State v. Naughton

• Decision Date: 08 June 1909
• Parties: THE STATE v. DANIEL E. NAUGHTON, Appellant
• Court: Missouri Supreme Court

120 S.W. 53

221 Mo. 398

THE STATE v. DANIEL E. NAUGHTON, Appellant

Supreme Court of Missouri, Second Division

June 8, 1909

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Reversed and remanded (with directions).

T. J Rowe, Hiram N. Moore, Thos. J. Rowe, Jr., and Henry Rowe for appellant.

(1) Defendant's plea in abatement should have been sustained. U. S. v. Edgerton, 80 F. 374; Boyd v. U.S. 116 U.S. 639; State v. Froseth, 16 Minn. 296; Sharpe Case, 107 N.Y. 477; People v. Haines, 107 N.Y.S. 54; People v. Sellick, 4 N. Y. Crim. Rep. 329; People v. Lauder, 82 Mich. 109; Boone v People, 148 Ill. 440; State v. Duncan, 4 L. R. A. (U.S.) 1144. What of law, of justice, of Constitution, exists in this State if such procedure is permitted to pass without rebuke, censure and condemnation? No country governed by any settled laws, or wherein its citizens are treated with common humanity, could furnish any occurrence of such unparalleled abuse of power. The poorest wretch who crawls on British soil would have in the administration of the law an adamantine shield which would protect him against such a wicked, nefarious and outrageous assault upon his constitutional right; and no officer would dare violate a sacred constitutional right without being visited with swift, severe and condign punishment. The government that would submissively tolerate such an inquisition and forego a direct assault on its Constitution without rebuke, condemnation and censure, would be a disgrace to humanity and civilization. Nowhere under the flag of monarchial England would such procedure be possible. The official daring to usurp such powers would be driven from office in disgrace. (2) The court should have instructed the jury that under the pleadings and proof defendant was not guilty of the offense charged in the indictment. There is no evidence in the case that defendant knew or could have known that Ascher had made a corrupt agreement with Warner and that as a part of the agreement be paid Priesmeyer five hundred dollars. There is not a word of evidence that he knew that Priesmeyer received $ 500 from Ascher, and there is no evidence tending to prove that he received $ 500 from either Priesmeyer or Warner, but on the contrary the only affirmative evidence on that subject offered by the State is to the effect that neither Warner nor Priesmeyer gave him $ 500 on the night of October 18, 1907. It would have been impossible for him to have known that either Warner or Priesmeyer, on October 19, 1907, was guilty of a felony. Can it be contended that because defendant refused to testify before the grand jury he aided Priesmeyer or Warner to avoid arrest, trial, conviction or punishment? The record shows that defendant's conviction is without evidence and that he was without evidence indicted and convicted because he saw fit to exercise a guaranteed constitutional right.

Elliott W. Major, Attorney-General, and Chas. G. Revelle, Assistant Attorney-General, for the State.

