 Mo. 64; State v. Hunt, 190 Mo. 353. (6) It is not error to refuse instructions which cover propositions fully covered by others given. The law relative to defendant's character was clearly and fully defined in State's instruction number three and therefore instructions offered by defendant tended only to mislead and confuse the jury. Harrison v. Lakenan, 189 Mo. 581; State v. Ott, 49 Mo. 326; State v. Brooks, 92 Mo. 542. (7) The refusing of defendant's instructions F, G and H, was proper, as they did not correctly state the law, and tended to mislead the jury, and for the further reason that the law covering the points stated was very clearly and fully laid down in State's instructions, numbered one and two, and defendant's instruction number two as modified by the court. Harrison v. Lakenan, 189 Mo. 581; State v. Cushenberry, 157 Mo. 168. (8) Defendant complains that the refusal of the court to give defendant's instruction "I" was error as no other instruction given defined the term "material fact." Appellant however, cites no authority requiring that this term be defined. We take it that the term has no technical meaning and is sufficiently understood by the average juror to require no defining. State v. Walker, 232 Mo. 252; State v. Gregory, 170 Mo. 607; State v. Jacobs, 152 Mo. 565; State v. Sattley, 131 Mo. 491; 12 Cyc. 613.

OPINION

TRIMBLE, J.

This case is a prosecution under section 4352, Revised Statutes 1909, for attempting, by bribery, to induce a witness to absent himself for the purpose of avoiding giving evidence in certain prosecutions for violating the Local Option Law then pending in the circuit court of Boone county against Points & Tyson, a firm of druggists.

The grand jury had returned fifty indictments against said firm. The defendant was a doctor who, for two years, had practiced in Columbia and prior to that had practiced in various other Missouri towns before locating in Columbia. Defendant had written prescriptions for whiskey for the witness Hatton some of which had been filled by these druggists. Hatton was the witness whose name was indorsed on the back of these fifty indictments. After the druggists had been arrested, one of them sent for the defendant and showed him one of the prescriptions written by the latter for Hatton, and told defendant that "they" were going to try to indict defendant for writing said prescription and saddle it onto him instead of onto them. (It is not shown by the record who "they" refers to; whether it means the druggists were going to try to indict him or the authorities. At any rate defendant admits that he thereupon told the druggist he (defendant) would go out and see the witness Hatton. What for, is not shown. Defendant got in his buggy and drove out to Hatton's home. Arriving there he invited Hatton to get in and take a ride with him. Hatton complied and they drove down the road for ten or fifteen minutes. The witness Hatton and the defendant disagree as to what occurred during this drive. Hatton says the doctor told him he (the doctor) believed the druggists would be willing to pay him (Hatton) fifty dollars a month and railroad expenses most anywhere he might want to go, and that it would be necessary to stay until another prosecuting attorney was elected; that Hatton replied the druggists were a little late about it now but that he would see him some other time. That an arrangement was then made to meet the doctor the next morning at his office; that the next morning he went to the doctor's office but did not find him in, and went out on the street and met him and thereupon the two went to the office and were closeted together in the private office for ten or fifteen minutes. Hatton testified that in this conversation the doctor said it was nothing to him whether Hatton went or not, that he (the doctor) was not getting anything out of it, but that the druggists could afford to give Hatton a thousand dollars if he would go. Nothing is shown as to what Hatton said he would do in regard to the matter. But the following morning (Sunday) Hatton called the doctor out to his home to see his little girl who was sick with the measles. Hatton testified that on this occasion the doctor informed him that the grand jury was going to reconvene on Wednesday and would probably have both of them before it to testify about "this Points & Tyson business;" and that he (the doctor) was not going to tell them anything but that Hatton could tell what he pleased. Points & Tyson sent for Hatton to come over to their store, and Hatton went but what transpired between them is...