State v. Faulkner
| Citation | 84 S.W. 967,185 Mo. 673 |
| Parties | THE STATE v. HARRY A. FAULKNER, Appellant |
| Decision Date | 31 January 1905 |
| Court | Missouri Supreme Court |
Rehearing Denied 185 Mo. 673 at 704.
Appeal from St. Louis City Circuit Court. -- Hon. Walter B. Douglas Judge.
Affirmed.
Chas P. Johnson and T. J. Rowe for appellant.
(1) The Hon. Walter B. Douglas was incompetent to try this case. Sec. 2594, R. S. 1899; State v. Lehman, 182 Mo. 424; Goddard v. Delaney, 181 Mo. 564; sec. 38, p. 2541, R. S. 1899; sec. 8, p. 2535, R. S. 1899; secs. 26, 27, p. 2538, R. S. 1899; secs. 832, 4157, 4160, R. S. 1899; State v. Greenwade, 72 Mo. 298; State v. Thompson, 141 Mo. 408; State v. Callaway, 154 Mo. 91; State v. Anderson, 96 Mo. 241; State v. Tatlow, 136 Mo. 678. (2) Defendant's plea in abatement should have been sustained. The grand jurors before whom defendant testified could not return an indictment against him. It is contrary to both the letter and spirit of American law to permit the witnesses against a party to sit in judgment on his case. The jurors who returned the indictment were all witnesses against defendant. Secs. 3768, 2486, 2487, 2508, 2514, R. S. 1899; U. S. v. Edgerton, 80 F. 374. (3) The plea in abatement should be sustained because the record herein shows that there was no evidence before the grand jury upon which to return the indictment. (4) A change of venue should have been granted defendant. The evidence conclusively established the fact that the inhabitants of the city of St. Louis were so prejudiced against defendant that he could not obtain a fair trial. (5) The verdict is against the overwhelming weight of the evidence and is the result of bias, prejudice and passion. (6) The instructions offered by defendant should have been given, and the action of the court in refusing to give same was prejudicial error. (7) The third instruction given by the court is erroneous. It does not properly define the words "know" or "knowledge." It is erroneous because there is no evidence in the case tending to prove that defendant and John K. Murrell were members of the House of Delegates during the year 1901, and during the month of January, 1902. Defendant and Murrell were elected members of the House of Delegates in April, 1899, for a term of two years, and their respective terms expired in April, 1901. (8) The second instruction given by the court is erroneous because not bottomed upon evidence. (9) The court erred in sustaining the State's challenges to jurors Bushnell, Daub and Dauerheim. (10) Defendant could not be guilty of perjury because he was compelled by the grand jury to testify against himself. State v. Faulkner, 175 Mo. 546; U. S. v. Edgerton, 80 F. 374; Mackin v. People, 115 Ill. 312; Boyd v. United States, 116 U.S. 631; Pipes v. State, 26 Tex.App. 318; State v. Gardiner, 92 N.W. 533; Ex parte Carter, 166 Mo. 604.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) Defendant's counsel insist that the plea in abatement should have been sustained by the trial court. This plea is based upon the proposition that inasmuch as defendant had been subpoenaed as a witness to appear before the grand jury at the city of St. Louis, and did so appear and testify, he could not afterwards be indicted by that or any other grand jury upon matters concerning which he had been questioned by that tribunal. It will be observed that defendant admits in his plea in abatement that he was a material witness before the grand jury, but it is, however, asserted by him that, contrary to the Constitution of this State and the letter and spirit of the law, this indictment was found and presented by said grand jury, by reason of his own testimony before said body, and that this indictment is bottomed upon the testimony which defendant was compelled to give against himself in violation of the Constitution of the State of Missouri. In this connection, we remind counsel for the defendant of the fact that defendant was summoned as a witness before said grand jury to speak the truth of and concerning his information and knowledge of the object and purpose of the deposit of seventy-five thousand dollars in the Lincoln Trust Company, and of and concerning the fact that that money had been put up for the purpose of securing the passage of what is known as Council bill No. 44. The indictment here does not charge defendant with having committed the crime of bribery. It does not charge him with the commission of any crime or offense about which he was questioned while before the grand jury. It does, however, charge that he violated his oath, in that he testified falsely to material facts of and concerning the matters then under investigation by the proper authorities. Not one of the authorities which defendant cites in support of his position in this respect can be relied upon as rendering substantial aid to his contention. Necessarily, the latitude of the grand jury is extensive. They have a right to inquire for evidence from any source they see fit and to establish a charge, link by link, and are entitled to true answers. In this connection, however, we call the court's attention to the language of the Supreme Court of the State of Illinois in the case of Macklin v. People, 115 Ill. 312. U. S. v. Brown, 24 Fed. Cas. 1273; U. S. v. McCarthy, 21 Blatchf. 