State v. Meysenburg

Citation71 S.W. 229,171 Mo. 1
PartiesSTATE v. MEYSENBURG.
Decision Date16 December 1902
CourtUnited States State Supreme Court of Missouri

1. An indictment against an assemblyman for receiving a bribe, which charged that he took it with the understanding that unless and until it was paid he would "oppose, resist, withstand, thwart, and defeat" the passage of a certain ordinance, and which did not specify how or in what manner he was to oppose, resist, etc., was bad, as stating a mere conclusion. Per Sherwood and Burgess, JJ.

2. Rev. St. 1899, § 2085, provides that any public officer of the state or any county or city who shall accept any gift, etc., "under any agreement that his vote, opinion, judgment or decision shall be given for any particular person, or in any particular manner, or upon any particular side, or more favorable to one side than the other, in any question, election, matter, cause or proceeding which may be pending or brought before him in his official capacity, or that he shall neglect or omit to perform any official duty, or perform the same with partiality or favor, or otherwise than according to law," shall be guilty of bribery. An indictment against an assemblyman charged that he received a sum of money with the understanding that, "unless and until the said sum" was paid, he would "oppose, resist, withstand, thwart, and defeat" the passage of a certain ordinance. Held not to charge a crime under the statute.

3. An averment in an indictment against an assemblyman for receiving a bribe, charging that the money received by him was "the pretended and ostensible price, consideration, and value of certain worthless and unmarketable shares of stock," was a mere matter of evidence. Per Sherwood and Burgess, JJ.

4. The insufficiency of the indictment was available for the first time in the supreme court.

5. In a prosecution of an assemblyman for receiving a bribe, it was charged that the other party paid him $9,000 for worthless stock. The other party, after testifying for the state concerning the value of the stock, "No; I do not know anything about it," was permitted to state, "I do not know. I considered them of no value." He also testified that shortly before the transaction with defendant a third party had sold stock in the same company for $10 a share. Held error to refuse charges that, if defendant owned the stock, he could sell it to the other party, notwithstanding his membership in the assembly, and that if he believed his stock was of the value he received, etc., he was not guilty of any corrupt purpose; the testimony recited affording a sufficient basis therefor.

6. It was a material issue whether or not defendant "made any agreement as to what he should or would do after receiving the money."

7. In a prosecution for receiving a bribe, the party giving the bribe having testified for the state, and having been treated as an accomplice by it, it was error for the court not to charge as to the caution with which his testimony should be regarded. Per Sherwood and Burgess, JJ.

8. In a prosecution for receiving a bribe, it was error to permit the prosecuting attorney to ask the jurors on their voir dire if they knew certain other persons (naming them) then under indictment for bribery in the same court.

9. Where an indictment for receiving a bribe charged that $9,000, lawful money of the United States, was paid defendant, and the evidence was that he received a cashier's check for that amount, but the objection was not urged when the check was introduced, the variance was not fatal. Per Gantt and Burgess, JJ.

10. Proof that defendant actually received $33.72 less than $9,000 would not be a material variance. Per Gantt and Burgess, JJ.

11. It appearing that a third party was spokesman when the money was paid to defendant, and when the propositions which he had carried between the parties were ratified by both, it was competent to show that, on information conveyed by him to the party giving the bribe, the latter bought a cashier's check and went to defendant's office. Per Gantt and Burgess, JJ.

12. It was not competent to admit evidence of a deal wherein the third party and other members of the assembly were to receive a certain sum from the alleged bribe giver, defendant not being a party thereto. Per Gantt and Burgess, JJ.

13. It was competent to show that defendant suggested and procured a certain amendment of the report of the committee to which the ordinance was referred, by adding the words "without recommendation." Per Gantt and Burgess, JJ.

14. It was competent to prove that the alleged bribe giver told defendant that he regarded the stocks which defendant gave him in return for the money as worthless and of no value. Per Gantt and Burgess, JJ.

15. It was competent to show the alleged bribe giver's employment to lobby the ordinance through the assembly, and the furnishing of money to him by the party employing him. Per Gantt and Burgess, JJ.

