The State ex rel. Walker v. Harber

• Citation: 31 S.W. 889,129 Mo. 271
• Parties: The State ex rel. Walker, Attorney General, v. Harber et al
• Decision Date: 02 July 1895
• Court: United States State Supreme Court of Missouri

31 S.W. 889

129 Mo. 271

The State ex rel. Walker, Attorney General, v. Harber et al

Supreme Court of Missouri

July 2, 1895

[Copyrighted Material Omitted]

Proceeding to Disbar.

The trial of Joseph Howell, indicted for murdering Nettie Hall in Linn county, Missouri, on the nineteenth of January, 1889 and matters incident thereto, have given origin to the present proceedings to disbar the respondents from practicing at the bar of this court. Howell was ultimately convicted of the crime with which he was charged, and suffered the extreme penalty which the law denounces against offenders of that class, but before this result was reached there were trials and mistrials, with the final result announced in State v. Howell, 117 Mo. 307.

At the April term, 1890, the supreme court reversed the judgment of the Linn circuit court, and remanded the cause for new trial. Upon the case being redocketed Howell was granted a change of venue to the Grundy circuit court. Up to this time Howell was represented by A. W. Mullins as attorney, but, upon the cause being docketed in the Grundy circuit court, Messrs. Harber & Knight, a firm of attorneys living at Trenton, were employed in the defense of Howell. The cause was then tried, but the jury failed to agree; the case was continued, and affidavits against Judge Burgess alleging prejudice were filed, and Judge C. H. S. Goodman, the circuit judge of the adjoining circuit, was called in to try the cause. The defendant was again tried at the August adjourned term, 1891, convicted of the murder of Nettie Hall and sentenced to be hanged. Upon the trial Mrs. Josephine H. Vandivert was appointed official stenographer. James Hall, R. N. Vorce and D. C. Orr were sworn and testified upon the part of the state. Joseph A. Howell, the defendant, was sworn and testified in his own behalf. He filed a motion for new trial, which was argued orally and overruled; applied for and was granted an appeal to this court, and an order made allowing defendant time in which to file his bill of exceptions.

Not until January 23, 1893, however, was the transcript of the bill of exceptions filed in the office of the clerk of the supreme court. Upon the filing of the transcript the cause was set for hearing at the April term, 1893, of division number 2 of this court. On April 11 the cause was argued orally by E. M. Harber and A. W. Mullins (A. G. Knight being present, but not participating in the oral argument), and submitted, with printed abstract of the evidence, statement, brief and argument; the printed abstract, statement, brief and argument was signed by respondents Harber & Knight and A. W. Mullins. Both in the oral argument and in the printed brief and argument two points were urged for reversal more prominently than any others: First, that the evidence upon the trial did not establish the alleged homicide, the death or identification of Nettie Hall, the person charged in the indictment to have been killed by the defendant; second, that the cross-examination of the defendant was unwarranted by the law or the facts, in this: that upon the trial the court permitted the state to cross-examine the defendant about matters not testified to by him in chief. In the printed statement and abstract prepared by the respondents, and from which respondent Harber and Major Mullins argued the case, it was represented and made to appear that there was absolutely no testimony upon the trial to identify the dead body of Nettie Hall, or to establish the fact that she was dead; and there is also a cross-examination of the defendant upon said trial, which, if it had occurred, was wholly unwarranted, either in law or in fact, and of itself sufficient to reverse the cause.

