State v. Williams

136 Mo. 293 | Mo. | 1896

Sherwood, J.

The crime of which defendant was convicted was known at common law, and is an ancient offense. It was entitled “embracery,” It consists in all such practices as tend corruptly to influence a juror. The crime is made up of the attempt thus to influence .a juror. Upon such attempt being made, whether successful or not, the crime is consummate. The corpusdelicti, the body, essence, and substance of the offense,, being the corrupt attempt, it is wholly inmaterial whether the would-be corrupt or gains his point or not, or whether the juror thus approached gives any verdict or not, or whether the verdict be true or false. 2 Bishop, New Crim. Law, sec. 384; 2 Bishop, New Crim. Proc., secs. 344, et seq.; 2 Archb. Crim. Prac. and Plead. (Waterman’s notes) 906.

These considerations are mentioned to show that the evidence already recited as having been given on behalf of the state, if believed by the jury (and that it was believed is evidenced by their verdict), was sufficient for defendant’s conviction. And it belonged to the jury, and was their exclusive province, to determine which of the witnesses they would believe or disbelieve.

Nor does it matter that Dickenson had already determined to hang the jury before being appz’oaehed by defendant.

Nor, further, does it matter that Dickenson was only one of the panel of forty who had been summoned, and had not become one of the smaller panel of twelve finally selected and sworn as the traverse jury; and this is so because of the language in which section 3675 is concluded: “Every person who shall corz’upt, or attempt to corrupt, any other pez’son summoned or sworn,” etc. The word “juror” is here used as a genei’ic term, and is sufficiently broad and comprehensive, used in the connection it is, to embrace one who has only been summoned on the larger panel, as well as one who has been selected and sworn on the smaller one, the members of which have been actually charged with the issue joined between the state and the then defendants.

Indeed, it might b,e said that the legislature has exhibited much wisdom herein by providing for the punishment of those who tamper with unsworn jurors, jurors only summoned on the general panel, because it will be easily comprehended that corrupt approaches are far more readily made to such jurors, than after the traverse jury has been selected, sworn, and placed in the charge of an officer. This view finds ample support in the case of State v. McCrystol, 43 La. Ann. 907, wherein it was held that although the statute only mentioned “grand or petit juror,” yet that such words were sufficiently comprehensive to embrace “tales jurors.”

That case is also authority to uphold the goodness of the present indictment. See, also, 2 Whart. Preced. Indict. & Pleas. 1022. And aside from any authority we should hold the indictment good, since it plainly and with sufficient fullness follows the language of the statute upon which it is drawn.

It was not necessary for the indictment to» allege that the panel of jurors on which Dickenson» was summoned, was summoned by order of the court, as the precedents heretofore cited show. The issuance of a venire has not been regarded as necessary in this state since Samuels v. State, 3 Mo. 68. And, ever since statutes regarding the summoning of a jury have been enacted, they have only been regarded as directory. State v. Pitts, 58 Mo. 556; State v. Jones, 61 Mo. 232; State v. Knight, 61 Mo. 373; State v. Hart, 66 Mo. loc. cit. 213; State v. Breen, 59 Mo. loc. cit. 417; State v. Ward, 74 Mo. loc. cit. 256; State v. Griffin, 87 Mo. loc. cit. 612; State v. Matthews, 88 Mo. loc. cit. 124; State v. Gleason, 88 Mo. loc. cit. 585. And even if the panel in State v. Taylor was irregularly summoned, the only way objection could be taken thereto would be by timely objection in that ease. Samuels v. State and State v. Jones, supra. The point certainly could not be .successfully raised collaterally in another case to defeat the prosecution or invalidate the indictment therein.

Now as to the instructions: Complaint is made by defendant against all of those given on behalf of the-state. Those instructions from 1 to 5 inclusive are in stereotyped form, such as have very frequently been approved by this court.. As to instruction 6 of the series, it simply accurately and properly defined the crime with which defendant is charged. Similar remarks apply to instruction 7 given on the part of the state; it was supported by the evidence, and in effect the propriety of giving it has already been incidentally passed upon when heretofore discussing the sufficiency of the-evidence. Taking the instructions just considered and those granted at defendant’s request, they certainly left-nothing to be desired as to those instructions, except as hereinafter specified.

Respecting instruction 7 refused defendant, it was properly refused as already pointed out by previous remarks. Instruction 8 was improper because it singled, out one alleged fact and directed a verdict on that alone, and in that was misleading, and therefore properly refused, and, in addition thereto, it stated a mere legal truism, which every juror would understand without an instruction, that a mere conversation with a juror about his opposition to capital punishment would not amount to the crime of bribery. Moreover, instruction 8 is virtually the same as instruction 5 given at defendant’s request. Instructions 9 and. 10 were not given and properly so, because the testimony of Sparks and O’Dell was admissible to explain the intent which actuated defendant in his approaches to Dickenson. Instruction 11 having been embodied in previously given instructions, error did not occur ia refusing its vain repetition.

At the close of the giving of instructions, defendant made the point that the court had failed to instruct-the jury upon all points necessary, etc., and excepted on that account. Whereupon the court at the request. of the state, gave instruction marked “5” limiting the testimony of Sparks and O’Dell to showing the intent of defendant. But this instruction which corrected any possible defect in former ones was objected to by defendant, and because of such objection was refused by the court. In this ruling defendant has no ground of complaint, and for the reason that a party can not complain of self-invited error. R. S. 1889, sec. 4115. Besides, the point was not made in defendant’s motion for a new trial that the court had failed to instruct, etc.

Finding no error in the record, we affirm the judgment.

All concur.