16. Proof of the value of the stock given by defendant to the alleged bribe giver in return for the money paid him was competent, as tending to show whether it constituted the true consideration for the money, or was a mere pretense and show.

17. Testimony that an attorney had advised defendant, as a member of the assembly, that it was proper for him to exact of the alleged bribe givers payment of a litigated claim against them, as the price for his cessation of opposition to the passage of the ordinance, was inadmissible. Per Gantt and Burgess, JJ.

18. It was competent to show that, though the stock given by defendant to the alleged bribe giver in return for the money paid him had no marketable value as such, it had, owing to the value of the assets of the company, a real value.

19. The amount which another stockholder in the same company was able to get for his shares, as a compromise of a threatened litigation against the company or its directors, was not admissible to show the value of defendant's shares. Per Gantt and Burgess, JJ.

20. Evidence that the bill to secure the passage of which it was claimed the bribe was given was pending from October 9, 1900, to February 8, 1901, was competent to show that it was pending at the time of the transactions between defendant and the alleged bribe giver, on February 2, 1901. Per Gantt and Burgess, JJ.

Appeal from St. Louis circuit court; Walter B. Douglas, Judge.

Emil A. Meysenburg was convicted of receiving a bribe, and appeals. Reversed.

Boyle, Priest & Lehmann, Chester H. Krum, and Morton Jourdan, for appellant. The Attorney General and Jos. W. Folk, for the State.

SHERWOOD, J.

1. Receiving a bribe was the charge in the indictment. Defendant, being tried, was convicted, and his punishment assessed at imprisonment in the penitentiary for the term of three years. Judgment went and sentence passed accordingly, from which he has appealed to this court, alleging numerous errors as having occurred in the trial court.

The indictment, filed on February 1, 1902, omitting caption, reads this way:

"That on (or about) the thirtieth day of January in the year one thousand nine hundred and one the said city of St. Louis was a municipal corporation in the state of Missouri aforesaid, and that the legislative power of the said city of St. Louis was by law vested in a council and a house of delegates, styled the `Municipal Assembly of St. Louis,' the members whereof were elected by the citizens of St. Louis. That at the said city of St. Louis, and on (or about) the said thirtieth day of January, one thousand nine hundred and one, one Emil A. Meysenburg was a public officer of said city of St. Louis, to wit, a member of the said council and of the said municipal assembly of St. Louis, duly elected and qualified, and was then and there acting in the official capacity and character of a member of said council and of the said municipal assembly of St. Louis. That there was then and there pending and undetermined before the said municipal assembly, for the consideration, opinion, judgment, and decision of the members thereof in the said council, and before the said Emil A. Meysenburg in his said official capacity and character as a member of said council and said municipal assembly of St. Louis, a certain measure, matter, cause, and proceeding in the nature of a proposed ordinance of the said city of St. Louis (designated and known as `Council Bill No. 44'), wherein and whereby it was proposed that the said city of St. Louis (by ordinance duly passed and enacted by the said municipal assembly, and approved by the mayor of said city) should grant certain valuable rights, privileges, and franchises to the St. Louis and Suburban Railway Company (a railroad corporation), and to permit the said railway company (among other things) to lay its railroad tracks and run its railroad cars in, upon, and over certain designated public streets and highways of said city of St. Louis. That it then and there became and was the public and official duty of the said Emil A. Meysenburg, as a member of said council, and in his official capacity and character as aforesaid, to give his vote, opinion, judgment, and decision upon the said measure, matter, cause, and proceeding, and for or against the said proposed ordinance, without partiality or favor."

(a) "That he, the said Emil A. Meysenburg, well knowing the premises, but unlawfully and corruptly devising, contriving, scheming, and intending to prostitute, betray, and abuse his trust, and to violate his duty (as aforesaid) as a member of said council and of the municipal assembly, did, at the said city of St. Louis, and on (or about) the said thirtieth day of January, in the year one thousand nine hundred and one, unlawfully, corruptly, and feloniously, directly and indirectly, solicit, propose, procure, accept, and receive a certain gift, consideration, gratuity, and reward, under...

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