State v. Snyder

• Decision Date: 14 June 1904
• Citation: 182 Mo. 462,82 S.W. 12
• Parties: STATE v. SNYDER.
• Court: Missouri Supreme Court

82 S.W. 12

182 Mo. 462

STATE v. SNYDER.

Supreme Court of Missouri, Division No. 2.

June 14, 1904.

BRIBERY—INDICTMENT—SUFFICIENCY—LIMITATIONS —SPECIAL PLEA—SEPARATE TRIAL— INSTRUCTIONS—REMARKS OF COUNSEL—STATUTE —JUROR—COMPETENCY—EVIDENCE—SUFFICIENCY —APPEAL AND ERROR.

1. The exceptions necessary to remove the bar of limitations for a criminal offense are properly pleaded in the indictment.

2. Under Rev. St. 1899, § 2421, providing that the time during which defendant in a criminal case is "not an inhabitant of or usually resident within" the state is not to be counted in his favor, an indictment seeking to avoid the bar of limitations, by alleging that defendant had not been an inhabitant of or usually resident within the state subsequent to the commission of the alleged offense is not objectionable as pleading in the alternative.

3. A special plea of limitations by defendant in a criminal prosecution does not entitle him to a separate preliminary trial of the plea.

4. In a prosecution for bribery, a juror, after he and the other jurors had been duly tested on their voir dire, accepted by both sides, sworn to try the case, and the circuit attorney had made his opening statement, inquiry of the court whether he was to pass on "merely the guilt or innocence of the defendant"; and when the court replied in the affirmative, he said, "And we have nothing whatever to do with the penalty to be imposed?" To this the court responded, "You will get your instructions when the case is closed." The juror then said, "The only reason is I have expressed an opinion on this line," whereupon the court told the juror he did not care to hear further from him, and that he would get his instructions on the law. The juror was not then challenged, nor did counsel request to examine him; but the trial proceeded till after two witnesses had been examined and a third partially examined, when a special challenge in writing was made by defendant to the juror. Held, that the challenge was too late to be available.

5. The fact that a juror has expressed his views as to fixing the punishment for an offense does not affect his competency.

6. The offense of bribery is within Rev. St. 1899, § 2419, providing that no person shall be punished for any felony unless an indictment for the offense be found within three years.

7. In a prosecution for bribery, it was sought by the state to overcome the bar of limitations, pursuant to Rev. St. 1899, § 2421, providing that the time during which any defendant is not an inhabitant of or usually resident within the state is not to be counted as a part of the limitation in his favor, by alleging in the indictment that he had not been an inhabitant of or usually resident within the state subsequent to the commission of the alleged offense. Evidence was introduced by both sides on the subject—that by the state to establish a residence of defendant in another state, and that by defendant to establish a residence and inhabitancy within the state. Held, that instructions, one of which told the jury that they had nothing to do with the question whether defendant was or was not an inhabitant of the state, and another in effect that the fact that he was an inhabitant of the state and had a home therein was of no significance in finding whether he was usually resident therein, were erroneous, in that, taken together, they were calculated to confuse and mislead the jury.

8. A man does not lose his domicile and residence by going to another state to engage in business, even though he has a permanent business office there, in the absence of an intention to change.

9. Statutes of limitation are to be liberally construed in favor of defendant in a criminal case.

10. Rev. St. 1899, § 2638, provides that the failure of defendant to testify in his own behalf shall not be referred to by any attorney, nor be considered by the court or jury. In a prosecution for bribery, where it was obvious that there could have been no denial of the testimony of a witness for the state, who was the person alleged to have been bribed by defendant, and defendant did not testify in his own behalf, the circuit attorney referred to the story of the witness as worthy of belief, and added that "it had not been denied." He also said to the jury, "Your duty is clear, after all you have heard, after the proof here of the bribery, and there was no witness on the defendant's side to deny it." The court, in sustaining defendant's exceptions to the remarks, directed the jury to disregard the statement, quoted section 2638 in full, and among other things said to the jury that the remarks could have no reference to the defendant. Held, that the circuit attorney's remarks were reversible error, and the statement of the court, though intended to protect the defendant, only served to accentuate the error.

