State v. Faulkner
| Decision Date | 31 January 1905 |
| Citation | 84 S.W. 967,185 Mo. 673 |
| Parties | THE STATE v. HARRY A. FAULKNER, Appellant |
| Court | Missouri Supreme Court |
Original Opinion of January 31, 1905, Reported at: 185 Mo. 673.
ON MOTION FOR REHEARING.
It is urged by the defendant that in our foregoing opinion in this case [handed down on the thirteenth of December, 1904], we overlooked the eighth point made by defendant in his brief towit, that "the second instruction given by the court is erroneous because not bottomed upon the evidence." That instruction was in these words:
"If you believe and find from the evidence that at the city of St. Louis, State of Missouri, and within three years next prior to the thirty-first day of January, 1902, there was pending in the Municipal Assembly of the city of St. Louis, a certain ordinance (known as Council bill No. 44) by which it was proposed to grant certain rights, privileges and franchises to the St. Louis and Suburban Railway Company, a railroad corporation; that one John K. Murrell was at that time a member of the said House of Delegates, being one of the branches of said Municipal Assembly; that said John K Murrell for himself and other persons, members of said Municipal Assembly, made any agreement or understanding with Philip Stock as the representative or agent of the St. Louis and Suburban Railway Company that the sum of $ 75,000 should be deposited in a box of the Lincoln Trust Company in said city of St. Louis in the joint names of said John K. Murrell and Philip Stock with the understanding between them that upon the said ordinance being passed by the said House of Delegates, the City Council, and signed by the Mayor, said sum should be turned over to the said John K Murrell for the use and benefit of himself and other members of the House of Delegates; that it was the right and duty of the grand jury of the city of St. Louis at the December Term, 1901, of the circuit court, city of St. Louis, to diligently inquire concerning said matter and to cause to come before them and to examine under oath any and all persons who might have knowledge of said matter and such knowledge and the testimony concerning the same was material to the issue and to such investigation."
That the record shows such an ordinance was pending in said Municipal Assembly within the three years prior to the finding of the indictment in this case was shown by the journal of the Council produced and identified by George F. Mockler, the secretary of said Council, showing the pendency of the said bill or ordinance No. 44 on October 9, 1900, and by Joseph N. Judge, clerk of the House of Delegates, showing its pendency therein in the years 1900 and 1901.
The testimony of John K. Murrell and Philip Stock showed beyond peradventure that said Murrell and the defendant Faulkner were members of the House of Delegates during the years 1900 and up to April, 1901. These witnesses testified in full and in particular to the corrupt bargain between Murrell as the representative of himself and the criminal combine, including defendant on the one part and Stock as the representative and agent of the Suburban Railroad. These facts established, it followed as a necessary conclusion that it was the right and duty of the grand jury to diligently inquire and examine under oath all persons who might have knowledge of said criminal compact and such knowledge was material to their investigation. So plainly was this instruction based upon evidence that it was not thought necessary to dwell upon the pertinency of this instruction numbered 2.
The objection to it now urged that it was not bottomed upon evidence is clearly without merit.
But the motion for rehearing discloses that as a matter of fact it is based not upon the giving of instruction numbered 2, but the giving of instruction numbered 3, which is in words and figures following:
To continue reading
Request your trial