State v. Davis , 112 Mo. App. 346 ( 1905 )

NORTONI, J.

(after stating the facts). — Embracery, with which appellant is charged, was an offense at common law and is of ancient origin. It consists, in. short, of an attempt to corruptly influence a jury. [Bishop, New. Crim. Law (8 Ed.), 384; State v. Williams, 136 Mo. 293, 38 S. W. 75.] The books say: “Embracery is an attempt to influence a jury corruptly to one side by promises, persuasions, entreaties, money, entertainments and the like.” [Bishop, New Crim. Law. (8 Ed.), sec. 384; Hughes on Crim. Law & Pros., sec. 1534; 1 Blackstone, Com., 140.] “It seems clear that any attempt whatsoever to corrupt or influence or instruct a jury or in any way incline them to be more favorable to one side than to the other, by money, promises, letters, threats or persuasions, except only by strength of evidence and the argumnts of counsel in open court, at the trial of the cause, is a proper act of embracery whether the jurors on whom such attempt is made give any verdict or not, or whether the verdict given be true or false.” [Hawkins Pl. of Crown, vol. 1, ch. 851; Bishop, New Crim. Law (8 Ed.), sec. 384.]

Our statute, section 2045, upon which the indictment is based, reasserts the common law rule and makes it an offense by substituting the word “improperly” for “corruptly” to attempt to influence the jury or one summoned as a juror and extends the law so as to' cover the case of referees and arbitrators as well. The statute is as follows:

“Every person who shall attempt improperly to influence any juror in any civil or criminal case, or anyone summoned as a juror, or anyone chosen an arbitrattor or appointed a referee in relation to any matter pending in the court or before the officer before whom such juror shall have been summoned or sworn, or pending before such arbitrator or referee shall, upon conviction, he adjudged guilty of a misdemeanor.”

It seems from the authorities supra, that the common law treated any improper attempt to influence the jury as a corrupt attempt and embracery being an attempt as, well as a consummated injury, there being no such thing as an attempt to commit it as an attempt is the offense itself. [Bishop, New Crim. Law (8 Ed.), 389.]

The evidence wholly fails to show that appellant attempted to improperly influence a juror to the side of Jones by promises, persuasions, entreaties, money, entertainment and the like, in fact the evidence wholly' fails to show that appellant did or said anything other than that Jones was a good fellow. The appellant being the defendant in a trial before a jury, where the only charge against him was what he said and the manner in which it was said, had the right to< have the words he used or their substance at least, detailed to the jury so that the jury might judge as to whether or not he attempted to improperly influence the juror, Ward. The mere statement of Ward that appellant talked to him about the case and that he presumed and inferred from the way he approached him that he was on the side of Jones, is not enough to support the finding of guilty. The charge is a serious one. The law presumes appellant to be innocent thereof and he stands innocent until the State overcomes this presumption by proof showing such facts which the jury might reasonably infer beyond a reasonable doubt that he sought to improperly influence the juror. It is not enough to show that the opinion of Ward, the juror, he sought to improperly influence him, because it is not upon the opinion of Ward on the facts that he should be acquitted or convicted, but it is upon the opinion of the jury, summoned, impaneled and sworn to try his case. It is not enough to show that appellant talked to the juror, Ward about the case, but it must also be shown that he attempted in some manner to improperly influence the juror by his conversation or conduct and what he did tending to improperly influence the juror or what he said or substantially whathe said, tending to improperly influence the juror, should be given in evidence, that the jury'may know and understand and be able to pass intelligent judgment upon,the intent and purpose thereof. A juror approached, might feel that the party approaching him was seeking to improperly influence his mind and judgment and be so impressed with the thought that he would take an oath to that effect on the witness stand and when all of the evidence as to what was said and done were detailed to a fair and impartial jury under oath, that jury might be persuaded and hold- that there was nothing in the conduct or conversation on the part of the party charged which showed him to he guilty o f an attempt to' improperly influence such juror. The Constitution guarantees appellant the right to the opinion of the jury upon what he said and did and whether its purport, intent and purpose was to improperly influence the juror, Ward. Appellant is not bound by the expressions of opinion by Ward that he, Ward, presumed or inferred that he intended to improperly influence him, and his conviction upon such opinion, evidence without any statement of facts showing conduct on his part which would convince a fair mind that he had attempted to improperly influence Ward, cannot be sustained. The mere fact that he said Jones was a good fellow, alone, without some other statements, is not enough to1 convict a man of attempting to improperly influence the person in whose hearing or to whom the words were uttered. The court erred in refusing the request for a peremptory instruction directing appellant’s acquittal. For the reason given, the judgment is reversed and the appellant discharged.

All concur.