124 Mo. 640 | Mo. | 1894
The defendant was convicted at the September term, 1893, of the circuit court of Mercer county on an indictment charging him with the crime of perjury and his punishment assessed at two years’ imprisonment in the penitentiary. From the judgment- and sentence he appeals.
The indictment, leaving out the formal parts, is as follows: ' “The grand jurors for the state of Missouri for the body of Mercer county, being duly impaneled, sworn and charged upon their oaths, present that heretofore, to wit: on the sixteenth day of November, 1891, at the county of Mercer and state of Missouri, before P. C. Hampton, a duly qualified and acting justice of the peace of said county, a certain action wherein the state of Missouri was plaintiff and James J. Higgins was defendant, on an information of the prosecuting attorney for assault on Daniel W. Ragan, came on to be tried in due form of law, the said justice then and there having competent authority in that behalf; and the
“And so the jurors aforesaid upon their oaths aforesaid, do say that the said James J. Higgins on the said sixteenth day of November, 1891, at the county aforesaid, before the court and justice aforesaid, upon the trial aforesaid, did in manner and form aforesaid feloniously, willfully, corruptly and falsely commit willful and corrupt perjury against the peace and dignity of the state.”
The evidence shows that the D. "W. Ragan mentioned in the indictment was assessor of Marion township in Mercer county; that on October 28, 1891, he went to the house where defendant resided for the purpose of assessing his property when he, defendant, assaulted him with a hatchet and ordered him to leave the premises. Ragan then had him arrested for assault before P. C. Hampton, a justice of the peace, and upon the trial before said justice defendant testified that he had not assaulted Ragan; that Ragan had not been to his house or on his premises at the time charged and that if he had he had not seen him.
On the trial the wife of the defendant, Mrs. Higgins, was sworn as a witness in his behalf and upon her cross-examination testified as follows:
l‘Q. Mrs. Higgins, do you know Mr. Bixler and Mrs. Bixler? A. Yes, sir.
UQ. I’ll ask you if you remember of them being at your house some time after this—short time after
“Q. There wasn’t any? A. No, sir.
UQ. Now I’ll ask you if it is not true, Mrs. Higgins, that Mr. and Mrs. Bixler were at your house some time in December and you were all talking about the matter, and the oldest boy, your boy Bethel, said this: ‘Tuck looked so funny when pa drew the hatchet on him,’ and if you didn’t say ‘Jim didn’t draw the hatchet; he just had it in his hand and told Mr.—told Tuck to get? A. Why, the children were at school.
UQ. No, I asked you if such conversation didn’t happen at that time at your house? A. No, sir.
“Q. You say they were at school at that time? A. Yes, sir; all fall.
“Q. All fall? A. Yes, sir, and winter.
“Q. Were they at school at the time of the conversation between you and Mr. and Mrs. Bixler about it? A. There wasn’t any conversation.
“Q. There was no conversation? A. No, sir.”
The state subsequently called Mrs. Bixler as a witness who testified, over defendant’s objections, as follows:
“Q. Mrs. Bixler, have you been sworn? A. Yes, sir.
“Q. Are you acquainted with Mr. Higgins? A. Yes, sir.
“Q. Are you acquainted with their oldest boy, Bethel? A. Yes, sir.
“Q. Tell the jury whether or not you and your husband were at Mr. Higgins’ house in December, 1891, and this conversation occurred that Bethel said, speaking of Ragan—he called him ‘Tuck’—‘Tuck looked so funny when pa drew the hatchet on him,’ and that Mrs. Higgins then said, ‘Jim didn’t draw the
On cross-examination she testified:
“Q. Now tell the jury, Mrs. Bixler, just what language was used there? A. Well, Bethel made the remark. I don’t remember how the conversation first started in regard to this case—of course it was kind of a general subject, the trouble was—and Bethel made the remark that ‘Tuck looked so funny when pa drew the hatchet,’ and his ma cheeked him and she says, ‘Jim didn’t draw the hatchet, he merely had it in his hand; had been fixing fence and he just simply shook it at Tuck and told him to get out of the yard.’
The objection urged against the introduction of this testimony at the time was, because the statement purported to have been made in part by a person who was not present at the trial, and that no such statements, even if made, could bind the defendant.
