State v. Lehman

• Decision Date: 19 May 1903
• Court: Missouri Supreme Court
• Parties: STATE v. LEHMAN.<SMALL><SUP>*</SUP></SMALL>

75 S.W. 139

175 Mo. 619

STATE v. LEHMAN.^*

Supreme Court of Missouri, Division No. 2.

May 19, 1903.

PERJURY — MATERIALITY OF TESTIMONY — INVESTIGATION OF GRAND JURY — MATTER INCRIMINATING WITNESS — INSTRUCTIONS — EVIDENCE — OBJECTION MADE TOO LATE — SPECIAL JURY — METHOD OF DRAWING.

1. Under the statutes on the subject, the defendant in a criminal case has no right to have a special jury drawn by chance.

2. An objection to testimony as relating to a privileged communication comes too late when made by motion to strike out after examination and cross-examination without objection.

3. The fact that at the time certain testimony was given before a grand jury that body had already voted to indict in the case under consideration, though they had not actually done so, but were still considering the case, does not render such testimony immaterial, so as to be incapable of supporting a charge of perjury.

4. The fact that a witness before a grand jury is compelled to testify concerning matters incriminating himself does not excuse him for testifying falsely as to such matters.

5. Where an indictment for perjury alleged that defendant falsely testified that he did not know of a certain deposit, when "in truth and fact he knew of such deposit," an instruction authorizing conviction if defendant had ever heard of the deposit was erroneous.

Appeal from St. Louis Circuit Court; O'Neil Ryan, Judge.

Julius Lehman was convicted of perjury, and appeals. Reversed.

Thos. B. Harvey, Chester H. Krum, Jno. A. Gernez, and Thos. J. Rowe, for appellant. Edward C. Crow, Atty. Gen., C. D. Corum, and Jos. W. Folk, for the State.

GANTT, 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, 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, art. 2, of the Constitution of Missouri, guarantying 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 & 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, 75 S. W. 116 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' 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 did not. 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 did not believe he would be connected with any matter of this kind. He further stated that the bill had not become a law because of the injunction, but that "the boys" were always ready to carry out their part of the contract or words to that effect. No objection was made to this evidence in chief on the ground that it was a privileged communication, or for any other reason, nor at the cross-examination of the witness, until after a further examination by the court and counsel for defendant, and then Judge Harvey moved the court to strike out the testimony of Reiss, because it had been developed on cross-examination of the witness that the facts were learned under circumstances that made the communication privileged. The court overruled this motion, and defendant excepted. Various witnesses testified in behalf of defendant that his general reputation for truth and veracity, honesty and integrity, was good. F. C. Gadsdorf testified he was present when the defendant gave Reiss a check for $400 in payment of his services as his attorney; that Lehman and Reiss were together probably 10 or 15 minutes; that he heard their entire conversation, and nothing whatever was said about the $75,000 being in the Lincoln Trust Company, or anywhere else, or in regard to Philip Stock's connection with that money. Defendant testified in his own behalf, and denied all knowledge of the deposit of the $75,000, and denied in toto the conversation to which Reiss testified. Other specific evidence may be noted in the opinion.

1. The indictment is not open to the objections urged against it of immateriality of the testimony upon which the perjury was assigned and of repugnancy. We have fully discussed both of these propositions in State v. Faulkner, which was argued in connection with this case, and adhere to the conclusions therein reached.

2. The defendant's motion to quash the special venire was properly overruled. Special juries were allowed by the common law, and our Constitution nowhere denies that right. Under the general statute of this state the right to have a special jury drawn by chance is nowhere guarantied. Given the right to a special jury, it was entirely competent for the Legislature to provide the method, so long as the Constitution was not otherwise violated. This whole question was so fully discussed in State ex rel. v. Withrow, 133 Mo. 500, 34 S. W. 245, 36 S. W. 43, we do not feel called upon to again enter upon a defense of the statute. That case was reaffirmed in State v. Hamey, 168 Mo. 167, 67 S. W. 620. The very object of the statute is to allow the officer who makes the selection to exercise his best judgment, instead of drawing at random from the whole list of jurors. As said in State v. Faulkner, there is no conflict between the special act applicable to St. Louis and the general statute of the state. The Revised Statutes of the United States recognize the right to special juries, and provide they shall be selected as provided by the laws of the state in which the jury is required. Rev. St. U. S. § 805 [U. S. Comp. St. 1901, p. 626].

3. As to the evidence of Reiss, we have already fully expressed our views in State v. Faulkner...