Opinion
May 25, 1928.
1. CONTINUANCE: Absent Witness: Irrelevant Testimony. It is not error to refuse a continuance on the ground of the absence of a witness whose testimony, set out in the application, if present, would be entirely irrelevant and superfluous.
2. ____: ____: Diligence. It is not error to refuse a continuance on account of an absent witness for whom a subpoena was issued to one county and returned not found, when defendant knew that the witness, a short time before the subpoena was issued, had departed to another county in a different part of the State and knew her address there six days before the case was set for trial. Such course does not show diligence.
3. ____: ____: ____: Departure from State. To make no effort to take the deposition or to procure the testimony of a witness who the applicant knew had moved to another state does not show diligence and his absence is not a ground for a continuance.
4. ____: ____: Charges in Other Cases. An application stating that if an absent witness, for whom a subpoena was issued to another county ten days before the case was set for trial and returned not found, were present, he would testify to some charges against defendant, charged with bribery, about receiving money from other persons — charges relating entirely to other cases and complaints against defendant, not brought out in the case in which he was tried — states no ground for a continuance.
5. ____: Discretion. The granting of an application for a continuance, and particularly in so far as it relates to diligence in the procuring of witnesses, is largely within the discretion of the trial court, and its refusal will not be held to be error on appeal in the absence of a showing that the discretion has been abused.
6. ENTRAPMENT OF DEFENDANT: Conviction. If a person is induced by any one to commit a crime for the purpose of securing his conviction, the conviction will not stand; but if the purpose to commit the crime is in the mind of the defendant at the time, or is suggested by him, the defense of entrapment will not avail.
7. ENTRAPMENT OF DEFENDANT: Making Opportunity: Criminal Intent. Officers or others persons may make an opportunity for an accused to commit a crime for the purpose of securing a conviction and his conviction will be upheld if the criminal intent originated in his own mind.
8. ____: Bribery. If the suggestion comes from the presiding judge of a county court that, if he is paid money, he can fix the deal for the sale of safes, which the court is offering for sale, to a detective at his own price, and the detective invites the judge to his room at a hotel and there the judge asks the detective how much money he will pay him if he swings the deal for him, and the detective pursues the suggestion until the sale is made and the money is actually paid, the judge cannot be heard to say that he was entrapped into committing the crime of bribery.
9. BRIBERY: Actual Sale: Unpaid Checks. Where the judge of the county court suggested to the detective that he be paid money for the sale of safes by the court, and the price of the safes was agreed upon and the sale was made, and the detective paid to the judge the bribe money he had agreed to pay him, the fact that the detective gave checks in payment for the safes, signed, not in his own name, but in a name he often used in his business, did not alter the fact that there was a complete contract, which the court could have enforced, where the court accepted the checks in payment, nor did the fact that, after the arrest of the judge, the checks were taken up by the detective, because he did not want the safes on his hands, alter the fact that there was an actual sale, nor will the fact that the sale was rescinded and that there was no real sale, avail as a defense to the charge of bribery.
10. ____: To Make a Sale: Value of Thing Sold. Where defendant, at his suggestion, was paid money for inducing the county court, of which he was a member, to sell safes to a detective, and is being tried for bribery, evidence tending to show the value of the safes is properly excluded, the only issue being whether defendant received a bribe for voting for and inducing the sale.
11. MISJOINDER: Two Counts: Submission on Both. Where both counts of the indictment charge exactly the same felony, and there is no motion to elect, the court does not err in submitting the case to the jury on both counts.
Corpus Juris-Cyc. References: Bribery, 9 C.J., Section 3, p. 404, n. 28. Criminal Law, 16 C.J., Section 57, p. 91, n. 63; Section 829, p. 458, n. 76; p. 459, n. 88. Indictments and Informations, 31 C.J., Section 359, p. 790, n. 15.
Appeal from Wright Circuit Court. — Hon. C.H. Skinker, Judge
AFFIRMED.
Don O. Vernon. L.C. Mayfield and Page Barrett for appellant.
