The State v. Meysenburg

• Decision Date: 16 December 1902
• Citation: 71 S.W. 229,171 Mo. 1
• Parties: THE STATE v. MEYSENBURG, Appellant
• Court: Missouri Supreme Court

71 S.W. 229

171 Mo. 1

THE STATE v. MEYSENBURG, Appellant

Supreme Court of Missouri, Second Division

December 16, 1902

Editorial Note:

This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.

Appeal from St. Louis City Circuit Court. -- Hon. Walter B. Douglas Judge.

Reversed and remanded.

Boyle Priest & Lehmann, Morton Jourdan and Chester H. Krum for appellant.

(1) The indictment is fatally defective and does not state an offense. 1. The crime depends upon bribe being paid in consideration of vote, decision, opinion or judgment being corruptly given. 2. The crime depends farther upon the corrupt vote being given under an agreement: (a) That his vote, opinion, judgment or decision shall be given for some particular person, or in some particular manner, or upon some particular side, or more favorable to one side than the other, in any question, election, matter, cause or proceeding which may be pending or be brought before him in his official capacity; or (b) that he shall neglect or omit to perform some official duty, or perform the same with partiality or favor, or otherwise than according to law. To agree to oppose, resist, withstand, thwart or defeat a certain measure is not to agree to anything as required by any of the specifications of the statutes, especially as it is obvious from the indictment, as a whole, that the offense intended to be charged is corruptly favoring the bill in some way. Something must be averred to have been agreed to be given or done in behalf of the bill, and there is no such averment. Furthermore, how was defendant to resist? What was he to do? The indictment does not say. And so through the category of oppose, withstand, thwart and defeat. An indictment must be precise and definite. State v. Burke, 151 Mo. 136; State v. Crocker, 95 Mo. 393; United States v Cruikshank, 92 U.S. 558. (2) The motion to require the State to elect. 1. Where an indictment is double, the defendant has either of two remedies. He may move to quash or, at the trial, may move that the State be required to elect. State v. Henn, 39 Minn. 464; State v Goodwin, 33 Kan. 542; Scruggs v. State, 111 Ala. 60. 2. The indictment is double, because it contains the statement of two offenses blended in one count. (a) First part of indictment is complete in itself, stating an agreement in consideration of a gratuity to be more favorable to the bill. But it is vague and indefinite. (b) Second part of indictment is complete in itself, and alleges a different agreement with Philip Stock, in consideration of $ 9,000 to oppose, etc., the bill unless and until paid. The motion should have been sustained. State v. Walker, 67 S.W. 228. (3) 1. Section 14, article 3 of the charter of St. Louis was improperly admitted. It is a public law, and as such had no proper place in evidence. 2. Proceedings of council improperly admitted to show during what length of time no action was taken on Suburban Railway bill. (a) Evidence not part of res gestae. That could be only those facts attending the alleged bribe-giving. (b) Bill was then in committee of which defendant was only minority. He could not have controlled action had he wanted to do so. (c) When alleged bribe was given, the bill was out of committee and before the house for passage. Bill reported January 25, 1902; alleged bribe given February 2, 1902. 3. Evidence improperly admitted as to employment of Philip Stock by Turner to assist in passage of Suburban bill. (a) Evidence purely res inter alios. (b) No connection shown, whatever, between Turner and the defendant. 4. Evidence as to statements made by Charles Kratz to Philip Stock, erroneously admitted. (a) One cannot be bound by statements of another, unless they are shown to have been made with his knowledge or by his authority. Fogue v. Burgess, 71 Mo. 389; State v. Huff, 161 Mo. 487; State v. Foley, 131 Mo. 488. (b) Agency can not be proven by the admissions of the alleged agents. Beardslee v. Steinwesch, 38 Mo. 168; Sumner v. Saunders, 51 Mo. 89; Peck v. Ritchey, 66 Mo. 114. (c) In any event, there is no agency in criminal transactions. State v. McLaughlin, 44 N.E. 1025. 5. Evidence of Charles H. Turner as to legislative agency of Philip Stock, improperly admitted. 6. Incompetent evidence by Philip Stock as to value of shares of the Electric Construction Company was admitted over defendant's objection. The indictment alleged that the shares were worthless. Stock testified that he did not know the value of the shares, saying, "No, I do not know anything about it." He was asked, "Now, what was the value, Mr. Stock, of these certificates at the time you got them from Mr. Meysenburg?" Objected to because witness has stated he does not know value. Overruled, and witness answered: "I do not know. I considered them of no value." Defendant moved to strike out last part of answer. State insisted that what witness considered them worth was competent and motion overruled. 