State v. Williford

111 Mo. App. 668 | Mo. Ct. App. | 1905

NORTONI, J.

(after stating the facts). — By sec. 22, art. 2, of the Constitution of Missouri, the accused is guaranteed the right to “meet the witnesses against him face to face,” but the accused can waive this constitutional right. State v. Wagner, 78 Mo. 644; State v. Poulson 29 Ia. 188; Cooley’s Const. Lim. (7th Ed.), 450-452; Merrill v. City of St. Louis, 83 Mo. 245; State v. Hope, 100 Mo. 347, 13 S. W. 490. In the present case, the testimony in the former trial was introduced against defendant without objection from him and in accordance with the agreement entered into by his counsel and the prosecuting attorney. This amounts to a waiver on his part beyond all question, and the court permitted no error in admitting the testimony taken in the former trial under those circumstances.

The objection that the evidence is insufficient to support the finding of the court is well taken. To support the conviction under sec. 2045, R.. S. 1899, for embracery in this case, it was incumbent upon the State to prove that defendant attempted “improperly to influence any juror in any civil or criminal case ... in relation to any matter pending in the court . . . before whom such juror shall have been summoned or sworn.”

The portion of this section quoted applies to one class of persons upon whom an attempt to improperly influence must be made in order to come within its purview, to-wit: “Any juror” that is a qualified and acting juror. The word “juror” as employed in the first paragraph of the section has reference to the man who has been sumoned, ■ sworn and empaneled and thus constituted and made a juror in one of the cases mentioned in the statute. The person who attempts improperly to' influence such jurors is guilty under the first paragraph. The information in the case at bar is predicated upon this paragraph. It charges J. C. Wallace to have been a juror in the Hall case. The proof does not sustain it.

The second paragraph of the section treats of another class. It is “or anyone summoned as a juror77 and has reference to one summoned as a juror, who may, by the process of taking the oath, answering on the voir dÁre and finally being sworn and empaneled, become a juror. This paragraph levels the penalty of the law at the person who seeks to improperly influence one summoned for jury service in a case mentioned, whether such person shall have been sworn and empaneled or not. If he be summoned for jury service in a case pending in the court it is sufficient. But even in that case a conviction could not be sustained by merely showing that the person summoned for jury service had been summoned and sworn without going further and showing that there was some case, civil or criminal, then pending in the court before whom such juror was sunn moned or sworn and that such person had been summoned for the purpose of rendering jury service therein and that an attempt had been made to improperly influence him. As said above, the information stated a case under the first paragraph and the lower court proceeded upon that theory. In order to sustain a conviction, it was essential that it be made to appear that J. C. Wallace had been summoned, sworn and empaneled and was a juror in the case set out in the information and that such case was a “matter pending in the court.” To have shown this it was incumbent upon the State to introduce the records in the case of State v. Hall, showing that such case was pending in the court, as charged in the, information, and that J. C. Wallace had not only been summoned but had, in addition thereto, been sworn and empaneled therein, and thus made and constituted a juror in such case. 3 Greenleaf on Evidence (16th Ed.), sec. 101; State v. Shoemaker, 7 Mo. 177; Kelley, Crim. Law & Prac., sec. 241.

The evidence in the record on this matter is as follows:

“Q. I will ask you if you were summoned on a jury of forty men about the fifteenth of last May in the case of State of Missouri v. Floyd Hall, defendant? A. Yes, sir.”

■ All that this eviednce shows is that forty men had been summoned for jury service in the Hall case. Wallace was one of them, and this brings him within the provision of the second and not the first paragraph of the section upon which the information is based. It fails to show that he was either sworn or empaneled as a juror in that or any other case. There was no evidence before the court showing that such a case as State v. Hall was pending therein and that the jury of which J. 0. Wallace was a member had been empaneled and for this reason the case must be reversed.

It is not necessary to notice the point made on the refusal of the court to permit the prosecuting attorney to enter a nolle prosequi.

For the reason above stated, the judgment is reversed.

All concur.