The State v. Bradford

• Decision Date: 28 May 1926
• Docket Number: 26966
• Parties: THE STATE v. NEAL BRADFORD, Appellant
• Court: Missouri Supreme Court

285 S.W. 496

314 Mo. 684

THE STATE v. NEAL BRADFORD, Appellant

No. 26966

Supreme Court of Missouri

May 28, 1926

Appeal from St. Charles Circuit Court; Hon. Edgar B Woolfolk, Judge.

Affirmed.

W R. Dalton for appellant.

North T. Gentry, Attorney-General, and Claud Curtis Special Assistant Attorney-General, for respondent.

(1) The indictment is sufficient. State v. Mitchell, 267 S.W. 873; State v. Moran, 216 Mo. 550; State v. Rhodes, 220 Mo. 9; State v. Ruddy, 287 Mo. 52. (2) The evidence was sufficient to support the verdict. State v. Mitchell, 267 S.W. 873; State v. Norris, 249 S.W. 78; State v. Clinkenbeard, 247 S.W. 199. (3) The instructions given in this case declare the law as to perjury as it was declared in State v. Mitchell, 267 S.W. 873, where the instructions given were approved. The State's Instruction 4, which told the jury that the alleged false testimony given by defendant was material, was correct. State v. Higgins, 124 Mo. 649. Furthermore defendant's assignments in his motion for new trial as to written instructions save nothing for review. State v. Knight, 278 S.W. 1036. (4) Appellant's assignment of error that the court erred by orally stating to the jury during the argument of counsel "or at any time within three years before the filing of the indictment herein," and by then inserting said clause in Instruction 2 is without merit. Such a statement is not considered as an instruction. State v. Good, 132 Mo. 114; State v. Dewitt, 152 Mo. 76; State v. Crofton, 271 Mo. 507. This statement could not prejudice defendant's case because when the jury retired the remark had been made a part of the written instructions. (5) Under Sec. 3973, R. S. 1919, two compurgators must support an affidavit for a change of venue. State v. Kocian, 208 S.W. 44; State v. Richardson, 194 Mo. 326; State v. Turlington, 102 Mo. 642. The same provision is made in the 1921 amendment of Section 3973. (a) But a petition supported by two compurgators does not make out a prima-facie case for change of venue. There must be proof. State v. Tatlow, 136 Mo. 678. (b) According to the 1919 statute the granting of a change of venue for local prejudice was in the discretion of the trial court. State v. Anderson, 252 Mo. 83; State v. Shoffer, 253 Mo. 320; State v. Jackson, 227 S.W. 647. (c) Affidavits were inadmissible to prove prejudice of inhabitants of a county. State v. Bohanan, 76 Mo. 562. (d) The granting of a change of venue from one circuit to another circuit is discretionary with the trial court. Laws 1921, sec. 3973, p. 206. (e) The Amendment of 1921 does not dispense with the two compurgators, but substitutes the affidavits of "five or more credible disinterested citizens residing in different neighborhoods of the county where said cause is pending," for the proof of prejudice. Sec. 3973, Laws 1921, p. 206.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On July 31, 1924, the grand jury of St. Charles County, Missouri, returned into the circuit court of said county, an indictment in due form, which, without caption and signatures, reads as follows:

