State v. Lehman
| Decision Date | 09 June 1903 |
| Citation | 175 Mo. 619 |
| Court | Missouri Supreme Court |
| Parties | THE STATE v. LEHMAN, Appellant. |
1. Special Juries: DRAWN BY LOT. The right to have a special jury drawn by lot is nowhere guaranteed by the statutes of Missouri. The very object of the statute authorizing a special jury is to allow the officer who selects the jurors to exercise his special judgment instead of drawing at random from the whole list of jurors.
2. Evidence: PRIVILEGED COMMUNICATION TO LAWYER. A communication made to a lawyer in an effort to enlist his services in inducing a briber to disgorge a certain fund put up by him as the price of certain legislation, is not a privileged communication, and he is not incompetent to testify the facts communicated to him by defendant in that connection.
3. —: EXCLUSION: NO OBJECTION. After a witness has testified for the State and defendant has cross-examined him, without objection, it is too late to exclude his testimony as incompetent.
4. Perjury: AFTER INDICTMENT IN MAIN CHARGE. The examination of a witness concerning his knowledge of a certain bribery is rendered none the less material, and his false answers are none the less perjury, because that examination was made after the grand jury had voted to return, but had not returned, indictments against the two main offenders in that crime. It was the duty of the grand jury to ascertain all the competent witnesses to the bribery, and their inquiries were not shut off by voting to return the indictments.
5. —: COLLATERAL EVIDENCE. Any evidence that sheds light on the motive for the crime charged, is competent. For instance, where defendant is being tried for perjury, for falsely swearing he knew nothing of a bribery transaction between a certain member of the Municipal Assembly of which he was a member and certain street railway officials who desired a franchise, it is competent to prove the existence of the corruption fund, and the pending of the franchise ordinance for which the bribe was put up, and the fact that the other house of the assembly was enjoined from passing it, and that therefore the bribery agreement failed.
6. —: SELF-INCRIMINATION: GRAND JURY: EXAMINATION OF SUSPECTS. It is against positive constitutional guaranties and conflicts with man's instincts of fairness, right and propriety, that the person whose conduct is under investigation by a grand jury should himself be called as a witness without being advised that his conduct is being investigated. Nor can any incriminating evidence thus obtained from him be used against him on his trial for a crime which his evidence in that way obtained tends to prove. But because the grand jury or even the court erroneously requires him to testify concerning a conspiracy between himself and other confederates to commit a crime, he is none the less guilty of willful and corrupt perjury if he testifies falsely. His course is to plead the constitutional right not to be compelled to testify against himself.
7. —: PERJURY: BRIBERY: CONSPIRACY. A witness before a grand jury which is investigating a charge of bribery against nineteen members of a city council, is not justified or excused for falsely swearing he knew nothing about any of the facts which would have proved that said nineteen members, himself being one of them, had entered into a conspiracy to sell their votes for a franchise to a street railway; nor were his false answers any the less perjury, because an attempt was made at the trial to prove that his testimony was perjured by showing such conspiracy to exist and that he was a confederate therein. He should have claimed his right under the Constitution which does not permit a witness to be compelled to testify against himself in a criminal cause.
8. —: —: COMPULSORY TESTIMONY. Because a witness is wrongfully compelled to testify concerning a crime in which he participated, it is neither true nor sound to say that he is thereby compelled to commit perjury.
9. —: —: —: ADMISSIONS BEFORE GRAND JURY. If a witness, because of his connection with the crime being investigated by the grand jury, is wrongfully compelled to testify, his admissions against himself can not be used against him on a subsequent trial for the offense about which he was compelled to testify.
10. —: HABEAS CORPUS. A witness who is aware that he is suspected of being connected with the crime then being investigated by the grand jury can refuse to testify in furtherance of that investigation on the ground that his testimony would tend to incriminate him, and if the jury persists and he is committed by the court, he may be released under habeas corpus.
11. —: KNOWING AND HEARING: INSTRUCTION. Where a defendant is indicted for falsely swearing he did not know of the existence of a certain bribery corruption fund, the instructions should not permit him to be convicted if "he had ever heard" of such fund.
Appeal from St. Louis City Circuit Court.—Hon. O'Neill Ryan, Judge.
