State v. Foster

• Decision Date: 30 March 1905
• Citation: 86 S.W. 245,187 Mo. 590
• Parties: STATE ex rel. BUTLER v. FOSTER, Judge.
• Court: Missouri Supreme Court

86 S.W. 245

187 Mo. 590

STATE ex rel. BUTLER v. FOSTER, Judge.

Supreme Court of Missouri.

March 30, 1905.

CRIMINAL LAW—BRIBING WITNESS—DEGREE OF OFFENSE — MISDEMEANOR OR FELONY — STATUTES—COURTS — JURISDICTION — ELEMENT OF OFFENSE.

1. Rev. St. 1899, § 2041, provides that every person who shall by bribery or other means deter a witness from appearing or giving evidence in any cause shall be deemed guilty of a misdemeanor, and that, if the cause be a prosecution for a felony, the person so offending shall be punished by imprisonment in the penitentiary for two years, or in the county jail, or by fine. Section 2393 provides that the term "felony" shall be construed to mean any offense punishable with imprisonment in the penitentiary or with death, and by section 2395 the term "misdemeanor" is to be construed as including every offense punishable only by fine or imprisonment in the county jail, or both. Held, that an offense within the proviso of section 2041 is a misdemeanor, though punishable by imprisonment in the penitentiary.

2. Rev. St. 1899, p. 2538, § 27, excepts from the jurisdiction of the circuit court of St. Louis cases of which the St. Louis court of criminal correction has jurisdiction; and by Rev. St. 1899, § 2544 (Laws 1869, p. 196), the St. Louis court of criminal correction has jurisdiction of all misdemeanors punishable by fine or imprisonment in the county jail, or both; and section 2041 provides that every person who shall deter a witness from giving evidence in a cause shall be guilty of a misdemeanor, provided that, if the case be a prosecution or proceeding against any one for a felony, the punishment of the person offending shall be imprisonment in the penitentiary or in the county jail, or by fine. Held, that a prosecution for an offense within the proviso of section 2041 is within the jurisdiction of the St. Louis circuit court.

3. The bribery of a witness to prevent his appearing and giving evidence before a grand jury which is making a general inquiry as to whether bribery has been committed in connection with the passage of an ordinance by some person or persons unknown to the grand jury is not within Rev. St. 1899, § 2041.

In Banc. Prohibition by the state, on relation of Edward Butler, to restrain Robert M. Foster, as judge of the St. Louis circuit court, from taking further action in a prosecution pending before him in the circuit court of the city of St. Louis on an indictment against relator. Writ awarded

Thos. J. Rowe and Chester H. Krum, for relator. Arthur N. Sager and A. C. Maroney, for respondent.

GANTT, J.

This is an original proceeding in this court to obtain a writ of prohibition against the respondent, as judge of the circuit court, to prevent his taking further cognizance of a certain prosecution pending in his division of the circuit court of the city of St. Louis upon an indictment preferred by the grand jury of the said city against said relator, for the reason alleged that the offense charged in said indictment is a misdemeanor only, and, by the laws of this state governing and limiting the jurisdiction of said circuit court, it has no jurisdiction to try, hear, or determine the said cause. The respondent, in his return, denies that he is proceeding without or in excess of his jurisdiction, and asserts that the offense for which the relator is indicted is a felony, by virtue of the statute which relator is charged to have violated, and that the circuit court over which he presides has full authority to hear and determine the same, and, unless prohibited, he will proceed to try and determine the same. Relator moves for judgment upon the pleadings.

The petition states that on the 22d day of July, 1904, there was presented by the grand jurors of the state of Missouri within and for the body of the city of St. Louis, and filed in the office of the clerk of the circuit court of said city of St. Louis for the hearing of criminal causes, an indictment against the relator, in words and figures following, to wit:

"Circuit Court, City of St. Louis, June Term, 1904.

"State of Missouri, City of St. Louis—ss.: The grand jurors of the state of Missouri, within and for the body of the city of St. Louis, now here in court, duly impaneled, sworn, and charged, upon their oath present:

"That at the city of St. Louis and state of Missouri, and at the June term, A. D. 1902, of the circuit court, city of St. Louis, the grand jurors of the state of Missouri within and for the body of the city of St. Louis were duly impaneled, sworn, and charged (for and during said June term, A. D. 1903, of said circuit court) to diligently inquire and true presentment make, according to their charge, of all offenses against the laws of the state of Missouri committed or triable in the city of St. Louis, of which they had or could obtain legal evidence, and that the said grand jurors were in session during the said June term, A. D. 1902, of said circuit court, and were engaged in the discharge of their duties pursuant to the law, and in accordance with the oath of said grand jurors and the charge of the said circuit court.

