Missouri v. Ragsdale

59 Mo. App. 590, 1894 Mo. App. LEXIS 485

• Court: Missouri Court of Appeals
• Decided: December 3, 1894
• Status: Published

Opinion

Smith, P. J.

The defendant, who, being mayor of the city of Moberly, was tried and convicted on an information based on section 3732, Revised Statutes, charging him with willful and malicious oppression in office, and which is as follows:

“Wm. Palmer, prosecuting attorney within and for the county of Randolph, state of Missouri, informs the court upon the affidavit of Joel K. Twym^n, that James W. Ragsdale, on or about the thirtieth day of June, 1893, at the'city of Moberly, county of Randolph and state of Missouri, being then and there the mayor of the said city of Moberly, in said county and state, wickedly intending and contriving to injure and oppress affiant and one A. J. Edwards, did then and there under color of his said office of mayor of said city of Moberly, unlawfully, willfully, maliciously and corruptly order and command one John Penn, a policeman of said city of Moberly, the said Penn in the discharge of his duty as a policeman of said city, being then and there subject to the orders of said James W. Ragsdale, as mayor of said city, to arrest and imprison in the city prison of said city this affiant, and the said A. J. Edwards; and that in obedience to said unlawful, willful, malicious and corrupt order and command of said J. W. Ragsdale, mayor as aforesaid, said policeman, John Penn, did unlawfully arrest and take into custody both affiant and said A. J. Edwards, said J. W. Ragsdale being then and there present; and that while affiant and said A. J. Edwards were so unlawfully held in custody by said John Penn as aforesaid, said James W. Ragsdale, under color of his said office, did unlawfully, willfully and maliciously assault affiant and said A. J. Edwards, without legal cause or excuse, with a large cane, and did unlawfully, willfully and maliciously under color of his said office, then and there disturb the peace of affiant and said A. J. Edwards by cursing them in a loud and angry manner, and by threatening to assault them with said cane, and by applying to them the following vile epithets, in the presence of the said John Penn and divers other persons, in a loud tone of voice, to wit: ‘Lock them up, the God damned thieving sons ' of bitches; ’ ‘get in there, you God damned thieving sons ,-of bitches,’ meaning affiant and said A. J. Edwards, (which said vile and abusive language said J. W. Ragsdale then and there repeatedly bestowed upon affiant and said A. J. Edwards, and after so assaulting and insulting affiant and said A. J. Edwards, the said J. W. Ragsdale, mayor of the city of Moberly as aforesaid, without reasonable or justifiable cause therefor, and under color of his said office of mayor as aforesaid, did then and there willfully, unlawfully, maliciously and corruptly imprison and caused to be imprisoned in the city prison of the said city of Moberly, this affiant and said A. J. Edwards for a long time, to wit, for the space of about one hour and a half; the said James W. Ragsdale, mayor as aforesaid, well knowing at the time that he so ordered and commanded the said John Penn, policeman, as aforesaid, to arrest affiant and said Edwards, and imprison them, and at the time'of their arrest and imprisonment in said city prison of said city of Moberly as aforesaid, that neither he, the said Jas. W. Ragsdale, nor the said John Penn, policeman as aforesaid, had any legal warrant for the arrest of this affiant and said Edwards, or either of them, and that he, the said Ragsdale, well knew that this affiant and the said Edwards, nor either of them, had committed any violation of law or offense against the laws of the said city of Moberly, or the state of Missouri, and that they were at said time in the peace of said city and state, and unoffending against the' peace and dignity of the state. ¥i. Palmer,

“Prosecuting Attorney.”

