State v. Murphy
| Decision Date | 25 May 1928 |
| Docket Number | 27790 |
| Citation | 6 S.W.2d 877,320 Mo. 219 |
| Parties | The State v. William Murphy, Appellant |
| Court | Missouri Supreme Court |
Appeal from Wright Circuit Court; Hon. C. H. Skinker Judge.
Affirmed.
Don O. Vernon, L. C. Mayfield and Page & Barrett for appellant.
(1) Upon the filing of a motion for a continuance which sets out the absence of a material witness and that the testimony is unobtainable, except by this witness and the probability of procuring the witness, a continuance may be granted to either party for a good cause shown. Secs. 3996, 3997, R. S. 1919. Where the application for a continuance shows the importance of evidence absent witnesses would have testified to had they been present, and diligence in trying to procure the witnesses, continuance should have been granted. State v Hesterly, 182 Mo. 16. Refusal to grant a continuance to one showing sufficient cause for it has uniformly been considered by the court a sufficient ground for reversal. McKay v. State, 12 Mo. 422. If defendant's application for a continuance is properly made and material witnesses are absent and unobtainable, it is error to refuse a continuance. State v. Dewitt, 152 Mo. 76. Where there was no delay in obtaining material witnesses after a change of venue was granted, and the application was in proper form it is error to refuse a continuance. State v Wade, 270 S.W. 301. (2) What others have offered for property is evidence of its value. 1 Wigmore on Evidence, sec. 463. Evidence of the value of goods is admissible to show fraudulent intent. Therefore it should also be admissible to show lack of fraudulent intent. Wood v. United States, 16 Pet. 342, 10 L.Ed. 987; Bottomely v. United States, 1 Story, 135. In a bribery case value of property is admissible to show there was no corrupt motive. State v. Meysenburg, 171 Mo. 1; 1 Jones, Comm. on Evidence, sec. 169. (3) The case was submitted on two counts, and the jury were not told they could convict on only one, and two separate felonies were charged in the indictment. This was error. State v. Brown, 296 S.W. 127; State v. Link, 286 S.W. 12; State v. Carrigan, 210 Mo. 351; State v. Guye, 252 S.W. 955; State v. Morelock, 291 S.W. 1078. The State should elect on which count it will stand, and defendant cannot waive that. State v. Preslar, 290 S.W. 142. (4) Active measures to persuade the accused and induce the commission of a crime, by the party injured, or those acting for him duly authorized in the premises, constitute a complete defense. Connor v. People, 18 Colo. 373, 25 L. R. A. 341. Where the defense is entrapment and the evidence consists of testimony by officers joining with defendants for the alleged purpose of detecting their crime, to warrant a conviction the officers must have had reasonable suspicion that defendants were engaged in the commission of a crime, or were about to be so charged, or the original suggestion or initiative must have come for the perpetrators. United States v. Certain Quantities of Intoxicating Liquors, 290 F. 824. One who had no intention to commit a crime, but was lured into a crime by officers of the law, cannot be convicted. Ritter v. United States, 293 F. 187; Woo Wai v. United States, 223 F. 412; Cermak v. United States, 4 F.2d 98. A defendant cannot be convicted of a crime which was provoked or induced by a Government officer or agent, and which otherwise would not have been committed. United States v. Lynch, 256 F. 982. (5) Before there can be a sale there must be an intent to sell and an intent to purchase, a vendee and a vendor. Palmer v. Jordon Mach. Co., 186 F. 496; In re Allen, 183 F. 172. A county court is a court of record and must keep a full report of their proceedings. Sec. 2323, R. S. 1919. Action of a county court must be shown by its records, and oral testimony is inadmissible to prove the making of a contract with the county. In this case was no proof of sale by record of the court. Dennison v. County of St. Louis, 33 Mo. 168; Johnson County v. Wood, 84 Mo. 489.
North T. Gentry, Attorney-General, and Claud Curtis, Special Assistant Attorney-General, for respondent.