After the case was argued and submitted in division number 2, it was discovered by the attorney general that the bill of exceptions on file in the office of the clerk of the Grundy circuit court, and the transcript thereof of record in this court was false in two particulars, viz., that the testimony failed to show any proof whatever of the corpus delicti, the death or identification of Nettie Hall, and that the cross-examination of the defendant, as it appeared in the bill of exceptions and transcript, did not occur upon the trial; that the first had been omitted, extracted and removed from the official stenographic copy, and the latter manufactured, inserted and interpolated, for the express purpose and with the intent of misleading and deceiving this court, and thereby securing a reversal of this cause. These facts were, on motion of the attorney general, called to the attention of division number two of this court. The order of submission, previously entered, was set aside, and a rule made upon Judge Goodman, who had tried the cause, to proceed to Trenton and correct and restore the bill of exceptions and transcript thereof, so that it should contain and report the true testimony actually given upon the trial. In obedience to this rule, Judge Goodman proceeded to and did correct the bill of exceptions and transcript thereof, and under his hand and seal certified to this court the correct transcript. Judge Goodman also certified to this court, in obedience to said rule, that he had investigated the changing, altering, mutilating, interpolating and forging of the bill of exceptions and transcript, and found that the same had been changed, altered and forged both before and after it was signed by him and filed with the clerk of the Grundy circuit court. After an examination of the proceedings before Judge Goodman and his report to division number two, this division of the court entered an order of record approving in all things the action of Judge Goodman, together with the report made by him; the cause was then set down anew for brief and argument, and an additional brief filed upon the part of the state, but none upon the part of the appellant; and during May, 1893, the cause was submitted without oral argument, the judgment affirmed and the defendant hanged.

The testimony in this proceeding discloses the fact that after Howell's motion for new trial had been overruled, Messrs. Harber and Knight, the respondents, applied to Mrs. Josephine H. Vandivert, the official stenographer, for a transcript of the evidence and proceedings; that Mrs. Vandivert forwarded two copies of the testimony by express to them at Trenton, Missouri, one for them, and the other for the circuit clerk, with instructions, as Mrs. Vandivert testifies, to deliver the duplicate copy to the clerk; that upon the receipt of the duplicate transcripts, Messrs. Harber and Knight, instead of delivering the duplicate copy to the clerk, sent it by express to A. W. Mullins, at Linneus, and retained the other themselves; that Mr. Harber proceeded to, and did, make an examination of the transcript retained by them, and made by Mrs. Vandivert, making alterations and suggestions and removing and changing the first page; that Mr. Knight then took the matter in charge and proceeded to prepare a bill of exceptions.

It is shown that these transcripts of the testimony, made by Mrs. Vandivert, contained the true testimony of the witnesses as given upon the trial, and in them appears the positive testimony of Hall, Vorce and other witnesses, identifying the dead body of Nettie Hall on the night of the homicide at the burning building; that these transcripts contained the correct cross-examination of the defendant as it occurred upon the trial. These facts are admitted in the depositions of both of respondents Harber and Knight, and, although they say in their separate answers that the changes made by them were necessary to correct and perfect the bill of exceptions, yet in their sworn testimony they admit that such changes were not necessary to the correction of the bill of exceptions, but that, so far as these particular facts are concerned, the transcripts furnished by the official stenographer were absolutely correct. It is admitted by respondent Knight, in his deposition, that the changes made by him were for the purpose, not of making a true bill of exceptions, but for the purpose of making one that was false, and with the intention of misleading and deceiving the supreme court, in order to secure a reversal of this cause.

In the preparation of the bill of exceptions, according to the testimony of respondents, Knight proceeded to, and did, extract every particle of testimony, as shown by the correct and by the mutilated pages printed in full in the abstract of the evidence before us, tending either directly, or indirectly, to establish the corpus delicti, from the transcripts furnished by the official stenographer, and in order that the same number of pages might be preserved in the transcript, other matters not testified to by any witness upon the trial were inserted. In addition to this, in the cross-examination of the defendant, pages of questions and answers had been extracted, and false and manufactured matter, questions and answers that had not been asked or given upon the trial, had been inserted and when asked the object and intent with which these changes were made, Mr. Knight states in his testimony that it was for the purpose of securing a reversal of that case.

It also appears from respondents' testimony that this false and fraudulent bill of exceptions was presented to counsel representing the state by Mr. Harber, with the assurance by him (Harber), as testified to by Mr. Bigger that the same was just as prepared by the official stenographer; that the attention of the attorneys upon the other side was not called to the fact that these changes had been made; that upon reaching an agreement, except as to three matters foreign to the issues involved in this proceeding, Mr. Knight proceeded to Maysville...