(1) Upon the filing of a motion for a continuance which sets out the absence of a material witness and that the testimony is unobtainable, except by this witness and the probability of procuring the witness, a continuance may be granted to either party for a good cause shown. Secs. 3996, 3997, R.S. 1919. Where the application for a continuance shows the importance of evidence absent witnesses would have testified to had they been present, and diligence in trying to procure the witnesses, continuance should have been granted. State v. Hesterly, 182 Mo. 16. Refusal to grant a continuance to one showing sufficient cause for it has uniformly been considered by the court a sufficient ground for reversal. McKay v. State, 12 Mo. 422. If defendant's application for a continuance is properly made and material witnesses are absent and unobtainable, it is error to refuse a continuance. State v. Dewitt, 152 Mo. 76. Where there was no delay in obtaining material witnesses after a change of venue was granted, and the application was in proper form it is error to refuse a continuance. State v. Wade, 270 S.W. 301. (2) What others have offered for property is evidence of its value. 1 Wigmore on Evidence, sec. 463. Evidence of the value of goods is admissible to show fraudulent intent. Therefore it should also be admissible to show lack of fraudulent intent. Wood v. United States, 16 Pet. 342, 10 L.Ed. 987; Bottomely v. United States, 1 Story, 135. In a bribery case value of property is admissible to show there was no corrupt motive. State v. Meysenburg, 171 Mo. 1; 1 Jones, Comm. on Evidence, sec. 169. (3) The case was submitted on two counts, and the jury were not told they could convict on only one, and two separate felonies were charged in the indictment. This was error. State v. Brown, 296 S.W. 127; State v. Link, 286 S.W. 12; State v. Carrigan, 210 Mo. 351; State v. Guye, 252 S.W. 955; State v. Morelock, 291 S.W. 1078. The State should elect on which count it will stand, and defendant cannot waive that. State v. Preslar, 290 S.W. 142. (4) Active measures to persuade the accused and induce the commission of a crime, by the party injured, or those acting for him duly authorized in the premises, constitute a complete defense. Connor v. People, 18 Colo. 373, 25 L.R.A. 341. Where the defense is entrapment and the evidence consists of testimony by officers joining with defendants for the alleged purpose of detecting their crime, to warrant a conviction the officers must have had reasonable suspicion that defendants were engaged in the commission of a crime, or were about to be so charged, or the original suggestion or initiative must have come for the perpetrators. United States v. Certain Quantities of Intoxicating Liquors, 290 F. 824. One who had no intention to commit a crime, but was lured into a crime by officers of the law, cannot be convicted. Ritter v. United States, 293 F. 187; Woo Wai v. United States, 223 F. 412; Cermak v. United States, 4 F.2d 98. A defendant cannot be convicted of a crime which was provoked or induced by a Government officer or agent, and which otherwise would not have been committed. United States v. Lynch, 256 F. 982. (5) Before there can be a sale there must be an intent to sell and an intent to purchase, a vendee and a vendor. Palmer v. Jordon Mach. Co., 186 F. 496; In re Allen, 183 F. 172. A county court is a court of record and must keep a full report of their proceedings. Sec. 2323, R.S. 1919. Action of a county court must be shown by its records, and oral testimony is inadmissible to prove the making of a contract with the county. In this case was no proof of sale by record of the court. Dennison v. County of St. Louis, 33 Mo. 168; Johnson County v. Wood, 84 Mo. 489.
North T. Gentry, Attorney-General, and Claud Curtis, Special Assistant Attorney-General, for respondent.
