State v. Faulkner

• Decision Date: 19 May 1903
• Citation: 175 Mo. 546,75 S.W. 116
• Court: Missouri Supreme Court
• Parties: STATE v. FAULKNER.<SMALL><SUP>*</SUP></SMALL>

75 S.W. 116

175 Mo. 546

STATE v. FAULKNER.^*

Supreme Court of Missouri, Division No. 2.

May 19, 1903.

PERJURY—TESTIMONY BEFORE GRAND JURY— DENIAL OF KNOWLEDGE — INDICTMENT— SUFFICIENCY — REPUGNANCY — EVIDENCE— CORROBORATIVE — CIRCUMSTANTIAL EVIDENCE —MATERIALITY—CRIME UNDER INVESTIGATION — ILLEGAL COMBINATION — HEARSAY — CONFIDENTIAL COMMUNICATIONS — AID IN COMMITTING CRIME — VARIANCE — FORMS OF KNOWLEDGE — SELF-CRIMINATING EVIDENCE — WAIVER OF PRIVILEGE — QUESTIONS FOR COURT — MATERIALITY OF FALSE TESTIMONY — INSTRUCTIONS — CRIMINAL PROCEDURE — SPECIAL VENIRE — METHOD OF DRAWING — SERVICE OF LISTS.

1. It is perjury for a witness subpœnaed before the grand jury investigating a charge of bribery to testify that he "did not know of, nor had he ever heard of," the existence of money alleged to have been deposited for the purposes of the bribe, when he in fact had knowledge of such money and the purposes for which it was to be used.

2. A witness who falsely denies before the grand jury any knowledge of a fact material to the investigation, cannot defend a charge of perjury on the ground that the evidence sought from him would have been merely cumulative.

3. An indictment for perjury committed before the grand jury is not repugnant in alleging that it had been "developed" before the grand jury, which was investigating a charge of bribery, that money had been deposited, and that it "became material" to the issue to ascertain defendant's knowledge of said money and the purposes for which it was to be used; it being the right and duty of the grand jury to obtain all the material evidence that they could to substantiate the charge.

4. The statute providing for the issuance of special venires as of course on motion made three days before the day set for trial, being expressly declared to be applicable to cities having over 300,000 inhabitants, is therefore not special, and makes no invidious distinction in the case of St. Louis.

5. Rev. St. 1899, §§ 3791, 6566, relative to special juries, are not in conflict. The former secures to all litigants the right to a special jury, and the latter merely provides the machinery for drawing such juries in cities of over 100,000 inhabitants.

6. A special jury is not a jury drawn by chance from a wheel, but is one selected by the proper officer in the exercise of judgment and discretion.

7. Rev. St. 1899, §§ 3791, 6566, securing to all litigants the right to a special jury, and providing a peculiar method for selecting such jury in cities of over 100,000 inhabitants, are not unconstitutional.

8. Under Rev. St. 1899, § 2623, requiring the service of a list of jurors on defendant 24 hours

before trial in cases in which the offense is punishable with death or life imprisonment, 12 hours before trial where there is a minimum and no maximum limit, and in other cases "before the jury is sworn, if defendant requires it," defendant in a prosecution for perjury, punishment for which is imprisonment for not less than two nor more than seven years, is only entitled to the list before trial, and if he requires it.

9. There is no conflict between Rev. St. 1899, § 2623, which provides the time within which a list of jurors shall be delivered to defendant in a criminal prosecution, and section 6566, providing for the machinery for drawing a special jury in cities of over 100,000 inhabitants, and requiring a delivery of the list to each party.

10. Statutes providing for summoning jurors are merely directory.

11. It is not necessary in a criminal prosecution that defendant's counsel be served with the list of special jurors by the sheriff, but service by the clerk is sufficient.

12. In a prosecution for perjury a special venire for 50 jurors was issued, and on the return day thereof defendant insisted on the full number being summoned, whereupon 50 more were selected, the venire being returnable four days later. On the latter day 12 jurors were examined on their voir dire, and found competent, but the next day defendant objected that they had been drawn from the second list, and moved to complete the list from the first list. Held, that defendant had no absolute right to require the court to return to the first list, and the court, in its discretion, had power to deny the motion.

13. The fact that there was no objection to any juror on the panel as finally chosen shows that no prejudice resulted to defendant.