"That at said city of St. Louis, and on or about the ninth day of September in the year one thousand nine hundred and two, and during the said June term, A. D. 1902, of the said circuit court, there was a certain matter, cause, and proceeding duly pending before the said grand jurors, of which they then and there had due and lawful jurisdiction under their said oath and charge, to wit, a certain complaint and information that theretofore, on or about the twenty-eighth day of November in the year one thousand eight hundred and ninety-nine (and within three years next before said ninth day of September, A. D. 1902), a certain ordinance was pending before the house of delegates and municipal assembly of the city of St. Louis, known as `Council Bill No. Forty-Four,' and providing for the lighting of certain streets, alleys, and other public places in said city of St. Louis, under the direction and supervision of the board of public improvements of said city, and in accordance with the provisions of the charter of said city, and that on said twenty-eighth day of November, A. D. 1899, a large number of the members of the said house of delegates had severally received a large sum of money as a gift, gratuity, and bribe for their votes, as such members of said house of delegates, for and in favor of the passage of said ordinance by said house of delegates, and that a large sum of money, alleged to be the sum of forty-seven thousand and five hundred dollars, had been paid to said members of the said house of delegates, by some person or persons then unknown to said grand jurors, as a gift, gratuity, and bribe to certain members of said house of delegates for their votes in favor of the passage of said ordinance, and that at the city of St. Louis, and on the said twenty-eighth day of November, A. D. 1899, in the matter of the passage of the said ordinance by the said house of delegates, the offense and felony of bribery had been committed by some person and persons then unknown to said grand jurors; and that the said grand jurors, pursuant to and in accordance with the law and their said oath and charge, were diligently inquiring of and concerning the said alleged offense and felony of bribery.

"That said grand jurors, on or about the said ninth day of September in the year one thousand nine hundred and two, in their said diligent inquiry and in the investigation of said complaint and information, duly required the clerk of the said circuit court, in which said grand jurors were impaneled, to issue subpœnas and other process to bring witnesses to testify before the said grand jurors in the premises; and that, in pursuance of said requirement, the clerk of said court did then and there issue subpœnas and other process to bring witnesses to testify before said grand jurors in the premises.

"That one Charles F. Kelly was then and there a competent witness to testify before said grand jurors in the said matter, cause, and proceeding, and in relation to the said alleged offense and felony of bribery, and then and there had personal knowledge of the same; that the clerk of the said circuit court was duly required by the said grand jurors to issue a subpœna for the said Charles F. Kelly, and, in pursuance of said requirement, did issue a subpœna for the said Charles F. Kelly, commanding him to be and appear and testify before the said grand jurors on or about the said ninth day of September in the year one thousand nine hundred and two; and that the said subpœna was then and there, by the sheriff of the city of St. Louis, duly served upon the said Charles F. Kelly.

"That at the said city of St. Louis, and on or about the said ninth day of September in the year one thousand nine hundred and two, one Edward Butler, well knowing the premises, unlawfully, corruptly, and feloniously, directly and indirectly, did, by bribery, and by the payment of the sum of fifteen thousand dollars, lawful money of the United States, to the said Charles F. Kelly, induce the said Charles F. Kelly to absent himself from the said grand jurors and from the said city of St. Louis and state of Missouri for the purpose of avoiding the giving of his testimony before said grand jurors, and to withhold the evidence of the said Charles F. Kelly in the premises from the said grand jurors, and did then and there, directly and indirectly, by bribery, and by the payment of the said sum of fifteen thousand dollars to said Charles F. Kelly as aforesaid, unlawfully, corruptly, and feloniously deter the said Charles F. Kelly from appearing and giving evidence before said grand jurors in the said cause, matter, and proceeding so pending as aforesaid before said grand jurors: Against the peace and dignity of the state."

It is stated said cause was duly assigned to Judge Foster's division (No. 8) of said circuit court;...