(1) The trial court committed no error in overruling defendant's application for a continuance. This matter is largely within the discretion of the lower court and in the absence of abuse of that discretion the trial court's action will stand. State v. Cockriel, 285 S.W. 443; State v. Tracy, 294 Mo. 372; State v. Harrison, 285 S.W. 85; State v. Salts, 263 Mo. 314; State v. Cain, 247 Mo. 700. Said motion did not state facts to show that due diligence had been exercised by the defendant to have present in court the witnesses of whose absence he was complaining. State v. Wilson, 242 S.W. 886; State v. Salts, 263 Mo. 304; State v. Harrison, 285 S.W. 83. Furthermore, where there is no probability that if the absent witness had appeared and testified it would have had any effect on the result of the trial, the trial court commits no error in overruling an application for continuance. State v. Temple, 194 Mo. 251. (2) Where two offenses arise out of the same transaction, and are so far cognate as that an acquittal or a conviction of one would be a bar to a trial for another, a joinder is proper, the submission of both counts to the jury is proper, and where defendant is convicted on only one count his rights have not been prejudiced. State v. Young, 266 Mo. 723; State v. Carragin, 210 Mo. 351; State v. Christian, 253 Mo. 382; State v. Cannon, 232 Mo. 205; State v. Brown, 296 S.W. 127. Where defendant is charged in an indictment containing two counts, each count charging a felony crime, no reversible error is committed by submitting both counts to the jury provided defendant is convicted on only one count. State v. Gholson, 292 S.W. 28; State v. Sharpless, 212 Mo. 203; State v. Morris, 263 Mo. 355. (3) The defense of entrapment will not defeat a prosecution where the evidence shows that the criminal design originated with the defendant and that he willingly committed the crime for which he is being tried. State v. Seidler, 267 S.W. 424; State v. Feldman, 150 Mo. App. 120; State v. Lueas, 94 Mo. App. 120; State v. Quinn, 170 Mo. 176; State v. Chappell, 179 Mo. 324; State v. Richie, 180 S.W. 2; State v. Cummings, 248 Mo. 509. The trial court committed no error by excluding evidence offered by the defendant to prove the value of safes. What was the value of said safes or whether there was an actual sale of the same was not an essential element of the crime for which defendant was convicted. If defendant received a reward for voting a certain way in a matter or proceeding pending before him in his official capacity he is guilty of having received a bribe and the value of the safes in question have nothing to do with the question as to whether defendant accepted a bribe. State v. Lehman, 182 Mo. 459; State v. Butler, 178 Mo. 272; Sec. 3178, R.S. 1919.
March fourth, 1926, a jury found the defendant guilty of accepting a bribe, and his punishment was assessed at imprisonment in the State Penitentiary for two years. Judgment was rendered accordingly, and he appealed.
The specific charge against defendant was that on a certain day in November 1925, while Presiding Judge of the County Court of Laclede County, he corruptly and feloniously made an agreement with one Max Lander, alias Milton Lamb, for a consideration of $150, to "cast and express his official vote, opinion, judgment and decision," in his official capacity as Presiding Judge of the County Court of Laclede County, in favor of a proposal of the said Lander in relation to the purchase of certain cabinet safes, described in the indictment, and in pursuance of that agreement the defendant did unlawfully and feloniously accept from the said Lander, alias Lamb, the sum of one hundred and fifty dollars as the bribe, etc., and did in the manner agreed upon cast his vote, judgment and decision as presiding member of the county court. The indictment is of great length and set out in two counts, each describing practically the same offense. The indictment was returned by a grand jury in Laclede County. A change of venue was awarded on the application of defendant to Wright County, where the case was tried.
The circumstances giving rise to the prosecution were these: Homer Davenport, Probate Judge of Laclede County, went to St. Louis to the Secret Service Agency of E.H. Hargrave for the purpose of consulting Hargrave regarding supposed graft in the County Court of Laclede County. He met Mr. Hargrave and subsequently had correspondence with him, with the result that a detective was sent out from St. Louis to be paid ten dollars and expenses for his work. Later Max Lander came to Lebanon from St. Louis and registered at the hotel as Milton Lamb. He had an interview with Davenport in regard to the purpose of his coming, and Davenport prepared him by putting in his possession $150 in marked bills.
Three safes owned by Laclede County were for sale. The new court house had been provided with vaults so that safes were no longer needed; the case turned upon negotiations for the sale of those safes.
Max Lander testified for the State that he arrived in Lebanon November 5, 1925. He went to the court house and met the county collector and county clerk, and was introduced to the judges of the county court. He told the judges of the county court that he understood some safes were for sale, and at his request they showed them to him. The price which the judges had fixed upon the safes was about $1360, being the original cost price with twenty-five per cent off. Lander said that he would have to think the thing over and probably would make an offer.
After Lander had finished his conversation with the judges and had started away, Judge Murphy said something which caused him surprise, to the effect that he (Murphy) "could fix this deal for me at my price." That night Lander telephoned to Murphy, who lived several miles in the country, and said, relative to the little conversation about the safes, that he was in a hurry to leave Lebanon and would like to talk it over that night. Murphy assented. Lander hired a taxi and started to Murphy's place in the country, but on account of bad roads he turned back. The next morning before he got up Murphy came to his room in the hotel, talked about the safes a while, and said: "Now, let's get down to business; if I can swing this deal for you how much money will you give me?"
