The St. Louis Republic. [volume] (St. Louis, Mo.) 1888-1919, 1903-05-21
Supreme Court in Faulkner-Lek.
mann Cases Supported Nearly
All of States Contentious.
REVIEW BY ST. LOUIS LAWYER.
Ground for Reversal Has Effect
on Only Two Other Cases,
Those of Denny and
Bersch.

Discussion OF the opinion of the Supreme
Court in :he Lehman and Faulkner cases
yesterday was general The reversal on ,he
ground Of a too broad instruction by the
trial court has an effect in only two other
cases. those of Charles ]. Denny and Ed
mund Bersch. both of whom have been in
dcted for perjury under the same inStruc-
ton.
Both Denny and Bersch have been con-
victed OF bribery and their appeals are now
:-=d.ag before the Supreme Court. so that
Y they escape from the perjury charge they
must take chances on the bribery cases.
Entirely different instructions were given
by the trial court in the cases against
Charles Kelly and Louis Decker. The opin-
ion which was handed down yesterday will
not affect these two appeals.
A local attorney. who had studied a copy
OF the Supreme Courts opinion, yesterday
commented upon 1t as follows:
OPINION OF ATTORNEY.
The decision in the Lehman and FauIk-
nef cases sustains the State on every ques-
ton that was raised by the appellants 5
counsel In the Supreme Court. and holds
that the special jury was properly and
legally summoned and selected; that as
to the evidence OF Paul Reiss. it was not a
privileged communication. there being no
privilege in a communication between an
attorney and client intended to further a
crime: that the fact that the Grand Jury
having voted indictments against Murrell
and Kratz at the time Lehman and Faux
ner testified. did not render the testim ony
OF Faulkner and Lehman immaterial: that
witness may be summoned before the
Grand Jury. even though that witness Is
suspected Of being implicated in the crime
ana may be questioned touching his con-
nection and knowledge OF the crime. and If
ho tegtihes falsely he commits perjury.
The witness has the privilege of refus-
inG to answer on the ground of self-incrim-
fnaticn. or he may answer truthfully in
which case he cannot be indicted on any
evidence he gives. hut If he testifcs falsely
he commits perjury.
The cases were reversed owing to instruc-
tons Of the Court. The Supreme Court
says the lower court in its first instruction
directed the Jury that II they find from
the evidence
That after being sworn by the foreman of the
0rand Jury and before said Grand Jury he the
said defendant. did then and there falsely swear
and testify under oath that he did not know of
and had never heard Of the existence OF the sum
Of $4,000 deposited in the Lincoln Trust Company
and II you further find from the evidence that
In truth and in fact the defendant did. at the
time he SO testified under oath. we'll know.
aside from any Information he may have ac-
Quirod through the newspapers. OF the exist
ence Of the said $4,000. and that the said sum
was deposited in a lock box in the safe deposit
vault Of said Lincoln Trust Company. and that
when he 80 swore and testified under oath he
willfully and corruptiy testified falsely. they
would hnd him guilty OF perjury. etc.
The Supreme Court says the objection Is.
drst, that 1t submitted to the Jury whether
defendant committed perjury by swearing
he had never heard of the existence of said
$4,000: whereas the Indictment does not
negative the truth of his evidence that he
=
perjury only that in truth and in fact he
well knew Of the existence OF said sum-
ISSUE NOT SUBMITTED.
TT will be observed. however. in reading
the instruction given by the trial court that
no such issue was submitted: 20 the jury.
The trial court expressly required the jury
to find that the defendant at the time he
testified before the Grand Jury well knew,
aside from any Information he may have
obtained through the newspapers. of the ex-
istence of the said $4,000.
THE Supreme Court in holding this in
struction Of the lower court erroneous not
only INDUCED in puEzling theories. but re-
versed itself as TO the law set out in the
first part OF the decision on page II. There
the Supreme Court lays down the law in
the exact language which the trial court
used, and which the Supreme Court says
in the first part of the opinion is the law.
and the latter part Is not the law.
''On page II. after reviewing all the au-
thorities on the subject of Grand Jury
perjury. the Supreme Court solemnly de-
clares this to be the law.
In the light Of all these rulings it cannot be
doubtsdFthat II defendant in fact did falsely
testify before the Grand Jury as charged in the
Indictment that he did not know nor had he
ever heard Of the existence OF the $4,000 deposited
IN the lincoln Trust Company to bribe certain
members Of the House of Delegates. when In
truth and in fact he did know Of the said money
and the purpose for which 1t was 10 be used he
was guilty Of perjury.
This is exactly what the trial court told
the jury, and precisely what the Supreme
Court reverses the case on, as erroneous.
The question now arises. if the decision OF
the Supreme Court is the law, which part
e, the first part or the last? The first and
the latter part OF the decision are In direct
conflict and expressly contradict each oth-
sr."