The State v. Decker
| Decision Date | 09 March 1909 |
| Parties | THE STATE v. LOUIS DECKER, Appellant |
| Court | Missouri Supreme Court |
Appeal from Greene Criminal Court. -- Hon. A. W. Lincoln, Judge.
Affirmed.
Edward H. Foristel and A. H. Wear for appellant.
(1) On the evidence of the State the court should have directed a verdict of acquittal, because, first, there was no evidence offered to prove that the St. Louis and Suburban Railroad Company was a corporation. Sec. 995, R. S. 1899; Sch Dist. v. Dorton, 125 Mo. 439. The existence of a corporation is proved by showing a valid instrument of incorporation and of uses thereunder. 10 Cyc. 235. (2) Not only was the evidence insufficient to prove the incorporation but it proves, if anything, another and different corporation. That is, witness stated that the St. Louis and Suburban Railway Company was a corporation. This, then constitutes a material variance between the allegation and the proof. Jordan v. Railroad, 105 Mo.App. 446; Brown v. Railroad, 72 Mo. 567; Bank v Mudd, 32 Mo. 218; McGregor v. Fuller & Co., 72 Iowa 464; 2 Beach, Priv. Corp., sec. 864; State v. Meysenberg, 171 Mo. 54. (3) The court erred in overruling the application for a continuance. A stranger from a strange place coming into an infuriated community to be tried for an offense which had been exploited by the metropolitan papers throughout the State might rightfully ask that some time should be given for the restoration of order and quiet. We think it most extraordinary and unprecedented to force a defendant, under the circumstances, into a trial when we will all admit that a trial means a cool, deliberate, unbiased investigation of the facts of a case. (4) The motion to correct the transcript should have been sustained. There was no petition for the change of venue from the circuit court of the city of St. Louis and the court acquired no jurisdiction. R. S. 1899, sec. 2586; Blodgett v. Schaffer, 94 Mo. 670; State v. Lingle, 128 Mo. 537. (5) The testimony of codefendants as to the receipt by them of money on lighting deal at the house of Lehman was incompetent. This question has been presented to this court in other cases, to-wit: State v. Schnettler, 181 Mo. 173; State v. Boatright, 182 Mo. 51, and other cases, but in these it was shown by competent evidence that the defendant had participated with the others, in this case it is not shown that defendant did participate in this division.
Elliott W. Major, Attorney-General, and Chas. G. Revelle, Assistant Attorney-General, for the State.
(1) The assignments dwelt on most earnestly by appellant are: First, that there is a material variance between the allegation in the information, that the St. Louis and Suburban Railroad Company, and the proof, that the St. Louis and Suburban Railway Company was a corporation. Second, that there was not sufficient evidence offered to prove that either was a corporation. We might content ourselves with dismissing these assignments by reference to the fact that the attention of the trial court was not called thereto, either during the trial or by the motion for new trial, and that these matters are not properly here for review. Appellant may contend, however, that by asking an instruction in the nature of a demurrer at the close of the State's evidence, the attention of the court was thereby directed to this matter. Conceding for the moment that this is true, and that his general assignment in the motion that the court erred in refusing the instructions asked for by the defendant is sufficient to preserve his exceptions to the ruling on the demurrer, which we disaffirm, we reply: That by overruling the demurrer and giving the instructions it did, the court found that the variance was not material, and to the court alone belonged this duty. It is presumed from the action of the trial court in overruling defendant's demurrer that it was the judgment of the court that the variance was immaterial, or not prejudicial to defendant. State v. Barker, 64 Mo. 285; State v. Smith, 80 Mo. 520; State v. Harl, 137 Mo. 256; State v. Sharp, 106 Mo. 109; State v. Walters, 144 Mo. 347; State v. Wammack, 70 Mo. 411; State v. Sharp, 71 Mo. 221; State v. Ward, 74 Mo. 255; State v. Nelson, 101 Mo. 482; State v. Dale, 141 Mo. 287. Throughout the trial the record discloses that but one "St. Louis and Suburban" company was referred to, and both the State and defendant joined in treating it as one and the same. State v. Gregory, 178 Mo. 58; R. S. 1899, sec. 2534. (2) Sec. 2634, R. S. 1899, provides that if on the trial of a criminal cause the existence of a corporation becomes material, it may be proved by general reputation. It has been uniformly held that corporate existence may be proved by any one who, of his own knowledge, is acquainted with the fact, or by general reputation. State v. Jackson, 90 Mo. 159; State v. Tucker, 84 