469. Defendant had the right either to testify truthfully or to assert his constitutional privilege and refuse to speak, because of the fact that it might incriminate him. All the authorities are a unit upon the proposition that, where the witness declines or fails to take the benefit of the privilege and voluntarily testifies falsely, he may be indicted by the grand jury before whom he has so falsely testified, and convicted of the crime of perjury. If it be true, as charged by counsel for appellant, that a prosecution cannot be had under the circumstances shown in this case, then the grand jury is deprived of the power which has heretofore been recognized as being rightfully lodged in it. Common sense leads us to believe that it is as essential for the grand jury to have the right to indict a person who has willfully testified falsely before it upon material matters under investigation as has any court the right to punish for contempt committed in its presence. The very fact that the defendant may be guilty of some offense closely connected with the subject-matter about which he was examined when testifying falsely does not deprive the grand jury of its right to demand and receive from a witness the absolute truth, and there is only one instance in which a witness may refrain from telling the truth, and that is by closing his lips and standing upon the constitutional privilege that, if he should speak, he might incriminate himself. This, under the decisions, is the only exception, and to vary from this rule would, in a sense, strike down and destroy the province of the grand jury. The evidence shows that there was a number of witnesses in reference to the Suburban bill. These witnesses went before the grand jury and testified along with the defendant, so that it is not true, as asserted by defendant in the plea in abatement, that no witnesses appeared before the grand jury and gave evidence upon which to base an indictment. (2) The action of the trial court in passing upon applications for a change of venue will not be disturbed unless it be shown that some injury has been inflicted upon defendant or upon the complaining party, or that the trial court has acted corruptly and arbitrarily and without due regard for the wise and considerate discretion that is lodged within his breast. State v. Clevenger, 156 Mo. 194; State v. Tatlow, 136 Mo. 678; State v. Dyer, 139 Mo. 199. The presumption is always in favor of the ruling of the trial court, and in order to justify a reversal, it devolves upon the defendant to show that the overruling of his application for a change of venue operated as a denial of justice. State v. Tatlow, 136 Mo. 682. (3) The State is as much entitled to an impartial jury as the defendant, and is no more bound to submit its case to a juror who is predetermined than is the defendant. State v. Miller, 157 Mo. 76. (4) Where the regular judge has been disqualified and another judge called in to try the case, this latter judge cannot be disqualified. State v. Greenwade, 72 Mo. 298.
On February 1, 1902, there was filed in the circuit court of the city of St. Louis for criminal causes, a true bill wherein the defendant was charged with perjury. The perjury is charged to have been committed before the grand jurors impaneled for the December term, 1901, said grand jurors being the same grand jurors who returned this indictment against the defendant. The indictment is reproduced in full in State v. Faulkner, 175 Mo. 546, 75 S.W. 116; hence there is no necessity to repeat it here; it will suffice to briefly state the essential elements of the offense described in it.
The indictment alleges that Phillip Stock, on or about November 30, 1900, in the presence of John K. Murrell, deposited in a box in the vault of the Lincoln Trust Company $ 75,000, with the understanding between Stock and Murrell that when Council bill 44, which was then pending in the Municipal Assembly of the city of St. Louis, passed the House of Delegates and Council of said city, and was signed by the Mayor, the said sum of $ 75,000 would be turned over to Murrell for his benefit and the benefit of other members of the House of Delegates, which he claimed to represent. That defendant was a member of the House of Delegates. That the grand jurors were investigating that subject, and defendant was called before them to testify as a...
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