State v. Taylor

• Decision Date: 22 November 1939
• Docket Number: 36747
• Citation: 133 S.W.2d 336,345 Mo. 325
• Parties: The State v. George Taylor, Appellant
• Court: Missouri Supreme Court

133 S.W.2d 336

345 Mo. 325

The State v. George Taylor, Appellant

No. 36747

Supreme Court of Missouri

November 22, 1939

Appeal from Buchanan Circuit Court; Hon. Ferd J Frankenhoff, Judge.

Reversed and remanded.

Mayer Conkling & Sprague for appellant.

(1) The information charged the defendant with attempting to corrupt a summoned juror. The evidence showed, and the State conceded, that before the alleged attempt to corrupt the juror, the juror had been excused from jury service. The alleged juror, therefore, was not a summoned juror within the information or within the statute at the time of the alleged attempt. He was no more a juror at the time of the alleged attempt to corrupt him than if he had never been summoned as a juror. 35 C. J. 309, sec. 313; Isaac v. State, 39 Tenn. 289; People v. Williamson, 26 P.2d 683; Anderson v. Wasatch & Jordan Valley Ry. Co., 2 Utah, 568; State v. Whitman, 48 S. C. L. 113. (2) Instruction 5 was prejudicially erroneous, in that it authorized a verdict of guilty even though the jury believed that the alleged attempt to corrupt a juror was made on the condition that the prosecuting witness would get back on the jury from which he had been excused. 11 C. J. S. 852, sec. 3 (a); State v. Farris, 229 S.W. 1102.

Roy McKittrick, Attorney General, and Lawrence L Bradley, Assistant Attorney General, for respondent.

(1) The court did not err in refusing appellant's Instruction B, which was in the nature of a demurrer, to the evidence at the close of the whole case. 35 C. J., p. 309, sec. 313; State v. Whitman, 14 Rich. 113; Isaac v. State, 2 Head, 458; Anderson v. Wasatch Ry. Co., 2 Utah, 518; Golding v. Steamer Castro, 20 La. Ann. 458; Abbott v. Padrosa, 71 S.E. 419; State v. Heft, 127 N.W. 830; State v. Guidice, 153 N.W. 336; Telford v. Wilson, 71 Ind. 555; People v. Williamson, 26 P.2d 681; People v. McNeer, 47 P.2d 813; State v. Jackson, 167 Mo. 291; State v. Perno, 23 S.W.2d 87; State v. Rouner, 333 Mo. 1236, 64 S.W.2d 916; State v. Pine, 332 Mo. 475, 57 S.W.2d 1087; State v. Hart, 331 Mo. 650, 56 S.W.2d 592; State v. Boone, 289 S.W. 578; State v. Sammels, 3 Mo. 68; State v. Williams, 136 Mo. 293; State v. Jones, 61 Mo. 232; State v. Mitchell, 170 Mo. 633. (2) The court did not err in giving Instruction 5 for the State. State v. English, 228 S.W. 746; State v. Dowell, 331 Mo. 1060, 55 S.W. (2d), 975; Sec. 3888, Mo. Stat. Ann., p. 2744; 8 Am. Jur., sec. 14, p. 894; State v. Butler, 178 Mo. 297; State v. Graham, 96 Mo. 120; 9 C. J., sec. 16, p. 411; United States v. Dietrich, 126 F. 676; Secs. 3887, 4442, Mo. Stat. Ann., pp. 2744, 3048; State v. Mitchell, 170 Mo. 633. (3) The verdict is clear, definite and responsive to the information. State v. Williams, 136 Mo. 293; State v. Jordan, 285 Mo. 62, 225 S.W. 905.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

Defendant, George Taylor, was convicted in the Circuit Court of Buchanan County of having attempted to corrupt a "summoned" juror, was sentenced to pay a fine of $ 500 and has appealed. The offense charged and of which defendant was convicted is a felony, hence our appellate jurisdiction. The information charges violation of Section 3888, Revised Statutes 1929 (Mo. Stat. Ann., p. 2744), which makes it a crime to corrupt or attempt to corrupt any person "summoned or sworn" as a juror. The information charges that on or about January 17, 1938, the defendant attempted to corrupt one Henry Delmar Chaney who had theretofore been duly summoned as a juror. The sufficiency of the information is not challenged and it need not be quoted. The facts may be outlined thus: --