(1) The plea does not allege that defendant's evidence was the only evidence before the jury, or that the indictment was based in part upon his evidence, or that the jury was influenced in returning the indictment by any such evidence, or that he testified to any material fact to the case of the prosecution, or that his substantial rights were thereby prejudiced. On the contrary, the plea discloses upon its face that he did not testify to any material fact, but instead refused to testify in most instances, and in this was sustained by the court. The questions to which he did make reply, according to the plea, were answered in such a way as to furnish no evidence against him, but if anything, it was in his favor, and it will not be presumed that the grand jury in disregard of its duty allowed themselves to be influenced to his prejudice. (a) The indictment, which must be considered in determining the sufficiency of the plea, was returned in the usual manner of presenting indictments, with the names of competent witnesses indorsed thereon, defendant's name not appearing on it, and the presumption must be indulged that the indictment was found on competent evidence and in the manner pointed out by law, and this presumption is sufficient to support the regularity of the indictment when it is not, as in this case, rebutted by either the plea or evidence. People v. Hayes, 28 N. Y. (Misc.) 94; State v. Hawks, 56 Minn. 138; State v. Lauder, 82 Mich. 113; Hope v. People, 83 N.Y. 418; Jones v. State, 81 Ala. 79; State v. Grady, 84 Mo. 223; State v. Faulkner, 185 Mo. 696. (b) If by the plea defendant means to assign as cause the violation of his constitutional rights as to being compelled to testify against himself, his plea falls far short of the requirements in both form and substance, and the disclosures of the record do not support the contention. The constitutional guaranty is, not that no person shall be subpoenaed or sworn as a witness in an investigation of his own conduct, but it is that he shall not be compelled to testify -- that is, give criminating evidence against himself. It is not an invasion of his constitutional rights to subpoena him, to require him to appear and be sworn, nor to testify upon any matter that would not criminate him, or would not be against himself. This much the law demands of every person. (c) In his plea defendant alleges the general conclusion that he was compelled, not to testify against or criminate himself, but to testify. This might be true, and still his constitutional rights have not been infringed, and the facts set out in the plea disclose the same condition. After he appears, either voluntarily or in obedience to a subpoena, and is sworn, his constitutional guaranty is then available. He may decline to testify, or like any other personal privilege, he may voluntarily waive it. If he asserts his privilege, "how could there be compulsion or legal restraint when there is no law which could compel him to testify against himself, or punish him for refusing to testify?" Within legal contemplation it is impossible for one to be compelled to testify against himself. The plea discloses that defendant exercised his right and refused to testify against himself, and in this was sustained by the court. The questions which he did answer, according to the plea, did not furnish testimony against himself, or in any manner tend to criminate him on the charge contained in the indictment. Even if he had given such testimony, he voluntarily answered these questions after knowing his rights, and after successfully asserting them on other inquiries, and the court can now but assume that he was not only willing, but desirous to answer. Having thus waived his right, it is too late to complain. State v. Douglas, 1 Mo. 528; People v. King, 28 Cal. 265; State v. Faulkner, 185 Mo. 694; State v. Lauder, 82 Mich. 119; State v. Lynn, 169 Mo. 671. (d) From the questions asked defendant by the grand jury and the evidence adduced on trial, it is evident that the grand jury, while investigating the bribery of Warner and Priesmeyer, first traced the marked money to the hands of defendant, and it was certainly competent and proper to call him to ascertain, if possible, where, when and from whom, and under what circumstances this bribe money came into his possession, they indulging the legal presumption that his connection therewith was innocent. There was no more impropriety in this action than in subpoenaing witness, Wiseman, who received the money from defendant, and who deposited it in the bank. All this was necessary to complete their investigation, and for them to have done less would have been censurable. Wharton, Criminal Pleading and Practice (9 Ed.), p. 36, ch. 4; 1 Chitty, Criminal Law, 318; Ward v. State, 2 Mo. 121; State v. Faulkner, 175 Mo. 570; State v. Lehman, 175 Mo. 627; State v. Hawks, 56 Minn. 139; State v. Turley, 153 Ind. 345. (2) The indictment charges with certainty and particularity all the elements and facts necessary to constitute the crime of accessory after the fact to bribery, and fully informs the defendant of the exact nature and cause of the accusation against him. State v. Miller, 182 Mo. 373; State v. Williams, 136 Mo. 294; State v. Schnettler, 181 Mo. 187; State v. Lehman, 182 Mo. 445. (3) The evidence is amply sufficient to support the verdict of guilty. It shows that defendant had knowledge of the bribery, and with such knowledge received the money and endeavored to secrete it in an effort to aid the principal offenders. His conduct is inconsistent with any other rational theory, and must be attributed to a consciousness of guilt. State v. Miller, 182 Mo. 386; State v. Kosky, 191 Mo. 16; State v. Guild, 149 Mo. 377; State v. Richmond, 186 Mo. 82; State v. Wigger, 196 Mo. 97.

FOX, J. Gantt, P. J., concurs in the opinion on the first proposition, and expresses no opinion as to the second; Burgess, J., concurs in the opinion as rendered.

OPINION

FOX, J.

This cause is now pending in this court upon appeal on the part of the defendant, Daniel E. Naughton, from a judgment of the circuit court of the city of St. Louis, convicting him as accessory after the fact to the commission of a felony.

In the year 1907, Ferd. Warner and Fred. W. Priesmeyer were members of the House of Delegates in the city of St. Louis. The defendant was deputy clerk of said legislative body. On the 18th day of October of that year there was pending before the House of Delegates House Bill No. 212, entitled "An ordinance authorizing Henry Ascher to erect a one-story brick building to be used for an automobile garage on the rear of the premises known as 5011, 5013 and 5015 Delmar avenue, in City Block No. 4857."

The indictment against this defendant is quite lengthy,...