Lander considered a while and told him $150. Murphy asked: "Can you have it in cash?" Lander answered, "Yes." Murphy said: "No check." Lander replied: "All right. I will have it in cash."
Then it was agreed that Lander should come to the court room and make an offer of $850, and stand pat on his offer, and Murphy was to talk the other judges over. In another conversation with Murphy, Lander agreed to be in the court room at three o'clock in the afternoon to make his offer. Lander came late, but when he got there he held several conversations with the judges. They then talked together in the vault and when they came out Judge Murphy asked a thousand dollars for the safes. Lander would not go higher than $850. Murphy said the offer was accepted. Lander gave two checks signed "Milton Lamb" on two different banks in St. Louis, aggregating the $850. He took a receipt and then started for the hotel. Murphy said he would drive Lander down town. The two got in Murphy's car and after they had got a short distance from the court house Murphy said:
"Well, that's fine. That is all fixed up nice. I had a heck of a time with those other fellows, especially Judge Robinson, but I told Judge Robinson there was a cash cut in this for him, and I told him that I was getting a cash cut on the side, he fell for that and then it was easy to talk over the other bird."
When they got to Lander's room he paid Murphy the one hundred and fifty dollars in marked bills. They then went down stairs where Lander gave a signal to the sheriff, indicating that the money had been paid. Murphy was immediately arrested. When asked if he had any money he said he had about thirty-five cents, opened his purse and showed it. Asked if that was all, he said it was. He was searched and the one hundred and fifty dollars was found in his pockets.
Murphy's defense was that after the sale he went to Lander's room to take a drink with Lander, that Lander told him he had been so nice he was going to give him $150, and although he protested, Lander shoved the money into his pocket. Then they went down stairs and the officer found it on him.
I. Defendant first complains that the court erred in overruling his application for a continuance. He sets up that five witnesses. Edward Hargrave, Claude Davis, Willie Continuance. Goodwin, Minnie Darrow and J.M. Woods, were absent. For diligence the affidavit shows that he had subpoenas issued in Laclede County, with a return stating that the witnesses had not been found.
The State filed a counter-affidavit stating that subpoenas were not issued for Hargrave until February 25th, and for the other witnesses February 20, 1926. The matter was brought up March 2, 1926.
Hargrave was the manager of the Hargrave Secret Service Agency in St. Louis. The affidavit stated that he would testify to that fact, and that he talked over the matter with Max Lander, alias Milton Lamb, before he went to Lebanon to direct how to effect the scheme against the defendant. This testimony, if offered, was entirely irrelevant and superfluous. The State showed that Lander went to Lebanon for the very purpose of investigating the situation relating to supposed graft in the county court. The question at issue was whether the defendant voluntarily sought the bribe in order to make the sale of the safes. The original plan for the investigation would cut no figure.
As to the other witnesses the application said that Willie Goodwin, if present, would testify to the whereabouts of the defendant at some time during the day on which the trade was made, but not at the time when the defendant went to Lander's room at the hotel. That Minnie Darrow would testify to a conversation between Lander and defendant about going up to Lander's room to take a drink.
The counter-affidavit shows that a subpoena was issued for each of these witnesses on February 20th. That Minnie Darrow had gone to Springfield a short time before, and that the defendant knew her address there on the 24th of February. That Willie Goodwin had moved to the State of Colorado, a matter of which the defendant was informed, and no effort was made to take his deposition or procure his testimony in any way. The court in overruling the application found that there was no diligence shown as to those two witnesses, even if their testimony was competent.
The application says that Claude Davis, if present, would testify as to some charges against the defendant in regard to receiving money from other persons — a matter relating entirely to other cases and complaints against the defendant, not brought into this case at all.
The application states that William Wood, if present, would testify that Max Lander, or Milton Lamb, had no money in the banks on which he drew the checks. That testimony was entirely irrelevant. We consider the subject in Paragraph III, below.
The granting of a continuance, especially as to the matter of diligence in the procuring of witnesses, is largely within the discretion of the trial court. We do not find in this case that the discretion of the trial court in overruling the application for continuance has been abused. [State v. Wade, 270 S.W. 298; State v. Tracy, 294 Mo. l.c. 380.]
