14 Mo. 502 | Mo. | 1851
delivered the opinion of the court.
The appellant was indicted in the St. Louis criminal court at the January term, 1850, for the crime of perjury.
Michael Schaller, the appellant in this court, was a justice of the peace, within and for the county and city of St. Louis; one T. S. N., brought suit before said Schaller as a justice of the peace against one Nicholas Patton on an open account for $90. The account filed was
At the January term, 1850, of the St. Louis criminal court, the grand jury were engaged in the examination and investigation of a charge of perjury against said T. S. N., alleged to have been committed by him, on the trial of the said suit before Schaller, in which he was plaintiff, and Patton defendant on the account filed as above.
Before the grand jury, while engaged in the investigation of the said charge of perjury against said N., the appellant was introduced and duly sworn as a witness on said enquiry, and it was material to the en-quiry to find out whether said N. had been sworn and examined as a witness before said justice Schaller on the trial of the suit before him ofsaid N. vs. said Patton. Upon the examination ofsaid Schaller, therefore, as a witness by the grand jury, he was asked whether he, as a justice of the peace on the trial of the suit before him of N. against Patton did swear the said N. to testify in said cause in the absence of said Patton, and whether said N., did not testify on said trial, that said account was correct, and due to him by said Patton; and whether he did not testify that said account, item by item was correct and due by said Patton to him, N.; and whether he, said Schaller as justice of the peace, as aforesaid, did not render the judgment in favor of N. against Patton alone on the testimony given before him on the trial in the absence of said Patton, by said N.; and that there was no other evidence adduced.
And the said Schaller did swear and testify before said grand jury on the enquiry against said N. before them for the crime of perjury aforesaid, that he as a justice of the peace, holding his court on the trial of the cause before him of N. vs. Patton on the open account filed by N., did swear said N. to testify as a witness in said cause, and that said N., as such witness in the absence of said Patton, did testify that said account was correct and due to him by said Patton; and that said account, item by item was correct, and due to him, and that there was no other evidence given before him on said trial of the suit in favor of N. against Patton, and that he rendered judgment in favor of said N. on the evidence of N. alone.
The perjury consists in this statement of the witness Schaller, for the indictment avers and the testimony shows the fact to be that said N. was not sworn nor examined as a witness on the trial of the cause before said Schaller.
Afterwards the appellant appeared again before the grand jury, that is after his first examination before that body and after his written statements, contradicting his oath before them, had been produced to them, and stated to said grand jury (but it does not appear whether he was re-sworn or not at the time) that, he had not sworn N. or any other witness in said cause, and that he rendered judgment upon documentary evidence alone. It was testified by one Mathias, that no witness was sworn on the trial before the said Sehaller, but that N. handed appellant some papers which he looked at, and appellant then remarked, “You have judgment Mr. N.,” and appellant then handed the papers back to N.
It was proved, that the defendant was a German, a man of good education, understood the English language and had been in the habit of drinking intemperately. The facts of the trial, testifying official character and all the material facts were proved as alleged in the indictment. It was also proved that when before the grand jury, the appellant was cool and collected and not under the influence of liquor. The jury found the defendant guilty and assessed his punishment to two years imprisonment in the penitentiary. He moved for a new trial_ motion was overruled — the defendant excepted and brings the case here by appeal.
As the defendant’s counsel relies principally, on the account filed by N. against Patton for a reversal of this case, because he contends that, that account excuses the jurisdiction of a justice of the peace, arid that N. could not, therefore, if he had been sworn, be guilty of any offence, for the whole proceedings were “coram non judice.” I will here copy the account as it appears in the bill of exceptions:
“Nicholas Patton To T. S. N., Hr.
“To cash paid Patton on the 4th day of December, 1845, $30, of which he allowed but the sum of $6 00 as a credit, leaving a balance due..... $25 00
Interest on same to 24th day of September’, 1849. 5 62|
To professional services in search of hire in 1846. 5 00
To hire of cart and horse and man three days at $2 . 6 00
*507 To balance of and from $10, due after paying for hardware. 1 SO
To 12,000 brick, sold and delivered at $4 per 1000 in 1845-6, 48 00
$90 77 -i^-
Voluntary credit... 77
Due.....$90 004
The counsel contends that the voluntary credit is no release and consequently, that the account exceeds the jurisdiction of a justice of the peace, and that all the acts of said justice are void for want of jurisdiction. That N. could not have been guilty of perjury if he had been examined before the justice on the trial of this account and consequently Schaller could not be guilty in testifying before the grand jury in regard to N.’s testimony in this cause before the justice.
To this I have one plain, and to my mind, conclusive answer. In casting up the account, I find it amounts to $91 12 1-2. The voluntary credit of the seventy-seven cents, therefore, does not reduce it to $90, and if there be no other answer to the counsel’s argument, than such reduction it must prevail.
Let us examine this subject, and 1st, justices courts, sec. 2, Digest of 1845, page 634: “Every justice of the peace shall have jurisdiction over the following actions and proceedings: First. Actions of debt covenant and assumpsit, all other actions founded upon contract, when the debt or balance due, or damages claimed, exclusive of interest, shall not exceed ninety dollars,” &c.
In viewing the above account in regard to jurisdiction of the justice of the peace, we must not include in the amount the second item, that is for interest on the first item, amounts to the sum of five dollars sixty-two and a half cents — deduct this sum from the account and it leaves the sum of $85 50, fully within the jurisdiction. The ninety dollars exclusive of interest must be regarded as forming the criterion in regard to jurisdiction, and the first item in the above account is justly entitled to interest, without stating the amount of that interest; so then the interest item deducted, leaves the account fully within the jurisdiction. This view of the subject completely overturns the argument, and the principal argument relied on for reversing the judgment below.
The naked question of interest, of wilful and corrupt false swearing, was left, under proper instructions, to the jury. The court instructed the jury as to what were material questions, brought the subject of rational doubt to their minds. The jury found the defendant guilty.
It is true there is nothing on the record in this case pointing out any
I have carefully examined the instructions given and refused. The first instruction refused for the defendant, was, in my opinion., properly refused.
This instruction embraces the proposition that the “want of motive or interest in Schaller to swear false isa circumstance from which the jury are at liberty to infer that the testimony of the defendant was not wil-fully and corruptly false.”
It may be very possible for motives to exist, prompting acts, when there is no evidence of their existence, before the jury. The secret promptings of the mind, the secret motives which give birth to acts and deeds are not always susceptible of human proof.
The last instruction declares that in all doubtful cases of guilt, general good character is to be regarded as a strong circumstance in favor of the accused. This instruction is technically wrong and the bare refusal to give it in this language is no error — I should have been better satisfied if the court had given this instruction amended by striking out the word “strong.”
The substance of the other instructions were already embraced in those given on the part of the State — nothing wrong, therefore, in the court’s refusal to give them again.
Upon the whole record I find nothing requiring the interference of this court with the judgment below. The same is, therefore, affirmed.
