State v. Williford

• Decision Date: 04 April 1905
• Citation: State v. Williford, 86 S.W. 570, 111 Mo. App. 668 (Mo. App. 1905)
• Parties: STATE OF MISSOURI, Respondent, v. WILLIFORD, Appellant
• Court: Missouri Court of Appeals

86 S.W. 570

111 Mo.App. 668

STATE OF MISSOURI, Respondent, v. WILLIFORD, Appellant

Court of Appeals of Missouri, St. Louis

April 4, 1905

Appeal from Ozark Circuit Court.--Hon. Asberry Burkhead, Judge.

REVERSED.

STATEMENT.

The defendant was informed against for embracery in the circuit court of Ozark county by the prosecuting attorney of said county under sec. 2045, R. S. 1899, in two separate and distinct informations. The first charged defendant with unlawfully and corruptly attempting to improperly influence one McCully, a juror. On this information defendant was tried and acquitted by the court, sitting as a jury.

The second information charged that on May 15, 1903, a certain jury of said county being then and there duly summoned, sworn and empaneled to sit as jurors in a certain issue joined wherein the State of Missouri was plaintiff and one Floyd Hall was defendant, then pending and on trial in the circuit court in and for said county, the said circuit court then and there having jurisdiction of said criminal action, and one Dave Williford, well knowing the premises and facts aforesaid, and J. C. Wallace, one of the jurors of said jury corruptly intending to hinder and prevent a fair trial by the jury aforesaid, did on behalf of said Floyd Hall, defendant in said action, unlawfully and corruptly attempt improperly to influence the said J. C. Wallace, one of the jurors of said jury, and incline him to be more favorable to the side of the defendant than to the side of the plaintiff in the trial and decision of said issue so as aforesaid joined and on trial before said jury by then and there uttering to and in the presence and hearing of said J. C. Wallace, divers words and discourses by way of commendation of the said Floyd Hall and in his said cause of action and in disparagement of the said State of Missouri, plaintiff, contrary to the statutes, etc., and against the peace and dignity, etc.

On this last mentioned information the defendant was tried and convicted in the circuit court. A jury being waived, the case was tried before the court.

The case arising on this last above mentioned information is the case here for review. The facts are when the case came on for trial on the first above mentioned information, that charging the corrupt attempt to influence one McCully, a juror, in the case of State v. Floyd Hall, a jury was waived and the issue was tried to the court. Witnesses, to-wit: McCully Wattenbarger and J. C. Wallace each testified for the State that they were summoned and sworn on a certain jury in the case of State v. Floyd Hall in the circuit court. That after being so summoned, the defendant approached each separately and had some conversation about the cases to the effect that it was desired to acquit Hall, the defendant therein. None of these jurors testified as to what occurred between defendant and the other jurors; each testified to a different and distinct conversation had with himself.

The evidence was sufficient prima facie to sustain the allegation that defendant sought to improperly influence the members of the jury in favor of Hall after the jurors were summoned, but there was no evidence introduced on the part of the State tending to prove that Floyd Hall had been indicted or informed against or that there was then pending in the said court a cause of any kind against said Hall or that the jury had been summoned, sworn and empaneled therein, other than the mere verbal statement of the witnesses that they had been summoned and sworn in the case of State v. Hall.

The defendant testified in his own behalf that he did not offer any inducements or intend to offer any inducements to influence any of the jurors aforesaid; that he had a conversation with two or three of the jurors; that he had no conversation with the juror McCulley, tending to influence his action; had asked McCulley what he thought of the chance of the negro going clear. McCulley said he was on the jury and could not talk about the case, and this ended the conversation. That at the time he mentioned the case to the several jurors he did not know they were summoned on the jury; that he did not attempt nor intend to influence any one of them. On this state of facts the court, sitting as a jury found the issue in the first case, that involving the alleged attempt to influence McCulley, for the defendant, and acquitted him thereon.

The next case coming on for trial, to-wit, the case arising on the information alleging an attempt to improperly influence the juror, J. C. Wallace, which case is now here for review the prosecuting attorney and the defendant's attorney by agreement, submitted the case to the court without a jury on the record and evidence in the prior case and no other evidence was introduced therein. The prosecuting attorney then asked leave to enter a nolle prosequi in said cause. The court refused the request and defendant excepted to such action of the court.

No instructions were asked or given. The court found defendant guilty as charged and assessed his punishment at a fine of $ 100. Motions for new trial and in arrest were promptly filed and overruled.

The case is here by appeal. Appellant assigned as error the action of the court in admitting the testimony in the former case as the only...