State v. Decker

GANTT, P. J.

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 ver *320 diet, 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 , and State v. Faulkner, 185 Mo. 673 , 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 courffs attention *321 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 case. It is true he requested an instruction directing the jury to acquit him, which the court overruled, but irrespective of the manner in which he raised this point, we think it entirely untenable.

Section 2534, Revised Statutes 1899, provides: “Whenever on the trial of any felony or misdemeanor, there shall appear to he any variance between the statement in the indictment or information and the evidence offered in proof thereof, in the Christian name or surname, or both Christian name and surname, or other description whatsoever, or any person whomsoever therein named or described, or any name or description of any matter or thing whatsoever therein named or described, or in the ownership of any property named or described therein, such variance shall not be deemed grounds for an acquittal of the defendant, unless the court before which the trial shall be had shall find that such variance is material to the merits of the case and prejudicial to the defense of the defendant.”

In State v. Sharp, 106 Mo. l. c. 109, the variance between the charge in the indictment that the oats were taken from a car on the track of the Wabash Railroad, and the proof that it was taken from a car on the track of the Wabash Western Railroad, was held not to he such a variance as operated prejudicially to the defendant; and in State v. Barker, 64 Mo. l. c. 285, the indictment charged the goods stolen were the property of R. C. Stevens and the proof was that they were the property of Clifford J. Stevens, and it was held that *322 while the name of the owner of the property stolen must if known be accurately stated and that this variance would have been fatal at common law, yet under the above-quoted section, it was cured unless the court trying the case should find that it was material to the merits of the case, and as the court did-not so find, it was no cause for reversal. To the same effect will be found State v. Wammack, 70 Mo. 411 ; State v. Sharp, 71 Mo. l. c. 221; State v. Smith, 80 Mo. l. c. 520; State v. Harl, 137 Mo. l. c. 256; State v. Dale, 141 Mo. l. c. 288; State v. Waters, 144 Mo. l. c. 347.

By reference to the record in this case, it appears that throughout the trial there was but one St. Louis and Suburban Company referred to and both parties treated it as one and the same. And the terms railroad and railway were used interchangeably, and so it was used by the court itself, and we think it impossible that the defendant could have been surprised or misled by the alleged variance.

II. As to the objection that the existence of the corporation could not be proved by parol, it is sufficient to say that by section 2634, Revised Statutes 1899, it is provided that “if on the trial or other proceeding in a criminal cause, the existence, constitution or powers of any banking company or corporation, shall become material, or be in any way drawn in question, it shall not be necessary to produce a certified copy of the charter or act of incorporation, but the same may be proved by general reputation, or by the printed statute hook of the State, government or country by which such corporation was created.” [State v. Wise, 186 Mo. l. c. 46; State v. Knowles, 185 Mo. l. c. 169; State v. Cheek, 63 Mo. 364 .] Moreover in this case, the defendant made no objection whatever to this method of proving the incorporation by Philip Stock, and it is now too late to raise the question in this case.

*323 III. Counsel for the defendant urges that the court erred in overruling his application for a continuance. This' application was not predicated upon the absence of witnesses, but upon the absence of one of defendant’s counsel and the sickness of another, but the real reason, it would seem, was that on account of the disturbed condition of affairs in the city of Springfield where' the trial was had the defendant could not have a fair and impartial trial. It appears from the application that a day or two before this cause was called for trial a mob had hanged three negroes in said city, and it was believed that the public mind was so aroused that it was unfair to require the defendant to go to trial in such a disturbed condition of affairs. But the crime with which the defendant was charged was committed, if at all, in the city of St. Louis, was of an entirely different nature, and the examination of the jurors discloses no presence of prejudice whatever against the defendant. It is a rather remarkable position to assume that the courts of justice should be closed in all eases merely because some crime has been committed and summary vengeance meeted out by an infuriated mob. Certainly there is nothing in this record to indicate that the defendant did not and could not have a fair and impartial trial. The application was addressed to the learned judge of the criminal court who must have been fully conversant with all the conditions, and far better able to judge of the propriety of holding his court and proceeding with his docket than we possibly can be. In our opinion there is nothing in the refusal of the continuance which indicates an abuse of discretion in requiring the trial to proceed. The cause had already been continued for seven different terms and the witnesses were all present, and, while one of the counsel was ill, the defendant still had three able and reputable members of the bar at Springfield to defend him and *324 the record indicates that they were fully alive to all propositions involved in the case.

