State v. Lehman
| Decision Date | 14 June 1904 |
| Parties | THE STATE v. LEHMAN, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. O'Neill Ryan Judge.
Affirmed.
C. H Krum and T. J. Rowe for appellant.
(1) The court erred in refusing to permit defendant to offer evidence on his application for a change of venue and in denying said application. R. S. 1899, secs. 2576, 2577, 2578 and 2579; State v. Boone, 70 Mo. 649. (2) The indictment is double, because it joins in one count nineteen separate and distinct offenses. If it is not double, it states no offense because there is no such offense as joint bribery based upon a combination of officers to sell their votes. R. S. 1899, secs. 2085, 4158, 4159; U. S. v. Kazinski, Fed. Cas. No. 15508; State v. Hall, 97 N.C. 474; McGhee v. State, 58 Ala. 360; Commonwealth v. Ziert, 5 Lancaster Law Review 138; State v. Rambo, 95 Mo. 462; Shannon v. People, 5 Mich. 98; Commonwealth v. Miller, 2 Parson's Eq. Cases 480; State v. Roulston, 35 Tenn. 107; State v. Wainwright, 29 S.W. 981; Logan v. United States, 125 F. 293; State v. Bridges, 24 Mo. 355; 10 Ency. Pl. and Pr. 532; People v. O'Neal, 109 N.Y. 251; People v. Haehne, 103 N.Y. 182; People v. Sharp, 107 N.Y. 427; State v. Ames, 98 N.W. 190. (3) The order for a special venire, and the manner in which the order was executed, denies to the defendant the equal protection of the law, and is in violation of the 14th amendment to the Constitution of the United States. Sec. 6566, Revised Statutes 1899, is unconstitutional. (4) The evidence shows that John A. Sheridan was neither a de jure nor a de facto member of the House of Delegates. (5) The court did not instruct the jurors on all the questions of law arising in the case which were necessary for their information in giving their verdict. R. S. 1899, sec. 2627. The court should have instructed the jury that before they could take into consideration the acts and declarations of Murrell, they must find that the evidence proved a conspiracy had been formed between Murrell and the other defendants. State v. Kennedy, 75 S.W. 988. (6) The whole record herein made by the circuit attorney and the two judges of the criminal division of the circuit court of the city of St. Louis is in a chaotic state. An inspection of the record will show that it is in a condition of inextricable confusion. No transcript or proceeding was certified from court No. 8 to court No. 9. The original files were carried at the behest of the circuit attorney from one court to another, and record entries were made in both courts in this State. R. S. 1899, p. 2541, secs. 2586, 2587, 2593, 2594. (7) There is no evidence tending to prove that defendant made the agreement alleged in the indictment. There is a material variance between the allegations of the indictment and the proof. The agreement as alleged is not the agreement which the evidence tends to prove. State v. Ames, supra; State v. Meysenburg, 171 Mo. 1. (8) (a) Instruction one is erroneous because it disregards the provisions of section 27, article 6, of the charter of St. Louis and the declaration of law therein is directly in conflict with said section 27, article 6. State ex rel. v. Barlow, 48 Mo. 16. (b) Instruction two has no evidence to support it and consequently is erroneous. There is no evidence tending to prove that T. Ed. Albright had anything to do with the corrupt agreement alleged in the indictment, and if any such agreement was made he was no party to the agreement.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State; Jos. W. Folk of counsel.
(1) In the case of State v. Bruns, 54 Mo. 274, the court held: "An application for a change of venue in a criminal case comes too late when the case is called for trial, no previous notice having been given of the proposed application." State v. Caudle, 174 Mo. 388. There can be no question but what the application in this instance came too late, for the reason that a number of the jurors had been examined upon their voir dire, and the information which the defendant set up as reasons for the change of venue was certainly known to him prior thereto, because he bases the same upon publications and cartoons which had previously appeared in public print. (2) Objection is levelled against the sufficiency of the indictment. This objection, however, can not prevail and the lower court properly overruled the motion to quash. The case of State v. Schnettler, 181 Mo. 173, is sufficient to sustain the indictment in the case at bar. The charging part of the two counts in the indictment here involved are practically the same as that in the Schnettler case. In fact, all of the requisites set out by the court in its opinion in the Schnettler case are covered and complied with in this indictment. The charge that this indictment joins in one count nineteen separate and distinct offenses can not be upheld either in reason or according to the sound principles of law heretofore adjudicated. The authorities cited by defendant in this respect are not in point. All of the defendants are members of the same branch of the city government, and, as contemplated by the indictment, the two houses to which they respectively belong are a unit practically in every respect, so far as the enactment of the ordinance is concerned. They are a unit because they are intended to serve the same purpose and perform the same character of duties. In fact, any ordinance pending before one house necessarily comes before the other branch of the legislative department of the city before it can be enacted into and become a law. Before the indictment should be held illegal on the ground asserted by the defense, he should show some injury resulting to him on account of the joinder. (3) It is a matter of no consequence whether John A. Sheridan was a member of the House of Delegates de jure or de facto. It can not, however, be denied that he was acting as a member and exercising the privileges and duties of the office. The evidence is clear upon this point. He took the oath of office and at the time laid in the indictment was to all intents and purposes a member of the House of Delegates. The question as to whether Sheridan was or was not a member is a matter of no consequence so far as the determination of the issues in the case at bar are involved. (4) It was not necessary for the court to instruct the jury that a conspiracy existed between the various members of the House of Delegates and the city council. The evidence in this case discloses that at all times stated by Murrell in his testimony with reference to the agreement between defendant and himself as the agent of Butler, the defendant was present. Under such circumstances, declarations made by a party to the crime are admissible against the accused, and become declarations of the accused himself, because agreed to at the time. (5) The evidence proves beyond question that defendant made the agreement alleged in the indictment. There is absolutely no variance between the allegations of the indictment and the proof. The authorities cited by defendant are not in point.
The trial and conviction in this cause were based upon the first count of the indictment; it is as follows:
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