66 Mo. 560 | Mo. | 1877
— The indictment charged “that at and before the circuit court of New Madrid county, in the State of Missouri, held at the court house in the town of New Madrid, within and for said county, on the 16th day of March, A. D. 1874, there was then pending in said court an action wherein Humphrey C. Stanley was plaintiff, and Moses Shanks, Benjamin E. Boyce, John T. Scott and Amos R. Phillips, were defendants, and which said action
¥e are of opinion that the court below properly held the indictment insufficient, and for these reasons: Our statute (2 W. S. 1046, § 45) provides, “ When any petition * * * shall be founded upon any instrument in writing, charged to have been executed by the other party, * * * * the execution of such instrument shall be adjudged confessed, unless the party charged to have executed the same deny the execution thereof by answer, * * * • verified by affidavit.” It will thus be readily seen that an affidavit does not raise an issue, and only possesses pertinency and materiality, when serving to verify the allegations of an answer, which raises an issue by denying the execution of the instrument declared on. If no answer had been filed making an issue of the sort just mentioned, an affidavit or testimony in denial of the note’s execution, would have been alike impertinent and inadmissible; and if. improvidently admitted, could form not the slightest basis for a prosecution like the present. Now, the indictment does not allege that issue was joined between the plaintiff and the defendant touching the execution of the note in suit, thus connecting the affidavit with and using it in verification of the answer, thereby showing the materiality of the matter sworn to. Nor is the defect cured by the general averments that “ Shanks made it a material issue,” &c., and that “ it then and there became material,” &c. How did Shanks make it a material issue ? Pacts should be stated, and not mere legal conclusions. In order to the sufficiency of the indictment charging perjury, the materiality of the affidavit or testimony, must be apparent. (State v. Keel, 54 Mo. 182.) This is not the case here, and we affirm the judgment.
Amtbmed.