The defendant, who has appealed, assails the judgment on several grounds which we shall now proceed to notice. He objects that the trial court erred in refusing to permit him on the cross-examination of the witness Twyman to inquire, first, whether he testified before the grand jury; second, whether he was sent for to make the affidavit on which the information -was based, and, third, where he first went when he got to Moberly, and whether he was advised by of ws to prosecute the defendant. It is not perceived that this ruling was erroneous. These questions did not, from their character per se, show that it was thereby sought to elicit testimony that was pertinent to any material issue of fact that had been thus far developed during the trial. Any response that could have been given bythe witness would have been immaterial so far as anything appeared before the court. And the record does not disclose that the defendant stated to the court what the purpose of the inquiries was, whether to lay the foundation for the impeachment of the witness, or for some other legitimate purpose. Of course, if it was the purpose to show that his testimony before the grand jury was different from that which he had given at the trial, it was competent to show this by a member of the grand jury who heard him testify before that body. R. S., sec. 4086; State v. Parker, 96 Mo. 382. But how was the court to know that the response of the witness would be paterial testimony unless aided bythe disclosures of counsel making the inquiries at the time the objections were interposed thereto.

The rule has long been observed in .the appellate courts of this state to the effect that they' will not reverse a judgment .for refusal of the trial court to i admit evidence if it can not determine from the record whether the evidence is material or not. Ball v. Independence, 41 Mo. App. 469; Jackson v. Harden, 83 Mo. 175; Bank v. Aull, 80 Mo. 199; Kraxberger v. Roiter, 91 Mo. 404. We can not tell from the record whether it'was the purpose of defendant to lay the foundation for the impeachment of the witness, or not; and so we can not determine, after all, whether such rejected testimony is material or not, and therefore we can not, under the rule just referred to, condemn the ruling of the trial court. It is, of course, -true that- a witness may be impeached by proof that he has made statements out of court contrary to what he has testified to at the trial, but before this can be done it is generally necessary to ask him as to the time, place and person involved in the supposed contradiction. The questions were too general and indefinite to be allowed under this rule.

Again, suppose the witness did consult the prosecuting attorney and others as to the propriety of making the affidavit on which to base the information; or, suppose other persons advised the same, what of it? If the answers to the questions asked of the witness had proved these facts, would they have been material in any way? Certain it is that they could not have had the effect to shake his credit by injuring his character, or to in any respect humiliate or disgrace him. In no view of the matter which we are able to take can we find fault with the ruling of the trial court in that regard.

The defendant further objects that the trial court erred in sustaining the objection of the prosecuting attorney to the testimony offered as to the witness Edwards’ “general character as a law abiding, orderly man in the community” where he lived. The rule has been long established in this state that it is proper to extend the inquiry not only to the general reputation of a witness for truth and veracity, but to the reputation of a witness in respect to his general moral character. State v. Raven, 115 Mo. 420; State v. Miller, 71 Mo. 590; State v. Grant, 76 Mo. 236; State v. Rider, 95 Mo. 486; State v. Shroyer, 104 Mo. 444. But it is quite obvious that the inquiry here is not comprehended within this rule, and therefore it was not proper to allow it to be made.

The witness Edwards in detailing the circumstances of his arrest, stated what he said to the policeman at the time he was arrested by him under the order of the mayor. It is objected that this testimony is |)reju-' dicial to defendant. It appears that defendant was then present, and if he were not, the statement of the the officer to witness that he would have to arrest him and the response and inquiry of the witness then made as to what he had done to cause his arrest, was part of the res gestee, and properly admitted on that ground, if upon no other.

The defendant further objects that the first instruction given by the court for the state is erroneous, but it is a sufficient answer to this to state that the record nowhere shows that there wTas any objection or exception taken by defendant to the action of the court in giving this instruction. In the motion for a new trial the giving of instructions for the state is not made one of the grounds therefor. We can not, therefore, notice this point of the defendant’s objection.

The defendant further objects that the trial court erred in refusing to give his instructions numbered 6, 7, 8, 9, 10 and 11, and in giving those numbered 6, 7, 8 and 9 in a modified form. It appears by the record that to the action of the court in the giving of the above instructions as modified, no exception was taken, or if so, none preserved by the bill of exceptions, and hence we are without power to review the action of the court in that respect.