Mo. 25; State v. Cheek, 63 Mo. 365; State v. Knowles, 185 Mo. 169; State v. Wise, 186 Mo. 46; Reed v. State, 15 Ohio 217; State v. Harris, 199 Mo. 723; State v. Sykes, 191 Mo. 79. (3) Evidence that the combine received bribes for their official votes on the lighting bill was properly admitted. Appellant contends that because the evidence is not abundant as to his presence at the birthday party when the spoils were divided, is a sufficient reason for making the admission in this evidence reversible. First, we call the court's attention to the fact that the sole objection made to the admission of this evidence is, "defendant's counsel object to the question." An objection without stating any grounds therefor is insufficient. State v. Young, 153 Mo. 449; State v. Westlake, 159 Mo. 679. Aside from this, the record abounds with proof that at the time when this money was extorted, defendant was a member of the combine; and that he and his companions in crime had prior thereto organized the combine, and were then continuing it for the criminal purpose of procuring money for their votes on legislation generally.
On the 13th day of September, 1902, at the June term of the circuit court of the city of St. Louis, the circuit attorney filed an information against the defendant charging him and fifteen other alleged members of the House of Delegates of said city, jointly, with the crime of bribery. On October 8, 1902, defendant was duly arraigned and entered his plea of not guilty. The cause not having been brought to trial on June 8, 1904, the court permitted the circuit attorney to amend the information by having the same verified by a competent witness, to-wit, John K. Murrell. On motion of the defendant a severance was granted him and afterwards, on his application, a change of venue was awarded to the criminal court of Greene County, Missouri, and the cause was certified to said court. At the March term, 1906, of the said court, the defendant filed a motion to continue the cause and correct the transcript or to strike the cause from the docket, which motion was overruled. The defendant was then arraigned and pleaded not guilty. Defendant then made application for a continuance, which was overruled. A motion to quash the information was then filed and overruled. A motion to quash the panel of jurors was also filed and overruled. The jury was then selected and duly sworn, and the cause heard and a verdict of guilty returned and defendant's punishment assessed at five years in the penitentiary. His motions for new trial and in arrest of judgment having been heard and overruled, defendant was sentenced in accordance with the verdict, and from that judgment and sentence he has appealed to this court.
As all the substantial facts out of which this prosecution originated have been so often before this court in the previous appeals in State v. Faulkner, 175 Mo. 546, 75 S.W. 116, and State v. Faulkner, 185 Mo. 673, 84 S.W. 967, it is deemed entirely unnecessary to again burden our reports with a recitation of the evidence. It will suffice to say that there was ample evidence to sustain the verdict, and we shall consider only the errors assigned by the defendant for the reversal of the judgment.
I. It is insisted that the court should have directed a verdict of acquittal because there was no evidence offered to prove that the St. Louis and Suburban Railroad Company was a corporation. In the information it was charged that the bill number 44 introduced into the Council and Municipal Assembly of the city of St. Louis was one "by which it was proposed to grant certain rights and privileges to the St Louis and Suburban Railroad Company, a corporation," etc., and "that the defendant made a corrupt agreement, etc., with one Philip Stock, the agent and representative of the St. Louis and Suburban Railroad Company," by which seventy-five thousand dollars was to be and was deposited, "by the said Philip Stock as agent and representative of the St. Louis and Suburban Railroad Company." Whereas Philip Stock, a witness for the State, testified that the railroad company, which he represented in the said bribery transaction, was known as the St. Louis and Suburban Railway Company, and it is insisted that there was a fatal variance between the allegation in the information and the proof. The court in its instruction referred to the said corporation as the St. Louis and Suburban Railroad Company. In the motion for new trial, the defendant did not call the court's attention specifically to this alleged variance, but contented himself with alleging that the verdict was against the weight of the evidence. Neither did he request an instruction to the effect that this variance entitled him to an acquittal nor did he call the court's attention when the instructions were given to this fact of the...
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