203 Mo. 628 | Mo. | 1907
-The defendant in this cause appeals from a judgment of the circuit court of the city of St. Louis convicting him of perjury. On the 2d day of December, 1905, the grand jury of the city of St. Louis returned an indictment against the defendant charging him with perjury. The perjury is charged to have been committed by the defendant in testimony given by him in a certain proceeding in the second district police court, in which court Jefferson Pollard was the judge, wherein the city of St. Louis was the plaintiff and William Altherr was the defendant. The issues upon which the defendant was called upon to testify in that case are presented in the following complaint:
“State of Missouri, City of St. Louis, ss.
“City of St. Louis, Oct. 28, A. D. 1905. William Altherr, To the City of St. Louis, Dr.
“To fifty dollars for the violation of an ordinance of said city entitled ‘An Ordinance in Revision of the General Ordinances of the City of St. Louis,’ being Ordinance No. 19991, chapter 18, article 2, section 1460, approved April 3, 1900, In this, to-wit: In the city of St. Louis and State of Missouri on the 28th day of Oc*631 tober, 1905, the said William Altherr did then and there disturb the peace by noisy, riotous and disorderly conduct, to-wit, on a public street, on Jefferson avenue between University and Dodier streets. Contrary to the ordinance in such cases made and provided.”
The indictment, after alleging the creation of the police court and the authority of such court to try the complaint as above indicated and the authority of the clerk to administer oaths, charges that the proceeding against William Altherr was instituted .by the plaintiff-city of St. Louis against the said defendant William Altherr, for violating an ordinace of the said city of St. Louis, entitled “An Ordinance in Revision of the General Ordinances of the city of St. Louis,” being Ordinance No. 19991, chapter 18, article 2, section 1460, in this, to-wit: ‘ ‘In the said city of St. Louis and State of Missouri, on the 28th day of October, 1905, the said William Altherr did then and there disturb the peace by noisy and disorderly conduct on'a public street,, to-wit, on Jefferson avenue, between University street and Dodier street.” It was further alleged that then and there upon the trial of the said cause it became and was a material issue whether the said William Altherr on the said 28th day of October, one thousand nine hundred and five, at the said city of St. Louis, violated an ordinance of the city of St. Louis, entitled “An Ordinance in Revision of the General Ordinances of the city of St. Louis,” being No. 19991, chapter 18, article 2, section 1460, in this, to-wit, of disturbing the peace by noisy, riotous and disorderly conduct on a public street, to-wit, on Jefferson avenue, between University street and Dodier street in said city of St. Louis, and whether the said William Altherr, on said twenty-eighth day -of October, one thousand nine hundred and five, at the said city of St. Louis, and on an open lot and near and adjoining a public highway, to-wit, Jefferson avenue, in a loud, boisterous and angry manner and tone of
The defendant was put upon his trial upon these allegations and the testimony on the part of the State tended to prove that the defendant and one Coleman were police officers in the city of St: Louis on the 28th day of October, 1905, and that on the night of said day one William Altherr was conducting a dog and pony show under a tent on a vacant lot situate some forty feet from Jefferson avenue, and that defendant upon the trial of Altherr before the police judge testified to
The defendant introduced a number of witnesses who testified to his good reputation as a truthful man prior to this charge. He testified in his own behalf and substantially admitted the statements made by him on the witness stand at the trial of the Altherr case, but denied that he was sworn at said trial.
At the close of the testimony the court instructed the jury substantially upon the charge as contained in the indictment, embracing in its instructions to the jury the quantum of proof necessary to establish the offense or perjury, as well as the subjects of credibility of witnesses, the presumption of innocence- of the defendant and reasonable -doubt. We see no necessity of reproducing the instructions given, but will make such references to them as may be required during- the course of the opinion. The cause being submitted to the jury upon the evidence and instructions, they returned a verdict finding the defendant guilty as charged in the indictment and assessed his punishment at imprisonment in the penitentiary for a term of two years. Timely motions for new trial and in arrest of judgment were duly filed and by the court overruled. Sentence and judgment was entered of record in conformity to the verdict and from this judgment the defendant prosecuted this appeal, and the record is now before us for review.
The record in this canse discloses two legal propositions for onr consideration.
I.
The sufficiency of the indictment is challenged on the ground that the ordinances creating the police court and authorizing the appointment of the clerk and his authority to administer oaths were not properly pleaded in the indictment. In other words, we take it from the brief of counsel that it is insisted that the provisions of the ordinances should be set forth in the pleading in haec verba. To this contention we cannot give our assent. The ordinances áre referred to by their number and their general tenor is recited. -This we think was sufficient and is supported by authority. [Apitz v. Railroad, 17 Mo. App. l. c. 425; Moberly v. Hogan, 131 Mo. l. c. 25; Hernán v. Payne, 27 Mo. App. l. c. 482.]