The sixth instruction asked by defendant and refused by the court declared that it is admitted that the defendant was, at the time of the commission of the offense charged in the information, mayor of the city of Moberly, and as such mayor it was his duty to be active and vigilant in enforcing all laws and ordinances for the government of the city, and that he had the superintending control of all the officers and affairs of the city, and the laws of said city imposed upon him the duty to take care that the ordinances of the city, and the state laws relating to the city are complied with; “and if you find and believe from the evidence, after a careful consideration of all the facts and circumstances proved, that defendant in what he said and did at the time complained of in the information, was said and done by him under an honest and conscientious belief that he was simply discharging his duty as mayor of the city of Moberly, then you will find him not guilty, although you may further find and believe from the evidence, that said Twyman and Edwards were guilty of no offense against the laws of the city of Moberly, or the state of Missouri, and that said Ragsdale did wrong in ordering them arrested and imprisoned; for a public officer, although he commit a gross mistake, and innocent parties suffer thereby, is not responsible criminally therefor, unless he acted from willful, malicious and (corrupt) motives.”

The court gave on its own motion an instruction,, without objection, which was word for word the exact counterpart of the foregoing, except that it omitted the word “corrupt” which appears in the latter. The court refused defendant’s seventh instruction, one given likewise without objection on its own motion in lieu thereof, which was not different, except it also omitted the word “corrupt.” It thus appears that these two instructions were refused for the reason only that they proceeded upon the theory that the acts charged in the information constitute no offense unless done with a corrupt motive. The language of the statute on which the information is founded is “that every person holding any office of public trust who shall be guilty of willful and malicious oppression, partiality, misconduct, or abuse of authority, in his official capacity, or under color of his office * * * shall be deemed guilty of a misdemeanor.” R. S. sec. 3732. It is thus seen that the ingredient of corruption does not enter into every act of oppression, misconduct, or abuse of authority by an officer in his official capacity and under color of his office as denounced by the statute.

The word “corrupt” or “corruption” is variously defined by lexicographers and law writers. “Corrupt” is defined in Anderson’s dictionary of Law to mean “to do an act for unlawful gain.” And the same author defines the word “corruption” to be, “An act done with intent to gain advantage not consistent with official duty and the rights of others; something forbidden by law, as certain acts by arbitrators, election or other officers, trustees; a champertous contract; a contract of usury.” In 2 Century Dictionary, 1282, “corrupt” is defined to be “dishonest, without integrity, guilty of dishonesty, involving bribery, or a disposition to bribe or be bribed; as corrupt practices, a corrupt judge.”

The evidence in this case shows that the defendant, the chief officer of a city, who had control of its policemen, without cause, arbitrarily ordered a policeman to arrest and imprison two unoffending citizens, and while so under arrest and in their defenseless condition, he not only used to wards, them the most profane, opprobrious and insulting language, but wantonly assaulted them with a 'walking cane. That his acts were willful and malicious, is not disputed; but it is contended that such acts must also be prompted by a corrupt motive. There may be, and no doubt are, cases like the present where, to the ingredients of willfulness and malice is added that of corruption. If the acts here proved were shown to have been prompted .by some dishonest or knavish motive, as for example, such as bribery or other unlawful gain, or some dishonest benefit or advantage to the officer or to some one in favor with him, or to affect the result of a city election, and the like, then such acts of oppression and misbehavior of the officer would not only be willful and malicious, but also corrupt. But to say that such acts, though willful and malicious, do not constitute a misdemeanor under the statute unless also corrupt, we think is absurd.