"The grand jurors for the State of Missouri, summoned from the body of St. Charles County, empaneled, charged and sworn, upon their oaths present that on the 29th day of July, A. D. 1924, at and in the County of St. Charles and State of Missouri and during the session of the May Term, A. D. 1924, of the Circuit Court of the County of St. Charles and State of Missouri, aforesaid, the grand jurors for the State of Missouri, who had been summoned from the body of the County of St. Charles and who had been duly empaneled, sworn and charged to inquire within and for the body of the County of St. Charles and State of Missouri, were then and there in session, the said grand jurors having been then and there duly organized and then and there discharging the duties of grand jurors; that Neal Bradford of the County of St. Charles and State of Missouri was then and there a witness duly summoned to appear and testify before the said grand jurors in a criminal investigation then and there pending before the said grand jurors wherein one Alfred Massey was charged with unlawfully permitting a gaming device on premises occupied and under the control of said Alfred Massey and with permitting a crap game on such premises, which said matter the said grand jurors then and there had lawful power and authority to investigate and he, the said Neal Bradford, then and there before the said grand jurors, in due form of law, was sworn by Joseph F. Sigmund, then and there being and acting as foreman of said grand jurors, and took his oath the truth to speak concerning the matter charged against the said Alfred Massey, he, the said Joseph F. Sigmund, foreman of the said grand jurors, then and there having lawful power and authority to administer the said oath to the said Neal Bradford, in that behalf; that said Neal Bradford being so duly sworn as aforesaid, then and there, upon his oath aforesaid, before the grand jurors aforesaid, falsely, wilfully, corruptly and feloniously did depose and swear in substance and to the effect as follows: That he, the said Neal Bradford, at and in the County of St. Charles and State of Missouri did not see any game of craps being played in or on the premises occupied and under the control of said Alfred Massey and that he, the said Neal Bradford, did not take part in any such crap games, whereas in truth and in fact the said Neal Bradford did see a game of craps being played and did take part in a game of craps being played on and in the premises occupied by and under the control of said Alfred Massey on May 29, 1924, and at other and divers times, the exact dates being to the grand jurors unknown; that said swearing by the said Neal Bradford was material to the point under investigation by the said grand jurors and was knowingly, maliciously, feloniously, wilfully, deliberately, absolutely and corruptly false and the said Neal Bradford then and there well knew the same to be false when he deposed to it. And so the grand jurors aforesaid, upon their oaths aforesaid, do present and charge that the said Neal Bradford on the 29th day of July, A. D. 1924, in the State and County aforesaid, in the manner and form aforesaid, and by means of the false swearing aforesaid, was guilty of felonious, malicious, wilful, deliberate, absolute and corrupt perjury against the peace and dignity of the State."

On November 12, 1924, defendant filed a demurrer to said indictment. The cause was continued to February term, 1925, and said demurrer, on February 17, 1925, was overruled. Thereafter, on the last-mentioned date, defendant filed an application for a change of venue, which was overruled on the same day. Defendant was arraigned and entered a plea of not guilty. Thereafter on said lastnamed date the case was tried before a jury, and the following verdict was returned:

"We, the Jury, find the defendant guilty of perjury, as charged in the indictment in this case, and we assess his punishment therefor at imprisonment in the Penitentiary for a term of two years."

Thereafter, on the same day, defendant filed his motion for a new trial, which was overruled, allocution was granted, judgment rendered, sentence pronounced in conformity with said verdict, and an appeal allowed defendant to this court. Thereafter, on January 4, 1926, defendant filed his bill of exceptions in the circuit court, and on January 16th, filed a transcript of the record and proceedings aforesaid in this court.

The evidence in this case tends to show, in substance, that in 1924 a grand jury was properly organized and in session in the County of St. Charles and State of Missouri, and that said jury had under consideration, among other things, the investigation of the place of business of Alfred Massey, located on Main Street, in the city of St. Charles and county of St. Charles aforesaid; that said grand jury was then making an investigation of the business of said Massey to determine whether crap games formerly were permitted at said place of business in violation of law; that while said grand jury was in session and investigating the matter aforesaid, the defendant, Neal Bradford, appeared before said body, and was duly sworn as a witness by the foreman to testify truthfully concerning the inquiry which they were then conducting; that, as shown by the testimony of several of the members of the grand jury, said Bradford was asked whether during the year 1924 he had ever seen anyone shooting craps at Massey's place of business; that he was likewise asked, whether during the same period he had ever shot craps himself at said place of business; that said defendant was asked these questions a number of times, and in each instance positively declared that he had never seen anyone shoot craps at said place during the said period, nor did he ever shoot craps during said time at said place himself.

The State produced as a witness, Roy Woolfolk, who testified in substance that he was familiar with Massey's place of business aforesaid, and that about the middle of July, 1924 he was at said place of business while a crap game was played on said premises, and in said building; that defendant, Neal Bradford, was there and was managing the game conducted at this place on that particular occasion; that every time a shot was made, Bradford received a nickel from the person shooting; that both witness and Bradford were engaged in said game of craps; that while said game was in operation, a police officer, by the name of Duckworth, and another police officer, raided the above place and took from Woolfolk money on which he was sitting; that defendant Bradford was there at the time and that some of the money thus taken by the police...