11. In a prosecution for bribery, in which the statute of limitation was relied on as a defense, evidence examined, and held sufficient to justify a verdict of guilty, if defendant was not entitled to the bar of the statute.

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

Robert M. Snyder was convicted of bribery, and appeals. Reversed.

Boyle, Priest & Lehmann, Morton Jourdan, and Wm. Warner, for appellant. The Atty. Gen., Sam B. Jeffries, and Jos. W. Folk, for the State.

GANTT, P. J.

On the 5th day of April, 1902, the defendant was indicted by the grand jury of the city of St. Louis for bribery of an officer, to wit, a member of the municipal assembly of said city. The indictment, omitting caption, is in the words following:

"The grand jurors of the state of Missouri, within and for the body of the city of St. Louis, now here in court duly impaneled, sworn, and charged, upon their oath present: That on (or about) the twenty-second day of March, in the year one thousand eight hundred and ninety-eight, the said city of St. Louis was a municipal corporation in the said state of Missouri, 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 the city of St. Louis, the members whereof were elected by the qualified voters of said city. That one Frederick G. Uthoff was then and there a public officer of said city of St. Louis, to wit, a member of said council and of said municipal assembly, duly elected and qualified, and was then and there acting in the official capacity and character of a member of said council. That there was then and there pending and undetermined before the said municipal assembly and in the said council, and brought before the said council for the consideration, votes, and decision of the members thereof as a legislative body of said city as aforesaid, and so before the said Frederick G. Uthoff in his said official capacity and character as a member of said council, a certain measure, matter, and proceeding, to wit, a certain proposed ordinance of said city of St. Louis (known and designated as `House Bill No. 451,' and which had theretofore been passed by the said house of delegates and certified therefrom to the said council), whereby it was proposed that the said city of St. Louis should grant certain valuable privileges, rights, and franchises to the Central Traction Company of St. Louis (a railroad corporation), to wit, the right to construct, operate, and maintain a single and double track passenger railroad upon, along, and across certain public streets and highways of said city of St. Louis. That it then and there became and was the public official duty of the said Frederick G. Uthoff, as a member of said council and in his official capacity and character as aforesaid, to give his vote upon the said matter, measure, and proceedings, and for or against the said proposed ordinance, without partiality or favor. That then and there one Robert M. Snyder, well knowing the premises, but then and there unlawfully, corruptly, and feloniously devising, contriving, and intending to corruptly influence the opinion, judgment, and vote of the said Frederick G. Uthoff, in his said official capacity and character as a member of said council and as a public officer as aforesaid, for and in favor of the passage and enactment of the said proposed ordinance, so pending and brought before the said council as aforesaid, did then and there unlawfully, corruptly, and feloniously, directly and indirectly, make and enter into a corrupt understanding and agreement with the said Frederick G. Uthoff (as a member of the said council) that upon the payment of a large sum of money, to wit, the sum of fifty thousand dollars, by the said Robert M. Snyder to the said Frederick G. Uthoff, the said Frederick G. Uthoff would and should (as a member of said council and in his official capacity as a public officer as aforesaid) give his vote for and in favor of the passage and enactment of the said proposed ordinance by the said council, and did then and there unlawfully, corruptly, and feloniously (directly and indirectly) give the sum of fifty thousand dollars in money to the said Frederick G. Uthoff (as a member of said council) as a gratuity, reward, and bribe to him, the said Frederick G. Uthoff (as a member of said council), under and in pursuance of the aforesaid corrupt understanding and agreement that the said Frederick G. Uthoff (as a member of the said council) would and should give his vote (as a member of said council) for and in favor of the passage and enactment of the said proposed ordinance by the said council. And that since the twenty-second day of March, in the year one thousand eight hundred and ninety-eight, the said Robert M. Snyder has not been an inhabitant of or usually resident within the state of Missouri. Contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state."

"W. Scott Hancock, Asst. Circuit Atty."

To this indictment the defendant filed a demurrer,...