No case has been cited where the contention of the defendant in this respect is countenanced. Certainly none of the cases cited from the reports of the supreme court of this state bear the slightest resemblance to this. That of State v. Gardner, 2 Mo. 22, was where a justice of the peace, to the great perversion of public justice, issued a summons to a constable commanding him to summon one Spencer to appear before the justice “to answer a pretended demand in favor of one black Socker, a negro man slave, etc.” It has been held that the indictment should charge that the act of issuing the summons should have been done knowingly, willfully and corruptly. State v. Hein, 50 Mo. 362, was where the justices of the county court, under color of their officer as such, drew and-ordered to be drawn on the treasurer of the county a warrant,” etc. The indictment was based on a section of the statute then in force (Wag. Stat. 487, sec. 16) whose language is identical with that of the present statute under which the prosecution was begun in this case. It has been held that the indictment should show such acts as would amount to the imputed crime independent of the word willful; and to make this out it should charge the act to have been done knowingly and corruptly, and the act should be alleged to be willful. State v. Piner, 57 Mo. 243. Where the indictment against the justices of the county court was framed under the act of March 20, 1872, which provided that if any member of a county court should knowingly vote for the appropriation, or disposition of any money or property belonging to the county for any purpose not directed by law, such person so voting such illegal appropriation or disposition of such money or property should be deemed and taken to have feloniously embezzled and converted to his use, etc., the court, quoting with approval sections 2520, 2521 of Wharton’s Criminal Law, held that the act must have been done knowingly, and actuated by some dishonest and corrupt motive. As to the charging words of the indictment, description of the offense, the ruling in the two preceding cases was followed. State v. Kite, 81 Mo. 97, was an indictment against the justices of the county court for having unlawfully granted a dramshop license. It was ruled that the indictment should aver that the license was granted'by them as such judges, willfully, knowingly, or for an improper motive. And a similar ruling was made in State v. Newkirk, 49 Mo. 85.

Boyd v. Commonwealth, 77 Va. 52, was where the indictment charged that the defendant, being one of the judges of an election at a voting place, in the execution of his office, then and there with opprobrious language and menaces, did unlawfully, corruptly and willfully prevent Moon and Fitzgerald from qualifying . and acting as judges of the said elections, etc. The law under which it was drawn provided that if any officer on whom any duty is enjoined by law relative to general or special elections should be guilty of any willful neglect of such duty, or of any corrupt conduct in the execution of the same, should be deemed guilty of a misdemeanor. It was held by the court that in an indictment against an officer for corrupt misbehavior in office, it is necessary that the act imputed to him as misbehavior be distinctly and substantially charged to have been done with a corrupt motive. There was nothing in the indictment to show that the defendant (plaintiff in error) acted corruptly, however unlawfully he may have acted.

In all of these cases which are cited and relied on by defendant, the ingredient of corruption as previously herein defined is one of the essentials of the offense. This ingredient is not found in the present case. The defendant was not influenced by corrupt motives in the commission of the acts of oppression and misbehavior for which he was prosecuted and convicted. We must think that the instructions of the defendant as given in their modified form were proper, and as asked, containing the word “corrupt” were improper.

The court, on its own motion, refused the defendant’s instruction defining malice, but gave one of its own motion embodying the same definition. The court, by its instructions, fully defined the meaning of the terms, “malice” and willful.” These definitions are in accord with that announced by the supreme court of this state in numerous cases, which need not be cited here.

The defendant further objects that the court further erred in refusing his tenth instruction, which declared that the punishment for the offense charged was disqualification from holding office under the constitution and laws of this state, and from voting at any election. This was properly refused. While it correctly stated the legal effect of a conviction of the offense charged, it was not a matter for the jury, but for the court. The function of the jury was to pass on the guilt or innocence of the defendant under the information and the evidence, and, if guilty, to assess his punishment as provided in section 3737. It was the duty of the court, in its judgment, to declare the statutory effect of such a conviction.

The defendant further objects that the court erred in refusing his eleventh instruction, which informed the jury that the policeman was not obliged to obey an order of the mayor to imprison the parties if he knew they were guilty of no offense. This instruction tendered an immaterial issue. It made no difference that the officer making the arrest knew that the parties were not guilty of any offense so far as the defendant was concerned, since he instigated and commanded the arrest to be made. The knowledge or wrong of the police officer was no shield to defendant under the circumstances. Whether this officer knowingly permitted himself to become an instrument in the hands of defendant to wreak his malice on the arrested parties was immaterial and unimportant. The instruction was rightfully refused.

The affidavit upon which the information is based is, we think, properly verified, and upon its face shows that it is on the knowledge of the affiant, and, therefore, sufficiently complies with the statutory requirement. R. S., secs. 4057, 4059.

