State v. Tummons

• Decision Date: 03 April 1931
• Citation: 37 S.W.2d 499,225 Mo.App. 429
• Parties: STATE OF MISSOURI, RESPONDENT, v. MATT TUMMONS AND HARLEY TUMMONS, APPELLANTS
• Court: Missouri Court of Appeals

37 S.W.2d 499

225 Mo.App. 429

STATE OF MISSOURI, RESPONDENT, v. MATT TUMMONS AND HARLEY TUMMONS, APPELLANTS

Court of Appeals of Missouri, Springfield

April 3, 1931

Appeal from the Circuit Court of Polk County.--Hon. C. H. Skinker Judge.

AFFIRMED.

Judgment affirmed.

Frank S. Sea and T. H. Douglas for appellants.

(1) The venue of the cause was not in Polk county, but in Greene county. When this fact was developed, it was the duty of trial court to have halted proceedings in Polk county and ordered papers and proceedings certified and transmitted to circuit court of Greene county, the county where the alleged offense took place. Secs. 3729, 3730 and 3731, R. S. 1919; State v. Grubb, 201 Mo. 585, 607; State v Buente, 356 Mo. 227, 242; State v. Kurtz, 294 S.W. 117, 118 and 120; State v. Shour, 196 Mo. 202 223; State v. Lee, 228 Mo. 480, 497; Commission Co. v. Stirlen, 262 S.W. 387; State v. Shaeffer, 89 Mo. 271. (2) At time of alleged offense, August 20, 1929, there was no case pending against defendants Matt Tummons or Jack McCarthy, as record shows information was not filed by prosecuting attorney in the McCarthy case until September 6, 1929, and in the Tummons' cases until September 10, 1929. Until the information had been filed, there was no case pending against said parties. Constitution of Mo., art. 11, sec. 12; State v. Arlin, 39 N.H. 179-180; Sec. 3847, R. S. 1919. Under the State's evidence it was claimed that the money and railroad ticket was given Burks in Greene county, and not in Polk county. Certainly, if there was an offense committed, it was committed in Greene county. No overt act is shown in Polk county. The question of venue was sufficiently raised by demurrer offered at close of State's evidence. See authorities cited supra. (3) The verdict is not responsive to the pleadings. The defendants were charged in four separate counts and charged with four separate and distinct crimes. The verdict was general, not designating the count. It was error for the court to receive such verdict, and on this ground alone the cause should be reversed and remanded. State v. Preslar, 290 S.W. 142; State v. Link, 286 S.W. 12; State v. Harmon, 106 Mo. 635. The verdict was a general one, and insufficient. Here we have four counts; three alleging inducing witness to leave to avoid testifying in cases against Matt Tummons, and one for inducing witness to leave to avoid testifying in case against Jack McCarthy. Under testimony of Prosecuting Attorney, the case against McCarthy was a misdemeanor, and those against Tummons felonies. Were defendants convicted on separate counts? Was Matt Tummons convicted on the count based on the misdemeanor charge? If so, his punishment was excessive. State v. Harmon, 106 Mo. 635; State v. Hudson, 127 Mo. 618, 620; State v. Burke, 151 Mo. 136; State v. Karlowski, 142 Mo. 463, 467. (4) One of the requisites of a valid verdict is that it must be definite and certain. State v. Reeves, 208 S.W. 87, 91; State v. Loeb, 190 S.W. 299, 305; State v. Hedgpeth, 278 S.W. 740, 742; State v. Schwarting, 288 S.W. 969.

Willard B. Leavitt, Prosecuting Attorney, for respondent.

SMITH, J. Cox, P. J., and Bailey, J., concur.

OPINION

SMITH, J.

This is a prosecution, by indictment, against Matt Tummons and his son, Harley Tummons, under section 3134, Revised Statutes 1919, now 3886, Revised Statutes 1929, wherein the defendants are charged with inducing one Sam Burks to absent himself so as not to appear as a witness against Matt Tummons and Jack McCarthy in certain cases then alleged to have been pending in the circuit court of Polk county, Missouri.

On the 29th day of June, 1929, Matt Tummons had been arrested charged with sale of hootch, moonshine, and corn whiskey. He was charged in the affidavits filed before Harry T. West, justice of the peace, with three sales of hootch, moonshine and corn whiskey on three different dates in the month of June, 1929. Jack McCarthy was arrested the same day, charged with a similar offense.

On July 6, 1929, they had their preliminary hearings before said justice, and were bound over to the circuit court to answer said charges. On the 11th day of July the justice of the peace filed his transcript of record in all four cases, together with the original affidavits and bonds in the cases, in the office of the clerk of the circuit court.