II. It is next claimed that the evidence is insufficient to support the verdict because the defendant was Entrapment. entrapped into the act of which he was accused. The question of entrapment frequently has been before the courts for discussion.
It was said by this court in State v. Chappell, 179 Mo. 324, l.c. 332: "The mere fact that a person is solicited or encouraged in the commission of an offense furnishes no defense, in event he yields to such solicitations and actually perpetrates the crime."
Where two or more persons conspire to commit a crime, and the person against whom the crime is premeditated becomes apprised of the intention, and arranged to have them apprehended in the act, he does not thereby assent to their conduct nor furnish them any excuse.
In Ritter v. United States, 293 Fed. (C.C.A.) 187, on the question of entrapment it was said (l.c. 189):
"Public policy forbids that officers sworn to enforce laws should seek to have them violated. . . . So that, when an officer induces a person, who has had no intention of committing a crime, to violate a law, courts will not lend their aid in punishing the person thus lured into crime."
That states the principle upon which defendants in entrapment cases are held not guilty. It is quoted from an older case, and the quotation continues: "The idea of the law is, however, that a man who has engaged in unlawful business may have an opportunity, and the Government officers may afford him an opportunity, to commit a crime. If a Government officer goes into a place, asks for a drink of whiskey, and it is given to him upon his solicitation, convictions based upon such evidence are frequently sustained." [See State v. Feldman, 150 Mo. App. 120; State v. Seidler, 267 S.W. (St. L. Ct. App.) 424; United States v. Certain Quantities, Etc., 290 F. 824, l.c. 827; Luterman v. United States, 281 F. 374.]
The distinctions seem to be well defined. If a person is induced by anyone to commit a crime for the purpose of securing a conviction, the conviction will not stand. But if the purpose to commit the crime is in the mind of the defendant at the time, or suggested by him, defense of entrapment will not avail. Officers or other persons may make an opportunity for one to commit a crime for the purpose of securing a conviction and a conviction so obtained will be upheld if the criminal intent originated in the mind of the accused. In the present case the detective was provided with money for the purpose of investigating graft in the county court. Apparently he did not know what judge of that court, if any one of them, was susceptible to bribery. The old safes of the county were on hand and for sale. That was suggested to him as a means for making his investigation. After conferring with the judges of the county courts about the purchase of the safes, Murphy said he could "fix this deal for me at my own price." This was a surprise to Lander; a suggestion coming from the defendant himself. They failed to have a conference that night, but the next morning before Lander was up. Murphy came to his room: "Now let's get down to business: if I can swing this deal for you how much money will you give me?" Thereupon the deal was made. There could hardly be a plainer case where the initiative was with the party charged. The detective simply furnished the opportunity for him to commit the crime. It was clearly not a case of entrapment which would excuse the defendant.
III. It is claimed further that there was no real sale, and therefore the bribe was not given for the purpose Actual Sale: of inducing the sale; that there was no intent to Unpaid Checks. sell.
Even if that were a defense it would not avail here. There was an actual sale. While Lander signed two checks in the name of Milton Lamb, he said it was a name that he often used in his business, and his checks had been cashed in that name. The contract was complete because the county court accepted his checks in payment for the safes. It was a contract which the county court could have enforced against him, even though there was no money on deposit to meet the checks. There was no evidence to show that he was insolvent and unable to respond in an action for the purchase price. After the arrest the checks were taken up, Lander said, because he didn't want those safes on his hands. It was a time of excitement, and the natural construction of the situation would be that the sale was impliedly rescinded.
IV. Defendant offered evidence which the court excluded, tending to show the value of the safes. The evidence was irrelevant. It would not matter whether the safes were sold for the actual value or more or less. The only question Value of was whether the defendant received a bribe for Thing Sold. voting for and inducing the sale.
V. It is claimed further that error was committed in submitting the case to the jury on two counts, each charging a felony. There was no motion to elect, and besides each count Misjoinder. charges exactly the same offense. There was no error in that. [State v. Brown, 296 S.W. 125, l.c. 127.]
We are unable to discover any error in the record.
The judgment is affirmed. All concur, Walker, J., in the result.