The defendant further complains that the information charges four distinct statutory offenses in one count punishable under different statutes, and that, therefore, it is bad for duplicity. We do not think this complaint is well grounded. The information clearly charges but one offense, to wit, willful and malicious oppression in office. >

The several specific acts relied on as constituting the offense are alleged in the information with sufficient particularity to meet the requirements of the rule of criminal pleading, which is to the effect that if the statute creating the offense, as is the ease here, does not specifically define or describe it, then the information or indictment must set out in full all acts of defendant constituting the offense. State v. Fare, 39 Mo. App. 112; State v. Davis, 70 Mo. 467; State v. Ferguson, 29 Mo. 416; State v. Rockford, 52 Mo. 199; State v. Gardner, 28 Mo. 90; State v. Prior, 37, Pac. Rep. (Kan.) 169, (see Cent. Law Jour., vol. 39, No. 15, Oct. 12, 1894; Commonwealth v. Mentzer 29, Atl. Rep. (Penn.) 720, (see Cent. Law Jour., vol. —, No. — and date).

The defendant further complains that the information is bad for the further reason that it does not charge that the several acts of the defendant were knowingly, wilfully and corruptly done, and from an improper motive. Prom what has been already stated in a preceding paragraph, it must follow that this complaint is not well founded. We think that if the information charges the offense in the language of the statute with proper specifications of the acts constituting the same, more is not required in a case of this kind.

The defendant’s final complaint is that the trial court erred in rendering judgment that defendant forfeit his office. We can not sustain this complaint. The court instructed the jury that if they found the defendant guilty they should assess his punishment at a fine not exceeding $500, or by imprisonment in the county jail not exceeding one year, or by both such fine and.imprisonment. This was in conformity with the provisions of section 3737, Revised Statutes. The jury by their verdict assessed the defendant’s punishment at a fine of $50. The judgment and sentence of the court was that inasmuch as the defendant “has been found guilty by the verdict of the jury of the crime of willful find malicious oppression in office, as charged in the information in this cause, and his fine fixed by said jury in their verdict at the sum of $50 * * it is adjudged by the court that the defendant pay a fine of $50 and also the costs of the prosecution, and and that he stand committed until said fine and costs be paid, or he be otherwise discharged in the due course of law. And that for the offense charged in the information in this cause whereof he is convicted, he forfeit his office of mayor of the city of Moberly,” etc. Section 3734, Revised Statutes, provides that every officer who shall be convicted of any official misdemeanor or misconduct in office, or of any offense which is by this or any other statute punishable by disqualification to hold office, shall, in addition to the other punishment prescribed for such offenses, forfeit his office. The defendant was convicted of an offense mentioned in section 3732, as has already been stated. And in section 3734 it is provided that every person who shall be convicted of any of the offenses mentioned in any of the preceding sections, which, of course, includes section 3732, shall forever be disqualified from holding any office of honor, trust or profit under the constitution and laws of this state. The offense for which defendant was convicted, being punishable by disqualification to hold office, therefore the judgment of forfeiture was proper.

Sections 7127, 7128 and 7129, Revised Statutes, provide for the removal of persons from office for .the causes therein mentioned, upon complaint of the prosecuting officer. The procedure for the trial and removal of an officer under these sections is analogous to that of common law by quo warranto. It is a different proceeding from that provided when an officer has been guilty of willfull and malicious oppression in office as defined in the section of the statute which we have already referred to. One is a criminal proceeding where the effect of' the conviction is to disqualify him from holding ’office and to forfeit that which he occupies at the time of the commission of the crime; the other is a civil proceeding and nothing more. It has no relation to or connection with the criminal proceeding; nor is it necessary to rosort to a proceeding under the former to ‘ give effect to the conviction under the latter. The two statutes and the proceedings authorized by them are entirely independent of each other.

The defendant seems to us, from a pretty thorough exploration of the record, to have been fairly tried and rightly convicted; and so we must affirm the judgment of the circuit court.

All concur.