The purpose of the evidence was to contradict the witness, Mrs. Higgins, and although the conversation was participated in by her son Bethel, she corrected him in a remark that he made tending to show that Ragan was at the house of defendant at the time stated by him, for the purpose of assessing the defendant’s property. It was not for the purpose of contradicting Bethel that it was offered, and was competent for the purpose for which it was offered notwithstanding he had not testified as a witness. The proper foundation had been laid for the contradiction of the witness Mrs. Higgins by calling her attention to the time and place at which the conversation should have occurred and she had denied that it ever took place, and it was not incompetent merely because of the fact that one of the
The same may be . said with respect of the testimony of the witness, Mr. Bixler, who was interrogated in regard to the same conversation in the same way and testified in almost the exact language that his wife did.
The next contention is that the testimony of one Hampton, the justice of the peace before whom the perjury is alleged to have been committed, was improperly admitted. There was no objection made to the testimony of this witness at the time he was testifying, but ' it is argued that the court should have excluded it of its own motion, and State v. O’Connor, 65 Mo. 374, is relied upon as sustaining this contention. That case has long since been overruled. State v. Hope, 100 Mo. 347; State v. McCollum, 119 Mo. 469. It is just as necessary to make objections to the introduction of incompetent and illegal testimony and to save exceptions to the ruling of the court with respect thereto in criminal as in civil cases, and unless that course is pursued there will be nothing before this court for it to pass upon with respect thereto. State v. Day, 100 Mo. 242, and authorities cited.
It is next contended that there was no testimony tending to show that the false swearing was in a proceeding over which the justice of the peace before whom the same was pending had jurisdiction, and that this fact could only be shown by the original information filed with the justice. The record shows that at the time it was admitted by counsel for defendant the docket of the justice of the peace before whom the case was tried showed that on the sixteenth day of No
The first instruction given on the part of the state is assailed. It is as follows:
“The jury are instructed that if they believe from the evidence beyond a reasonable doubt that the defendant James J. Higgins, at Mercer county, Missouri, within three years next before the thirteenth day of September, 1892, was sworn as a witness by P. C. Hampton, a justice of the peace of Mercer-county,' in a trial before said justice in which the state of Missouri was plaintiff and James J. Higgins was defendant, and that James J. Higgins testified on said trial that if Daniel W. Ragan was at his (Higgins’) house on the twenty-eighth day of October, 1891, he did not know it, or words to that effect or meaning the same thing, then said testimony was material and pertinent to the issue in said cause, and if the jury find that said testimony was false and untrue they will find him guilty and assess his punishment at imprisonment in the penitentiary for a term of not less than two nor more than seven years.”
It will be observed that in the indictment defendant is charged with having willfully, corruptly and falsely sworn in substance that Daniel W. Ragan was
The gravamen of the offense was swearing falsely to a material fact willfully and corruptly, that is, knowingly and intentionally. If, therefore, Daniel W. Ragan was on defendant’s premises, at his dwelling house, or within his dooryard, and defendant knew it and that fact was a material issue upon the trial before the justice of the peace and he testified that he was not, to his knowledge, then he was guilty of willful and corrupt perjury. The same proof would be just as necessary in the one case as in the other, because if he stated that he was not on his premises knowing that he was there he was guilty of perjury, and if he stated that he was not there to his knowledge when he knew that he was there, then the offense'is made out under either view of the case, for at last it all depends upon the presence of Ragan on the premises .of defendant and his willfully and corruptly swearing that he was not there at the time stated. We are unable therefore to perceive any substantial variance in the allegations in
But the instruction did not tell the jury, as it should have done, that before they could find the defendant guilty, they must believe from the evidence that he willfully and corruptly testified falsely, which must be shown in order to constitute the crime of perjury. To swear falsely unintentionally, or by mistake, is not a felony under our statute, but it must be done willfully and corruptly, that is, knowingly and intentionally. Regina v. Muscot, 10 Mod. 192; Rex v. De Beauvoir, 7 Car. & P. 17; Regina v. Moreau, 11 A. & E. (N. S.) 1028; Com. v. Cook, 1 Rob. (Va.) 729; State v. Lea, 3 Ala. 602; Thomas v. State, 71 Ga. 252; People v. Dishler, 38 Hun, 175.
Upon a retrial it would be well to eliminate the words “or words to that effect, or meaning the same thing” from the instruction, as they are misleading in their effect and submit to the jury a question which should be determined by the court. The judgment is reversed and cause remanded.
