State v. Snyder

• Decision Date: 14 June 1904
• Parties: THE STATE v. SNYDER, Appellant
• Court: Missouri Supreme Court

82 S.W. 12

182 Mo. 462

THE STATE v. SNYDER, Appellant

Supreme Court of Missouri, Second Division

June 14, 1904

Appeal from St. Louis City Circuit Court. -- Hon. O'Neill Ryan Judge.

Reversed and remanded.

Boyle Priest & Lehmann, Morton Jourdan and William Warner for appellant.

(1) The indictment, in its charge that since the twenty-second day of March, 1898, defendant had not been an inhabitant of or usually resident within the State of Missouri, states a legal conclusion and not primary facts, and is indefinite and uncertain as to whether the defendant is charged with not being an inhabitant of the State of Missouri during that period, or is charged with not being usually resident within the State during that period. R. S. 1899, secs. 2419 and 2421; 21 Ency. Plead. and Prac., 649; Bishop on Statutory Crimes, sec. 1043; State v. Carver, 12 R. S. 285; Com. v. Hadcraft, 6 Bush (Ky.) 91; State v Burns, 20 N.H. 550; Wharton, Crim. Plead. and Prac., 161. (2) Defendant was entitled to a trial upon his plea in bar setting up the statute of limitations. R. S. 1899, sec. 2419; U. S. v. Cook, 17 Wall. 168; U. S. v. White, 28 Fed. Cas. 568; Thompson v. State, 54 Miss. 740; People v. Roe, 5 Park. Crim. Cas. 231; State v. Thrasher, 7 A. 814; Kelly's Crim. Law and Prac., sec. 124; Wharton's Crim. Plead. and Prac., sec. 419; State v. Huffman, 136 Mo. 58; State v. Hatcher, 136 Mo. 642; State v. Laughlin, 168 Mo. 415; State v. Wear, 145 Mo. 162; Norton v. U.S. 91 U.S. 566. (3) Juror Anderson, after the jury had been impaneled, disclosed an opinion respecting the case, not indicated on his voir dire, and the challenge to him should have been sustained. (4) The evidence tends only to show an attempt at bribery, and the verdict and judgment of guilty of bribery is therefore erroneous. (5) Upon the whole testimony, it was shown beyond controversy that at the time of the commission of the offense and until the time of the trial, defendant was an inhabitant of and usually resident within the State of Missouri, and the court should have instructed accordingly. (6) Defendant was entitled to have the question of his residence determined independently of and before the question of his guilt was considered by the jury. (7) Defendant having been an inhabitant and resident of Kansas City, the presumption was that he continued to so be until shown to have established a residence elsewhere. Hatch v. Lowell, 6 Kan.App. 645; Chaine v. Wilson, 1 Bosw. (N. Y.) 673. (8) The burden of proof was on the State to show that defendant was not an inhabitant or resident of the State. State v. Schuerman, 70 Mo.App. 518; Worrall v. State, 27 Fla. 362; Weinett v. State, 35 Fla. 229; State v. Snow, 30 La. Ann. 401; State v. Anderson, 57 La. Ann. 1181; Loller v. Abernathy, 37 Mo. 196; R. S. 1899, sec. 4160; Blashfield on Instructions, secs. 346-348; Simpson v. Shoe Co., 70 S.W. 305; Watkins v. Martin, 65 S.W. 103; Wood's Limitations (3) Ed.), 116. (9) The statute of limitations is not suspended so long as a person is an inhabitant of or usually resident within the State. The terms "inhabitant" and "usually resident" are synonymous, but if they are to be construed as distinctive and different the statute runs on under either alternative. Graham v. Com., 51 Pa. St. 255; People v. McCausey, 65 Mich. 72; Com. v. Woodward, 1 Chest. Co. Rep. 102; People v. Roe, 5 Park. Crim. Rep. 231; 21 Am. and Eng. Ency. of Law, 936; Kennedy v. Ryall, 67 N. T. 386; Rex v. Adlard, 4 B. & C. 772; Mead v. Carroll, C. D. C. 338; Church v. Powell, 49 Me. 367; Sears v. Boston, 42 Mass. 242; Walker v. Walker, 1 Mo.App. 404; Chaine v. Wilson, 1 Bosw. 673; McConnell v. Kelley, 138 Mass. 372; Grant v. Dolliver, 11 Conn. 234; Cunningham v. Maund, 2 Ga. 7; Lee v. Stanley, 9 How. Prac. 272; Merrill v. Morrisett, 76 Ala. 437; State v. Ross, 23 N. J. L. 527; Blucher v. Milsted, 31 Tex. 621; Com. v. Hadcraft, 6 Bush (Ky.) 91. (10) By its instructions upon the question of limitations the court unfairly commented on the testimony, assumed facts on behalf of the State which had not been proven, and in presenting the case on behalf of defendant omitted important evidentiary presumptions and material facts which had been conclusively proven. Edgerton v. Wachter, 4 N.W. 85; McCord v. Woodhull, 27 How. Prac. 54; Bennett v. Cook, 47 N.Y. 537; State v. Hobler, 149 Mo. 478; State v. Rutherford, 152 Mo. 124; Kerwin v. Sabin, 36 Am. St. Rep. 645. (11) The prosecuting attorney commented to the jury upon the fact that defendant had not testified, and the court was drawn by conduct of the prosecutor also to comment upon it. State v. Weaver, 165 Mo. 13; Wilson v. U.S. 149 U.S. 60; McKnight v. U.S. 115 F. 972; Jackson v. U.S. 102 F. 473; Showalter v. State, 84 Ind. 562; State v. Holmes, 68 N.W. 11; State v. Moxley, 102 Mo. 374; Dawson v. State, 24 S.W. 414; Brazell v. State, 26 S.W. 723; State v. Granger, 77 N.W. 336; Baker v. State, 25 So. 238; State v. Deves, 61 P. 511; People v. Payne, 91 N.W. 739.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State; Jos. W. Folk of counsel.