REVERSED AND REMANDED.
Thomas B. Harvey for appellant; C. H. Krum, Thomas J. Rowe and John A. Gernes of counsel.
Edward C. Crow, Attorney-General, C. D. Corum and Jos. W. Folk for the State.
GANTT, P. J.—At the December term, 1901, of the circuit court of the city of St. Louis, in Division No. 8 thereof, the grand jury of said city preferred an indictment against the defendant, Julius Lehman, for perjury.
As the said indictment is, word for word, in the same form as the indictment against Harry A. Faulkner, in which an opinion has been handed down on this day, save and except the name of the defendant is substituted for that of said Faulkner, it is deemed unnecessary to set it out in full. The defendant moved to quash the same on the same grounds practically that were urged in the argument of these causes in this court and the motion was overruled and defendant excepted.
A special venire was ordered on the application of the State, and on its return the defendant moved to quash it because not summoned and selected according to law, and because contrary to the general spirit of our laws, and in violation of section 22 of article 2 of the Constitution of Missouri, guaranteeing an impartial jury, etc. On the hearing of this motion it was admitted the jury commissioner selected the jurors from the general petit jury list, and had no separate list of jurors of more than ordinary intelligence, and they were not selected by lot or chance, but the commissioner exercised his judgment in making the selection from the general list of jurors subject to jury duty in said city.
The court overruled this motion and defendant excepted. On the trial of this defendant substantially the same evidence was introduced by the State as to the organization of the Municipal Assembly of St. Louis; that John K. Murrell and defendant were members of the House of Delegates in 1900 and 1901, and the pendency in the Assembly of an ordinance known as Council Bill No. 44, giving and granting certain privileges and franchises to the St. Louis and Suburban Railway Company. The evidence as to the proposition of Murrell to Stock, who represented the Suburban in the matter of getting the franchise, and the corrupt agreement by which Murrell agreed that if Stock would deposit $75,000 in the Lincoln Trust Company to be paid Murrell and other members of the House of Delegates for whom he claimed to be acting when the ordinance was passed and signed by the mayor, was shown by the same evidence as that detailed in the opinion in State v. Faulkner. The evidence as to the deposit by Stock and Murrell of the $75,000 in the said trust company was the same also.
After the ordinance passed the Council and was sent to the House of Delegates an injunction was issued by the circuit court of the city of St. Louis enjoining the House of Delegates from taking any action thereon. While this injunction was still pending the House of Delegates expired by limitation of law, a new House being elected.
The evidence tended to show, however, that Murrell and defendant and other members of the old House whose names were not designated save as "the boys," insisted that they were entitled to the $75,000, which claim Stock repudiated. It was in evidence that Murrell then about the 18th of January, 1902, proposed to accept one-half of the sum, and Stock declined to do more than pay any expenses Murrell had incurred in the matter, whereupon Murrell said to him, "The grand jury will take hold of it."
In April or May, 1902, the defendant, Lehman, a member of the House of Delegates, had a conversation with Paul Reiss, according to the evidence of Reiss, who was also a member of the House of Delegates. Reiss was a lawyer, with an office in the Wainwright building in St. Louis, and prior to this conversation had been retained by defendant in some insurance litigation and some other minor matters. After settling Reiss's fee for the insurance suits, according to Reiss, the defendant, Lehman, said to him:
"By the way, I want to consult you concerning a matter which interests the boys of the old House; it is a matter a lawyer ought to take hold of, and now you are a member of the House, you are best qualified to take this matter up." Thereupon he asked Reiss if he knew one Philip Stock. Reiss told him he didn't. Lehman said, "You must know him, he is a prominent brewer with offices in the Lincoln Trust Building." Reiss told him he did not know Philip Stock, a brewer; that he was positive that no brewer had an office there, but that he did know Philip Stock, and defendant said, "That must be the man." He then proceeded to tell Reiss that said Stock had a key to a box in the Lincoln Trust Company, which he said contained $75,000, and this was to go to "the boys" when the Suburban bill had become a law, and asked Reiss whether or not he would see Stock and bring about a settlement concerning the sum. Reiss told him he would not act in the matter, and further, he thought he must be mistaken in the party, Stock; that he knew him and...
To continue reading
Request your trial