No informations were filed by the prosecuting attorney until the 10th day of September, 1929, at which time he filed informations respectively against Matt Tummons and Jack McCarthy charging Matt Tummons with sale of hootch, moonshine, and corn whiskey, and Jack McCarthy with sale of moonshine.

On January 6, 1930, a grand jury was empaneled, and later returned the indictment herein against Matt Tummons and Harley Tummons, the defendants herein and Jack McCarthy and F. M. (Fritz) McCarthy, all being included in one indictment in four counts. In three counts the defendants are charged with hiring Sam Burks to leave the State and not appear as witness in cases then alleged to have been pending against Matt Tummons, and the other count of inducing Burks to leave the State so as not to appear as a witness in the case alleged to have been pending against Jack McCarthy.

The indictment charged the alleged offense to have been committed on the 20th day of August, 1929, three weeks before the prosecuting attorney filed informations against Matt Tummons and Jack McCarthy. F. M. McCarthy was not apprehended, and Jack McCarthy took a severance.

On the 19th day of February, 1930, defendants Matt Tummons and Harley Tummons, were put upon trial to a jury in the circuit court of Polk county, Missouri. The jury returned a general verdict of guilty against these defendants and assessed Matt Tummons' punishment at two years in the penitentiary, and Harley Tummons' punishment at six months in the county jail and a fine of $ 100.

A motion for new trial was filed and overruled and an appeal was taken to the Supreme Court of this State. Upon motion of attorney-general the Supreme Court transferred the case to this court because the offense of which the defendants were convicted is a misdemeanor.

Section 3886, Revised Statutes 1929, specifically provides that every person violating said section shall be deemed guilty of a misdemeanor, and provides that under certain circumstances therein described, the person so offending shall be punished by imprisonment in the penitentiary, or by a jail sentence and a fine. Our Supreme Court has held that the general assembly has the power to grade the offense of bribery of a witness to absent himself, and to make it a felony or misdemeanor, and if it makes it a misdemeanor it can fix the punishment at imprisonment in the penitentiary or in the county jail or fines. That is on the theory that if a special provision of the statute applicable to a particular subject be inconsistent with the general law, the special will prevail. [State ex rel. Butler v. Foster, 187 Mo. 590, 86 S.W. 245; State ex rel. Stinger v. Kruger, 280 Mo. 293, 217 S.W. 310.]

Upon the authority of the opinions above cited, and upon the direct command of the Supreme Court in this instance, this case is before us for consideration as a misdemeanor even though the punishment of one of the defendants was fixed at two years' imprisonment in the penitentiary.

The defendants submit five reasons under their points and authorities for reversal of this case. We shall consider them in the order submitted. First, they say the venue of the cause was not in Polk county, but was in Greene county, and that when this fact was developed by the evidence that it was the duty of the trial court to have halted the proceedings in Polk county and ordered papers and proceedings certified and transmitted to the circuit court of Greene county.

Section 3886, Revised Statutes 1929, provides that "Every person who shall, by bribery, . . . directly or indirectly induce or attempt to induce any witness, . . . to absent himself or avoid a subpoena or other process, or to withhold his evidence, or shall deter or attempt to deter from appearing or giving evidence in any cause, matter or proceeding, civil or criminal, . . . every person offending against the provisions of this section, shall be deemed guilty of a misdemeanor: . . ."

The indictment in this cause is in four counts. The first three counts charge the defendants with bribery of the witness Sam Burks, and attempting to induce him to absent himself and not give testimony in three causes then pending against Matt Tummons wherein Matt Tummons had been held for his appearance at the circuit court of Polk county, to answer charges on three separate and distinct offenses of selling intoxicating liquor to-wit: hootch, moonshine, and corn whiskey, on each of the days, June 23, 1929, June 27, 1929, and on June 28 1929. Each of the first three counts of the indictment after alleging the date of the sale of the intoxicating liquor by Matt Tummons, and the date of the bribery on the part of the defendants in Polk county contained this language: "And so the grand jurors aforesaid upon their oath aforesaid do charge that they, the said Matt Tummons, Harley Tummons, Jack McCarthy, and F. M. McCarthy, then and there well knowing him, the said Sam Burks, to be a witness for and on behalf of the State of Missouri, in the said cause, matter and criminal proceeding aforesaid, then and there duly pending in the said circuit court of Polk county aforesaid, said circuit court then and there having jurisdiction in said cause, matter and criminal proceeding aforesaid, then and there unlawfully and corruptly, did, directly and indirectly, bribe and induce him, the said Sam Burks, the witness aforesaid, to absent himself for the purpose of...