7. Evidence offered by defendant to prove that the stock in the Electric Construction Company possessed a value improperly excluded. (a) The indictment alleges that $ 9,000 were paid to the defendant as the "pretended and ostensible price, consideration and value of certain worthless and unmarketable shares of stock of the St. Louis Electric Construction Company." (b) Nolker, for the State, was permitted to testify that the shares were worth nothing in 1901. (c) Defendant offered to prove that minority stockholders of the construction company, of whom defendant was one, claimed that the stock had been rendered valueless by improper conduct of the directors and hence shares did have at least a litigated value. This was excluded. Defendant offered to prove by F. N. Judson that defendant came to the witness on February 1, 1901, and consulted him as an attorney with reference to his claim against the directors, that at this consultation the shares of stock were referred to as the basis of the defendant's claim, and that the defendant was advised that he had a valid claim and could enforce it by appropriate litigation. This was excluded. 8. Defendant offered to prove by Charles B. Stark, that in 1900 he sold to August Gehner and others, including Stock and Nolker, three hundred and thirty shares of the construction company stock, for the sum of $ 16,000. These purchasers are directors of the company. The evidence was excluded. 9. Defendant offered to prove that in 1898, one Ledley paid to defendant $ 3,533.33 and received therefor one hundred shares, par value $ 10,000, of the stock of the construction company. This was excluded. It seems idle to contend that the evidence thus excluded was not competent. (a) It was competent upon the question of motive and intent on the part of the defendant. (b) It was competent upon questions of value. (c) The evidence bore directly upon a substantial averment of the indictment, under which the State was permitted to introduce evidence, but under which the defendant was not permitted to introduce evidence. The court having permitted only one side to be heard on the proposition, then proceeded to ignore the question of value altogether -- thus muddling the case in a most exquisitely grotesque manner. (4) Where there is a total failure of proof, it is the duty of the trial court to take the case from the jury. Where it refuses to do so, the judgment will be reversed and the defendant discharged. State v. Nesenhener, 164 Mo. 461; State v. Baker, 144 Mo. 330; State v. Shackelford, 148 Mo. 493; State v. Mahan, 138 Mo. 112; State v. Young, 119 Mo. 526. (5) The indictment averred that under the agreement the sum of $ 9,000, lawful money of the United States, was paid to the defendant by Philip Stock. The evidence was that no money was paid, but a check for $ 9,000 was delivered by Stock. This evidence did not support or tend to prove the averment. It was a total failure of proof. United States v. Deenicke, 35 F. 407; Hamilton v. State, 60 Ind. 193; Haden v. Memphis, 100 Tenn. 582; State v. Greenspan, 70 Mo.App. 468; State v. Banks, 118 Mo. 112; Carr v. State, 104 Ala. 43; Haney v. State, 9 Ark. 193; Berrien v. State, 83 Ga. 381; United States v. Graves, 65 F. 488; Thalheim v. State, 38 Fla. 169; People v. Coons, 45 Cal. 672; State v. Ray, 92 N.C. 810; Mondschein v. State, 55 Ark. 389; State v. Reed, 154 Mo. 133. (6) All of the instructions given by the court, upon the point of an express agreement, were erroneous, as there was no evidence to support either of them. 1. Each required an express agreement to have been shown. There was no evidence of any agreement of any kind, express or implied. 2. Each left the jury to determine what was an express agreement. 3. The statute requires an agreement to give a vote, opinion, judgment or decision in some manner as indicated in the statute. These instructions all ignore the statute and proceed upon an hypothesis originated by the court. (7) Instructions 8 and 11, asked for by the defendant, ought to have been given. No valid reason can be given for the refusal of these instructions. They go the question of bona fides on the part of the defendant and ought to have been given. (8) The court erred in failing to fully instruct the jury. It was the duty of the court to take from the jury all the statements of Kratz testified to by Stock, and all the testimony of Stock as to interviews with or statements of Turner, and also all testimony as to transactions between Turner, Stock, Hospes, Wainwright and Nicolaus, because Meysenburg was not a party to them, and they were not brought to his knowledge. It was insisted by defendant, when the testimony was offered, that the State must first show its connection with him, but his contention was overruled. This was error. ...