(1) The trial court committed no error in overruling defendant's application for a continuance. This matter is largely within the discretion of the lower court and in the absence of abuse of that discretion the trial court's action will stand. State v. Cockriel, 285 S.W. 443; State v. Tracy, 294 Mo. 372; State v. Harrison, 285 S.W. 85; State v. Salts, 263 Mo. 314; State v. Cain, 247 Mo. 700. Said motion did not state facts to show that due diligence had been exercised by the defendant to have present in court the witnesses of whose absence he was complaining. State v. Wilson, 242 S.W. 886; State v. Salts, 263 Mo. 304; State v. Harrison, 285 S.W. 83. Furthermore, where there is no probability that if the absent witness had appeared and testified it would have had any effect on the result of the trial, the trial court commits no error in overruling an application for continuance. State v. Temple, 194 Mo. 251. (2) Where two offenses arise out of the same transaction, and are so far cognate as that an acquittal or a conviction of one would be a bar to a trial for another, a joinder is proper, the submission of both counts to the jury is proper, and where defendant is convicted on only one count his rights have not been prejudiced. State v. Young, 266 Mo. 723; State v. Carragin, 210 Mo. 351; State v. Christian, 253 Mo. 382; State v. Cannon, 232 Mo. 205; State v. Brown, 296 S.W. 127. Where defendant is charged in an indictment containing two counts, each count charging a felony crime, no reversible error is committed by submitting both counts to the jury provided defendant is convicted on only one count. State v. Gholson, 292 S.W. 28; State v. Sharpless, 212 Mo. 203; State v. Morris, 263 Mo. 355. (3) The defense of entrapment will not defeat a prosecution where the evidence shows that the criminal design originated with the defendant and that he willingly committed the crime for which he is being tried. State v. Seidler, 267 S.W. 424; State v. Feldman, 150 Mo.App. 120; State v. Lucas, 94 Mo.App. 120; State v. Quinn, 170 Mo. 176; State v. Chappell, 179 Mo. 324; State v. Richie, 180 S.W. 2; State v. Cummings, 248 Mo. 509. The trial court committed no error by excluding evidence offered by the defendant to prove the value of safes. What was the value of said safes or whether there was an actual sale of the same was not an essential element of the crime for which defendant was convicted. If defendant received a reward for voting a certain way in a matter or proceeding pending before him in his official capacity he is guilty of having received a bribe and the value of the safes in question have nothing to do with the question as to whether defendant accepted a bribe. State v. Lehman, 182 Mo. 459; State v. Butler, 178 Mo. 272; Sec. 3178, R. S. 1919.
White, J. All concur, Walker, J., in the result.
March fourth, 1926, a jury found the defendant guilty of accepting a bribe, and his punishment was assessed at imprisonment in the State Penitentiary for two years. Judgment was rendered accordingly, and he appealed.
The specific charge against defendant was that on a certain day in November, 1925, while Presiding Judge of the County Court of Laclede County, he corruptly and feloniously made an agreement with one Max Lander, alias Milton Lamb, for a consideration of $ 150, to "cast and express his official vote, opinion, judgment and decision," in his official capacity as Presiding Judge of the County Court of Laclede County, in favor of a proposal of the said Lander in relation to the purchase of certain cabinet safes, described in the indictment, and in pursuance of that agreement the defendant did unlawfully and feloniously accept from the said Lander, alias Lamb, the sum of one hundred and fifty dollars as the bribe, etc., and did in the manner agreed upon cast his vote, judgment and decision as presiding member of the county court. The indictment is of great length and set out in two counts, each describing practically the same offense. The indictment was returned by a grand jury in Laclede County. A change of venue was awarded on the application of defendant to Wright County, where the case was tried.
The circumstances giving rise to the prosecution were these: Homer Davenport, Probate Judge of Laclede County, went to St. Louis to the Secret Service Agency of E. H. Hargrave for the purpose of consulting Hargrave regarding supposed graft in the County Court of Laclede County. He met Mr. Hargrave and subsequently had correspondence with him, with the result that a detective was sent out from St. Louis to be paid ten dollars and expenses for his work. Later Max Lander came to Lebanon from St. Louis and registered at the hotel as Milton Lamb. He had an interview with Davenport in regard to the purpose of his coming, and Davenport prepared him by putting in his possession $ 150 in marked bills.
Three safes owned by Laclede County were for sale. The new court house had been provided with vaults so that safes were no longer needed; the case turned upon negotiations for the sale of those safes.
Max Lander testified for the State that he arrived in Lebanon November 5, 1925. He went to the court house and met the county collector and county clerk, and was introduced to the judges of the county court. He told the judges of the county court that he understood some safes were for sale, and at his request they showed them to him. The price which the judges had fixed upon the safes was about $ 1360, being the original cost price with twenty-five per cent off. Lander said that he would have to think the thing over and probably would make an offer.
After Lander had finished his conversation with...
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