35 Mo. 148 | Mo. | 1864
delivered the opinion of the court.
This is a suit upon a policy of insurance of a stock of goods in a store in St. Louis. The policy required the assured on sustaining loss or damage by fire, forthwith to give notice thereof to the Company, and as soon after as possible to deliver in a particular account of his loss or damage, signed with his own hand, and verified by his oath or affirmation. The policy also provided, that if there appear any fraud or false swearing, the insured shall forfeit all claim
At the instance of the defendants, the court gave the following instruction:
“ If the jury believe from the evidence, that the plaintiff made and subscribed the affidavit dated April 10,1860, read in evidence, and delivered the same to the defendant as containing a statement of his actual loss and damage by the fire in questionand if they further believe from the evidence, that his said loss and damagS was materially less than would appear by said statement, and that plaintiff knew this fact when he made and subscribed said affidavit, then the plaintiff cannot recover.”
And the court refused the following instruction :
“ If the jury believe from the evidence, that the plaintiff made the affidavit of 19th April, 1860, and that at the time he made it he did not know the amount of stock on the first floor and cellar of the store therein mentioned; if at said time plaintiff knew that he did not know such amount, then he has been guilty of false swearing, within the intent and meaning of the policy, and in that case plaintiff cannot recover.”
There was verdict and judgment for the plaintiff, and the defendant appealed.
The only error complained of is the refusal to give the instruction above copied. The affidavit referred to stated that the value of his stock of groceries, produce and merchandise, contained in first floor and cellar of store No. 89 South Main street, in the city of St. Louis, and which were on hand the day previous, and at the time of the fire, was seven thousand one hundred and eighty dollars and twenty-two cents.
No doubt an indictment for perjury might be supported by proof of a swearing to the truth of matters of which- the accused was ignorant (and which might in fact be true), but the prosecution for perjury is distinctly for the offence
There was no error in refusing the instruction.
Judgment affirmed;