14. In a prosecution for perjury committed before the grand jury in denying knowledge relative to the existence of an alleged bribe which the jury were investigating, the fact of the bribery was pertinent and material, but its pertinency depended on defendant's knowledge thereof.

15. A prosecution for perjury cannot be based on the testimony of the accusing witness unless corroborated.

16. A conviction of felony must be established beyond a reasonable doubt, and, while it may be established by circumstantial evidence, the circumstances must be consistent with guilt and inconsistent with innocence.

17. The fact of the existence of a combination in a legislative body to control legislation is not of itself sufficient to establish that such combination was for illegal and corrupt purposes, and thereby render a member thereof responsible for, or show his knowledge of, a corrupt bargain on the part of another member to accept a bribe for the purpose of influencing legislation.

18. In a prosecution for perjury in falsely denying before the grand jury knowledge of a bribe under investigation by them, witness had testified to a communication with defendant, in which the latter had detailed his knowledge of such bribe, whereupon witness had said that he had heard the story before. On cross-examination he said that he had not told defendant from whom he had heard it, whereupon, on redirect examination, he testified from whom and how he heard it, which was in defendant's absence. Held, that the testimony was hearsay, had not been induced by defendant on cross-examination, and was hence improperly admitted.

19. Communications made by a client to his attorney before the commission of a crime, and for the purpose of being guided and helped in its commission, are not privileged.

20. Rev. St. 1899, § 4659, rendering an attorney incompetent to testify concerning any communication made to him by his client in that relation, or his advice thereon, without the consent of the client, is merely declaratory of the common law, and does not affect the exceptions to the rule excluding such communications.

21. The rule rendering communications between attorney and client privileged does not exclude all communications between them, but only such as pass in professional confidence.

22. A communication made by a client to his attorney in attempting to procure his services in securing a bribe which had been promised but withheld is not privileged.

23. Where, in a prosecution for perjury, the indictment charged defendant with having falsely testified that he did not "know" of the existence of a certain bribery fund, it was error for the court to charge that defendant should be found guilty if he falsely swore that he had not "heard" of such fund.

24. In a prosecution for perjury, error in charging that defendant would be guilty if he falsely testified that he had not "heard" of the existence of a certain bribery fund, where the perjury assigned in the indictment was a denial of "knowledge," was not cured by cautioning them that what defendant had read in the papers would not be knowledge.

25. In a prosecution for perjury, assigned on defendant's false denial of knowledge of a bribery fund deposited to influence legislation, a requested charge defining and limiting defendant's sources of knowledge to personal knowledge derived from his own sources apart from gossip, rumor, and hearsay should have been given, subject to modification charging defendant with knowledge if he belonged to a criminal conspiracy or combine in the house of delegates, founded for the purpose of corruptly influencing legislation, of which the alleged bribe solicitor was a member, and in which capacity he solicited the bribe—that being the theory on which the state was proceeding.

26. In a prosecution for perjury committed before the grand jury, the fact that the testimony assigned as false was given after the grand jury had instructed indictments to be drawn in the matter relative to which defendant was testifying did not affect the materiality of such testimony or defendant's responsibility therefor.

27. A witness, when called upon to testify to self-criminating evidence, may, if his privilege be wrongfully refused, decline, and, if imprisoned for contempt, obtain redress by habeas corpus, or yield, save his exceptions, and obtain a reversal of the judgment.

28. The right of a witness to refuse to give self-criminating evidence is a personal privilege, which he may waive, and will be held to have waived if he voluntarily answers without objection.

29. Perjury may be assigned on the giving of false testimony, which, if true, would have been self-criminating.

30. In a prosecution for perjury committed before the grand jury which was investigating a charge of bribery in corruptly influencing legislation, a charge to acquit defendant unless the alleged offerer of the bribe was employed by the directors of the company for whose benefit the legislation was to be enacted was properly refused, the evidence overwhelmingly establishing that he was the criminal agent of the company, working under the direct orders of its president.

31. Such evidence did not constitute a substantial variance from the indictment, which alleged that the offerer of the bribe was employed by the company.

32. In a prosecution for perjury the materiality of the evidence assigned as false is a question for the court, which cannot be submitted to the jury.

33. It is not error to refuse requested instructions when fully covered by the charge as given....