277 Mo. 229 | Mo. | 1919
Appellant was charged by information in the circuit court of Moniteau County with perjury, committed while testifying as a witness in said court. Upon a trial, he was convicted and sentenced to
At a trial, in said court, in January, 1918, of one Schenewerk for the unlawful sale of intoxicating liquors, the appellant is charged with having, in the language of the information, testified: “That he, the said Arthur Hardiman, did not see the said Frank Schenewerk put a bottle in the buggy of the said Arthur Hardiman, at California, Missouri, on or about the 24th day of May, 1917, and that he, the said Arthur Hardiman, said that this was the first time he had ever seen the said Frank Schenewerk and that he, said Arthur Hardiman, had not seen the said Frank Schenewerk since said 24th day of June, 1917, until the day of said trial, January 15, 1913, and that he, the said Arthur Hardiman, had not talked to anyone about the case or issue being tried on the said 15th day of January, 1918, or the matter in issue to be tried, and that he, the said Arthur Hardiman did not give or hand any money on the said 24th day of May, 1917, to said Frank Sehene-werk, and that said Frank Schenewerk did not receive any money from him, the said Arthur Hardiman, at said time and place, and that statement so made by him, the said Arthur Hardiman, was made in reference to the time he, the said Arthur Hardiman, saw and talked with said Frank Schenewerk while he, the said Arthur Hardiman, was in his buggy near Gattermeier, mill in California, Missouri; whereas, in truth and fact, the said Arthur Hardiman, saw the said Frank Schenewerk put a bottle in the buggy of the said Arthur Hardiman, was in his buggy near Gattermeier’s 1917, near Gattermeier’s mill in California, Missouri, at the time mentioned, and said Arthur Hardiman did give and hand to said Frank Schenewerk money on said occasion, about the 24th day of May, 1917, at California, Moniteau County, Missouri, near said Gatter-meier ’s mill.”
The evidence against the appellant is that of one Allen, City Marshal of California, Mo. It is as follows:
The testimony of the appellant was as follows: “I am the defendant in this case; I was present in the court last January and testified in the hearing of the case of State v. Schenewerk, for and on behalf of the State; I testified that I did not know Frank Schenewerk by name until the day of the trial;. I saw him once before the day of the trial, sometime in May. He came up to me at the hitch rack right across from Dr. Burke’s. I testified in that case that he did not put anything in my buggy, and that testimony was true.
A statement of the general rule applicable to cases of this character is not inappropriate in this connection. Under Section 4344, Eevised Statutes 1909, upon which this prosecution is based, false testimony as to immaterial matter is not perjury. Where, however, the testimony alleged to he false is material to any proper matter of inquiry in the case, and is uttered by the witness with knowledge of its falsity, it is perjury, although it may not tend directly to prove the issue. [State v. Moran, 216 Mo. 550; State v. Ackerman, 214 Mo. l. c. 332.] Of this character is the testimony alleged to have been falsely given by the appellant.
The materiality of the alleged false testimony being determined, we are confronted with the question as to the quantum of evidence necessary to a conviction. It is fundamental that to sustain a charge of perjury, it is necessary that there should be some substantial evidence, in addition to the testimony of a single witness. This for the very apparent reason that if the defendant swears to one thing and the witness to the opposite, there is simply one oath against the other, and the jury would, in consequence, not be warranted in saying that the testimony of the one is false rather than that of the other, without some other proof tending to show which is true and which is false. [State v. Thornton, 245 Mo. 436; State v. Faulkner, 175 Mo. 546.] It does not necessarily follow, however, that the corroborative testimony must be that of another witness. It may consist of circumstances sufficiently strong to be tantamount to that of anothej witness’s testimony. [State v. Heed, 57 Mo. 252; State v. Hunter, 181 Mo. 316; State v. Blize, 111 Mo. 464.] As further illumi-native of what constitutes corroborative evidence in a case of this character, we have recently held, in State v. Rohten, 259 Mo. 424, in harmony with the well es
Instruction numbered 5, given by the court, does not conform to the allegations of the information. The latter limits the alleged false testimony to a denial of the fact that Schenewerk placed a bottle in appellant’s buggy, and that the latter handed him anything; the instruction, in addition, tells the jury that they may find the defendant guilty if they believe from the evidence that he testified that he did not at the time buy any whiskey from Schenewerk. The instruction was erroneous in being broader than the charge. [State v. Smith, 119 Mo. l. c. 447.]
For the errors noted, the judgment of the trial court is reversed and the cause remanded.