State v. Howard

• Decision Date: 02 February 1897
• Citation: 38 S.W. 908,137 Mo. 289
• Parties: The State, Appellant, v. Howard
• Court: Missouri Supreme Court

38 S.W. 908

137 Mo. 289

The State, Appellant, v. Howard

Supreme Court of Missouri, Second Division

February 2, 1897

Appeal from Moniteau Circuit Court.

Affirmed.

R. F Walker, attorney general, and J. W. Hunter, prosecuting attorney, for the state.

(1) A tender of a bribe to a justice of the peace, corruptly to decide a cause not pending, but afterward to be instituted before him, the bribe being declined, and the suit never undertaken, has been held indictable at common law, though not within certain statutes. 2 Bishop's New Crim. Law sec. 89; Barefield v. State, 14 Ala. 603. (2) It has been held that penalties denounced against attempts to bribe "grand and petit jurors" are incurred by the offer of a bribe to a talesman not yet sworn as a juror, the opinion containing the following pertinent language "The rule that penal statutes are to be strictly construed is not to be applied with such unreasonable and technical strictness as to defeat the very purpose of all rules of construction, which is to ascertain the true meaning and intent of the statute." State v. McCrystol, 43 La. 907; State v. Glaudi, 43 La. 914; State v. Williams, 135 Mo. . (3) It has been held that indictment for attempt to bribe a legislative officer need not allege that the matter is pending or within the jurisdiction of the officer. State v. Ellis, 33 N. J. L. 102. (4) An indictment for conspiracy to bribe school trustee to appoint a certain person as teacher need not allege that a vacancy existed which could be filled. Shirecliff v. State, 96 Ind. 369. The same general doctrine is held in Rex v. Vaughan, 4 Burr. 2494; State v. Pearce, 14 Fla. 153. (5) Though formerly disputed, it seems to be well settled that the offer of a bribe to a person not yet subpoenaed as a witness is within the law of attempts to corrupt witnesses. State v. Biebusch, 32 Mo. 276; State v. Keyes, 8 Vt. 57. (6) It is not fatal to this indictment if it does "only charge defendant with an attempt to procure or incite Price Hays to commit an offense upon a contingency that might never happen and in the trial of a contemplated indictment." 2 Bishop's New Crim. Law, sec. 89, and cases cited above; State v. Williams, supra; State v. Keyes, 8 Vt. 57; State v. McCrystol, 43 La. 907.

Moore & Williams, W. M. Williams, and J. E. Hazell for respondent.

(1) The demurrer to the indictment is placed under our practice upon the same basis as a motion to quash. The statutes and the cases speak indiscriminately of demurrers and motions to quash. Section 4112 of the statutes prescribes that: "A demurrer to, or motion to quash an indictment shall distinctly specify the grounds of objection to the indictment; unless it does so it shall be disregarded, nor shall any reason be held to sustain said demurrer, or motion not specified therein." It has been expressly held that a motion to quash must be preserved by a bill of exceptions. State v. Thruston, 83 Mo. 271. The practice in civil cases does not apply. State v. Risley, 72 Mo. 609; State v. Vincent, 91 Mo. 662. The demurrer to an indictment is no more a part of the record proper than a motion to quash. It stands upon a different footing from a demurrer in civil cases. State v. Risley, supra. (2) The indictment is insufficient. It charges no offense. There was no case pending and might never be. The ruling of the trial court was predicated upon the case of State v. Joaquin, 69 Maine, 218, which is the only authority directly in point, that we have been able to find. "An indictment under Maine Revised Statutes, 112, section 2, making it a crime to incite another to commit perjury, which alleges that the act of perjury was to be committed in a suit designed to be brought, but which was not pending at the time of the finding of the indictment and never had been pending, is bad." But if the attempt alleged had been to get another to commit perjury by going before a magistrate or a grand jury for the purpose of inaugurating a criminal proceeding by false swearing, the rule would be different. The case is directly in point and sustains the ruling of the trial court. The judgment below should be affirmed.

OPINION

Burgess, J.

At the March term, 1895, of the circuit court of Moniteau county, the defendant was indicted by the grand jury of said county, for having, on the fifteenth day of February, 1895, at said county, attempted, by the offer of $ 100, to procure one Price Hays to commit perjury as a witness at the trial of defendant, in said circuit court, upon a charge of grand larceny, should an indictment be preferred by the grand jury against him for that offense, upon which charge defendant was then under recognizance for his appearance before the circuit court of said county.

The indictment, leaving off the formal parts, charges:

"That heretofore, to wit, on the 6th day of January, 1895, one Waid F. Howard, on complaint under oath of John R. Weesen charging the said Waid F. Howard with the felony of grand larceny as follows, to wit: That on or about the 4th day of January, 1895, in the county of Moniteau and state of Missouri, Waid F. Howard, five hogs of the value of forty-five dollars of the goods and chattels of one John R. Weesen, then and there being feloniously did steal, take and carry away, said complaint being made before Jacob Scheerer, Esq., a justice of the peace for Willow Fork township in said Moniteau county. That said justice issued a warrant for the arrest of the said Waid F. Howard, which was delivered to the constable of said Willow Fork township in said county, and the said Waid F. Howard was thereupon duly arrested and brought before said justice on the 6th day of January, 1895, and thereupon, on the 9th day of January, 1895, the said Waid F. Howard waived an examination before said justice of the peace, and said justice of the peace thereupon took the recognizance of the said Waid F. Howard, binding him, the said Waid F. Howard, over for his appearance before the circuit court of Moniteau county, to answer any indictment that might be preferred against him, the said Waid F. Howard, and that at and upon the contemplated trial of said cause, in contemplation of an indictment to be returned in said circuit court by the grand jurors of said county, and issue joined thereon, it would become and be a material question whether the said Waid F. Howard had on or about the 4th day of January, 1895, purchased five hogs, and that one Price Hays was then and there a competent person who might by law be sworn or affirmed to testify in said cause.

"And the jurors aforesaid, upon their oaths aforesaid, do further present, that, the said Waid F. Howard, Gus Cole and William Cole, contrived and intending to prevent the due course of law and justice, afterward, to wit, on the 15th day of February, 1895, at the county of Moniteau, state of Missouri did...