At the times herein involved there was pending in the Circuit Court of Buchanan County, a case (among others) entitled State of Missouri v. William F. Walpole, which it appears had been scheduled for trial for January 17, 1938. [Note. Dates and time are important and should be kept in mind.] On January 10, 1938, a summons was issued for some sixty-five to seventy-five men to serve as jurors for the week beginning January 17th. Chaney was one of the men so summoned for jury service for that week, -- (not specifically for the Walpole case). Some time between January 10th and 13th Chaney was excused by the judge of the court. [We shall speak of this more in detail hereafter.] On January 14th, according to Chaney's testimony, defendant, Taylor, met him at a store where Chaney worked and said to him, in substance, that he "noticed" that Chaney had been summoned as a juror and that if he (Chaney) got on the Walpole case and would work for an acquittal or hang the jury he (Taylor) "would see that I (Chaney) got a nice piece of change." Chaney told Taylor he had been excused from jury service and there that conversation ended. But Chaney told his employer, Mr. Messenger, about that talk. Messenger conferred with the prosecuting attorney who, it seems, advised him to tell Chaney to report for jury duty on the 17th. Messenger testified that he also called up the presiding judge of the division of the circuit court in which the Walpole case was pending and (by telephone) told him what had transpired; that the judge at first said he would "let him know" or communicate further with him and later (by telephone) told him to tell Chaney to report for jury service on the 17th. Messenger did tell Chaney, or advise him, to report for jury service on the 17th, but did not tell him, -- nor did anyone -- that the judge of the court had so directed. No order of court was made directing that Chaney appear on the 17th, nor was there any summons to him, other than that of January 10th above referred to. He went to the courtroom on the 17th only in response to Messenger's request, with no knowledge that the court or the judge had so directed or requested. But he did appear on the 17th, was called, questioned, with others, as to his qualifications to serve on the Walpole jury and, it seems, was accepted as one of the panel of twenty-four from which the trial jury of twelve (after allowable peremptory challenges should be made) was to be drawn. It does not appear that any question was raised by either party as to how Chaney came to be there or as to whether or not he had been duly summoned. He seems to have been simply accepted as one of the qualified panel of twenty-four from which the trial jury of twelve was to be selected. It appears Chaney was not one of the twelve trial jurors remaining after the parties had exercised their statutory right of peremptory challenges from the list of twenty-four who had qualified.

Coming now to the events of January 17th, -- and again we note that time is important in the circumstances of this case, for reasons which will more fully appear hereinafter. The Walpole case was called for trial on said January 17th, but the court record proper does not show at what time in the day the case was called, -- nor does the State's evidence show. Defendant introduced the evidence of the then official court reporter who testified that she could tell from her notes when the case was called for trial; that her notes showed there was some civil matter being heard by the court in the forenoon that day and that the impaneling of a jury for the Walpole case began at about 1:30 p.m. This is important because the only conversation between defendant and Chaney claimed to have occurred after January 14th is shown to have occurred -- if at all, -- at the noon recess of court on the 17th. Chaney testified that defendant met him on the 17th. That was Monday. The Walpole case was called for trial and the impaneling of a jury for that case was begun that day. Chaney could not recall whether he was called for examination as a prospective juror in the "morning or afternoon." The court record does not show. It is true that at one time in his examination Chaney said he thought the conversation was on Tuesday, but his testimony as a whole, including cross-examination, shows that it must have been at the noon recess on Monday, the 17th. There was but one conversation after the 14th. All the evidence shows this fact. All the other evidence on behalf of the State, as well as on behalf of defendant, shows that whatever conversation occurred between defendant and Chaney was during the noon recess of court on Monday, the 17th. Chaney testified that Taylor said to him "he saw where I had got on the jury and that he would be up to see me after it was over and we would fix things up." He thought that was after he had been questioned on voir dire. On the other hand the stenographer's notes show that the impaneling of the jury did not begin till about 1:30 p.m. on Monday, -- and it may be observed that if it began on Monday it probably would have been completed before noon on Tuesday, though of this we cannot take judicial notice.

Further, both Chaney and defendant had been watched by detectives employed by the State from January 14th to January 17th, and their testimony, part offered by the State and part by the defendant, tends to show that whatever conversation occurred between Chaney and defendant was at the noon recess of court on Monday, the 17th.

The parties differ as to what that conversation was. We have stated the State's version. On defendant's behalf the evidence was to the effect that they merely met and exchanged greetings, as -- "How do you do," -- or "hello" or something of the sort, -- and nothing more, -- with no reference to the Walpole case or to any prior conversation relative thereto. This dispute of fact was concededly a question for the jury.

The court gave, among others, Instruction No. 5, which is complained of on this appeal. For disposal of the complaint here made against it we may epitomize it by saying that it told the jury in substance and effect that if the...