(1) It is asserted that the indictment charges that since the twenty-second day of March, 1898, the defendant had not been an inhabitant of or usually resident within the State of Missouri. It is contended that this charge is more in the shape of a legal conclusion than of primary facts, and that it is indefinite and uncertain as to whether the defendant is charged with not being an inhabitant of the State of Missouri during that period or is charged with not being usually resident within the State during that period. So far as this particular fact is concerned, it makes no difference in criminal prosecutions whether the indictment alleges failure in the running of the statute of limitations or not. The indictment would have been good had the prosecutor eliminated therefrom this statutory negation. State v. Gill, 33 Ark. 129; State v. Hussy, 7 Ia. 409; Thompson v. State, 54 Miss. 740; State v. Watts, 10 Il. (N. C.) 369; Blackburn v. Commonwealth, 124 Pa. St. 578. If, therefore, it be unnecessary to allege such fact in the indictment, the fact that it is alleged must be treated as surplusage, so that none of the substantial rights of the defendant are involved because of the ill manner in which the allegation is charged. These terms being used as synonyms, no injustice can be done defendant and no error was committed by the court in refusing to quash the indictment on that ground. State v. Moore, 61 Mo. 278; State v. Ellis, 4 Mo. 474; Brown v. Com., 8 Mass. 59. It may be true that the trial court took the view, in the presentation of the matter to him, that the terms were not synonymous and meant entirely different things, and that the circuit attorney also assumed the same position. This, however, would be an error that would not in any way affect the substantial rights of the defendant. It would be an error of an immaterial character; one which in no way discredited defendant's rights. (2) Defendant insists that he was entitled to a trial upon his plea in bar, setting up the statute of limitations. The court submitted the issues of fact contained in the plea in bar, but held that it was proper to submit the questions raised in the plea, together with the question as to the guilt or innocence of the defendant, to one jury and at one trial, and correctly so. State v. Manning, 168 Mo. 418; State v. Laughlin, 158 Mo. 415. (3) It is plain from the record that the objection to juror Anderson came too late. (4) The instructions are fair and proper. They do not comment upon the testimony and clearly present to the jury the law bearing upon the case and as applicable to the facts shown in evidence. The State introduced evidence showing that defendant has not been an inhabitant of or usually resident within the State of Missouri since the twenty-second day of March, 1898. Against this testimony defendant introduced evidence, and it is not for this court to weigh the relative reasonableness of the testimony in this respect. An appellate court will not invade the jurisdiction of the jury. It became and was the duty of the jury to determine from the evidence whether or not the allegation contained in the indictment in this particular was true, and the jury having found for the State, this court will not undertake to open up that question of fact.

OPINION

GANTT, P. J.

On the fifth 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...