II.
The most serious proposition confronting us as disclosed by the record is the one urged by learned counsel for appellant, that the testimony as given by the defendant in the police court upon the complaint against Altherr and upon which the charge of perjury is predicated, was immaterial upon the issues presented upon the trial in which the defendant testified and therefore cannot be made the subject of perjury.
It is fundamental that in order to constitute the crime of perjury the testimony given, which is charged to be false, must be material to the issue presented at the trial. This proposition is fully recognized in State v. Blize, 111 Mo. 464, and in numerous cases-in other jurisdictions. [Nelson v. State, 32 Ark. 192; State v. Aikens, 32 Iowa 403; Com. v. Pollard, 12 Metc. (Mass.) 225; Wood v. People, 59 N. Y. 117; Stanley v. United
The indictment in the case at bar proceeds upon the the.ory that the complaint against Altherr in the-police court presented a material issue and that the testimony given by the defendant was material to the issue therein presented. . In the cases of State v. Aikens, 32 Iowa 403, and Nelson v. State, 32 Ark. l. c. 197, it was expressly ruled that the materiality of the testimony on which perjury is assigned must be established by evidence and cannot be left to presumption or inference. In other words, we take it that the law is well settled that, where there is no dispute as to what the party charged with perjury testified to upon a certain issue presented in some court of competent jurisdiction, then it is purely a question of law for the court to determine whether such testimony as given was material to •the issue thus presented. We have in this case the'complaint against Altherr in the police court clearly setting forth in what respect section 1460 of Ordinance No. 19991, chapter 18, article 2, was violated. This complaint clearly presented the issue to be determined upon the .investigation of that complaint; therefore, the remaining crucial question is as to whether or not the testimony given by defendant upon that issue was material to it and can be made the subject of perjury under the well-settled rules of law.
At the very inception of the discussion of this proposition it is well to fix in our minds the issue upon which the defendant was called to testify. The complaint charged Altherr in the police court with a violation of section 1460' of Ordinance No-. 19991, in this, to-wit: “In the said city of St. Louis and State of Missouri on the 28th day of October, 1905, the said William Altherr did then and there disturb the peace by noisy, riotous and disorderly conduct on a public street, to-wit, on Jefferson avenue, between University
It will be observed that section 1460' provides that the noisy, riotous or disorderly conduct, in order to constitute the misdemeanor denounced by the ordinance, must be committed in a park or in the street, alley, highway or thoroughfare, and we take it that, under the provisions of that ordinance and as applicable to the complaint made against Altherr, the material issue presented was as to whether or not the defendant Altherr was guilty of noisy, riotous or disorderly conduct in the street known as Jefferson avenue. Having thus made apparent the issue upon which the defendant was called to testify, the remaining' crucial question confronts us as to whether the testimony given by the defendant upon that issue was material to the issue there presented. If such testimony was material upon that issue and he corruptly, wilfully and knowingly swore falsely upon that issue, then he was guilty of perjury. If the testimony given was ■ immaterial, then under the well-settled rules as applicable to this offense, he cannot be convicted of the crime of perjury, even though he swore falsely as to an immaterial matter. It is practically conceded by the State that the
It is insisted by the learned Attorney-General that, even though the defendant did testify that such language was used on a vacant lot and inside of a tent, and even though other witnesses testified to the same, yet the fact of the use of such language by William Altherr on said occasion was a material fact, and it is insisted that the city might have proved by other witnesses, and for aught that appears did prove by other witnesses, that William Altherr used said language on said public-street. The fundamental error of this insistence consists of an effort to separate the disorderly conduct and the place where it occurred. The
Our conclusion upon this proposition is that the testimony given by the defendant in the trial before the police court upon the issue there presented was immaterial..
It will further be observed that the indictment in this cause as well as the instructions of the court undertakes to broaden the issue as presented in the complaint in the police court against Altherr. It will be observed that the indictment charged very properly, first, that it was a material issue as to whether the said William Altherr on the said 28th day of October, 1905, was guilty of disturbing the peace by noisy, riotous and disorderly conduct in the public street known as Jef
We have thus indicated our views upon the legal propositions disclosed by the record, which results in the conclusion that upon the facts as developed at the trial of this case the defendant cannot be convicted of the crime of perjury, and the judgment of the trial court should be reversed and the defendant discharged.