IY. It is complained that the court overruled the motion of the defendant for a correction of the transcript from the St. Louis Circuit Court because no petition for a change of venue was contained therein. The record of the St. Louis Circuit Court recites that on March 13, 1906, the defendant in his own proper person and by his attorney filed his application for a change of venue on account of the bias and prejudice in the minds of the inhabitants of the city of St. Louis, Missouri, and thereupon evidence was taken and heard in support of defendant’s application for such change of venue and the matter submitted to the court and taken under advisement, and on March 19, 1906, the record recites, the court having fully considered the defendant’s application for change of venue doth grant the same, and it was ordered by the court that the cause be removed to the criminal court of Greene county in the State of Missouri, and that all the proceedings in the cause be certified to the said criminal court, and the defendant entered into and filed his recognizance conditioned for his appearance in the criminal court of Greene county. Inasmuch as the record discloses the ground upon which the change of venue was granted, was one recognized by the laws of this State and the prayer of the defendant herein granted, we are of the opinion that the criminal court of Greene county acquired jurisdiction of the cause. It has been repeatedly ruled by this court that it is the order awarding the change of venue which confers the jurisdiction on the court to which a cause is sent and not the petition therefor. [State v. Buck, 108 Mo. 622 ; State v. Buck, 120 Mo. 479 ; State v. Dusenberry, 112 Mo. l. c. 288.] Certainly the absence of the petition itself did not in the least prejudice *325 any of the substantial rights of the defendant, as the change was granted on his own application.

V. It is also insisted that the court committed error in admitting testimony as to the receipt of money by the defendant and other members of the combine for their official votes when a certain light bill was pending in the Municipal Assembly for their consideration and action. Reference to the record discloses that when the witness was examined and questioned as to the receipt of money for the passage of the light bill, defendant’s counsel objected to -the question, but assigned no reason whatever therefor. It has been repeatedly ruled by this court that mere objection to testimony without stating any grounds therefor will not require an examination into the admissibility of the evidence in this court. If parties desire to take advantage of adverse rulings in the admission of testimony, they must not only make timely objection thereto, but must state the' grounds therefor. [State v. Westlake, 159 Mo. l. c. 679; State v. Young, 153 Mo. l. c. 449.] But the evidence objected to was held competent in State v. Schnettler, 181 Mo. 173 .

VI. It was also insisted that the court erred in admitting the evidence of Murrell as to the conversation and acts of Lehman, one of the combine, while Murrell was in Mexico. An examination of the record fails to disclose any conversation, statement or act of either Lehman or Murrell during the visit of Lehman to Mexico, nor any reference made to the contents of the letter received, so that in no event could it have worked such prejudice to the defendant as would justify a reversal of this cause.

VTI. Defendant assigns the misconduct of the juror Thurman as a ground for reversal. Affidavits pro and con were filed and the matter was submitted to the trial judge and he declined to grant a new trial upon that ground. In the very nature of the case the *326 criminal court was better qualified to pass upon the competency of this juror and to weigh the several affidavits, than this court, and his finding thereon will not be disturbed. [State v. Taylor, 134 Mo. l. c. 138; State v. Nocton, 121 Mo. 537 .]

We have carefully considered all the assignments of error relied upon by the defendant and we discover no error in the record proper. The information was and is sufficient and all the other proceedings appear to have'been regular.

The judgment of the criminal court, therefore, must be and is affirmed.

Burgess and Foco, JJ., concur.