*1 390 OF SUPREME COURT v. Tedder.
State appellant complains X. The of certain remarks of prosecuting attorney in the assistant the course his opening argument jury; spin/’ “neither toiled did he and that defendant nor surveyed jobs pulled off.” “he them The before correctly quot attorney prosecuting assistant e(^ “They not, toil neither words, the Master’s torjury.nt they spin.” do These statements were based “Tracy Mr. said when leav the evidence Clark: place ing I over. for have looked drive, ‘We this' place over, it have been to this twice and looked ” get but were detained.’ sooner, we aimed to we here Tracy testimony justified the conclusion that This objections professional burglar. to be seem over The They properly In order fastidious. were overruled. nice, judgment improper argu justify to of a reversal for appear counsel it that the remarks of were ment, must prejudicial something bring probably had to do in “and jury, ing reached such, about the conclusion 149 [State Hibler, v. Mo. think, we was not the case.” Harvey, 411; 214 State v. 484; v. Mo. State Railways Pennington Co., v. 529; Whitsett, Mo. 511, App. 201 Mo. 483.] giving 3, as Instruction Number
For- the error judgment Paragraph opinion, 6 of indicated is reversed and this except All concur remanded. the cause Walker, J., who dissents. Appellant. TEDDER,
THE STATE MILTON Two, June 1922. Division Corroboration: Failure Define Instructions: Invited PERJURY: 1. prosecution perjury in a for Defendant. Where defendant subject instruction, dealing with the an asked and obtained “corroborating circumstances,” identically couched in the same language in an instruction on that contained same sub- complain ject given State, position in no “corroborating circumstances.” failure the terms to define court’s 1922. v. Tedder. Exceptions. Objection -: No As defendant -: -: terms, object request nor did not the court to define said them, assign nor fail- for failure such State’s instruction to define *2 complain ground trial, of such fail- as a for a new he cannot ure appeal. ure on Testimony by Two -: -: -: Positive Witnesses. 3. contradictory rely upon or inconsistent the State did As conviction, upon positive but testi- statements of defendant for directly alleged perjured mony contradicting two of witnesses testimony given the State and of the instructions for “corroborating defining were sufficient without the terms circumstances.” Jeopardy: Different Offenses. -: Former Where defendant
4. charged by prosecuted perjury, for to have been committed was behalf, upon testifying upon his trial a when in own his him larceny, acquitted, acquittal charge of such con- of which prosecution perjury by to him no bar his for committed stituted different, testifying, wholly the offenses were so when therefore, jeopardy was, properly plea overruled. of former --: The Demurrer to Indictment. indictment this case 5. fully requirements Section Revised met Statutes all substance, as to both form and de- and was sufficient properly overruled. fendant’s demurrer thereto only by -: No at Trial. The instruction defend- Errors asked 6. modify given. request He the court the in- ant given, as favorable to him as were and these structions were against him in authorized. No error was committed the law analysis, rejection .Reduced to its final or of evidence. admission presented sharp issue of fact as whether he com- the case larceny case, jury perjury this issue in the mitted was, therefore, against evidence. There substantial found him of the case which he could in the trial error committed no complain. legally Washington Appeal Circuit Court:—Hon. A. H. from Judge. Special
Harrison, Affirmed. appellant. for A. Frazier
R. giving (1) court erred in Instruction 2 The for explain jury quantum attempts it reason 392 OF MISSOURI, SUPREME COURT
State v. Tedder. necessary of evidence to a viz.: The evi- conviction, dence of more than or one credible witness one snch strongly witness corroborated other evidence of facts your circumstances convinces minds of single truth such witness. And, the reason that the words corroborated and corrobora- tion should not be used instruction ex- without planation toas what mean. State 181 Hunter, (2) overruling Mo. 316. The court erred in defend- plea jeopardy.. ant’s of former is When one offense necessary part element and constitutes an essential of another and both offense, were fact but one trans- acquittal action, a conviction or one a bar to a prosecution for the other. State v. 152 Mo. Williams, Hunter, 115 State v. ; Mo. 62; Hall, State v. Mo. App. (a) jeopardy Twice inis violation of *3 and forbidden Article 2 Constitution, and in Rights. violation of Section of Bill 23 State v. 137; 156 Moore, Mo. v. Huffman, State 136 58. Mo. (b) prosecutions perjury In for committed for- a general acquittal mer trial as a rule the of defendant prosecution on a criminal in which he does not testifies, subsequent prosecution against perjury a bar him for committed on the former trial. if But the truth or charges falsity of the former indictment is the gist question investigation under so that a con- perjury necessarily impart viction for will a contra- jury’s guilty diction of the verdict of not in the former subsequent prosecution trial then the will be barred. Encyc. p. Standard Proc. 554; United States v. Butler, Kentucky Cooper, Ky. (c) 38 Fed. 498; v. 909. 106 The ac- quittal of the on accused the trial of an indictment for prosecution an swearing offense is bar to a for false testimony based on his aat former trial. 2 Wharton, Criminal Law, 1599; see. State v. Webster, 206 Mo. (3) overruling 558. The court erred in defendant’s demurrer to the indictment for the reason that said does indictment not state facts sufficient to constitute a crime under the law of this State. State Rhodes, v. 393 1922. v.
State
Tedder.
sustaining
(a)
in not
defend-
(1) Walker, The indictment sufficient. State v. Huckeby, v. 87 Mo. 367; Mo. State State v. 414; 194 Nelson, 256; 450; Mo. v. 81 Mo. Cave, 146 State State App. 159; 44 Mo. State v. Breitweiser, v. 88 Mo. Miller, App. v. Powers, 136 Mo. State 648; 194; Morse, State v. (2) general acquittal It is rule that the Mo. 90 prosecution criminal of the defendant subsequent prosecution not bar a testified, does perjury testimony. against in his him for State Mo- v. v. 550; Yandemark, State 58 Atl. 715; 216 Mo. State
ran,
Teagure
476;
Pac.
v.
Bevill,
Commonwealth,
v. Williams,
72 Hashagen v. 696; United Fed. States, 169 165 S. W. request (4) the defendant failed in- Where 396. in the on all law the failure structions court to of v, is 162 not error. Fisher, instruct State so 394 OP COURT SUPREME v. Tedder. State West- State v. 565; 166 Mo. Melvin, 668; Mo. State v. State 100; 118 Mo. Oantlin, 159 Mo. v. lake, 669; State 141 Sacre, v. Mo. Plilsabeck, 348; v. Objections 132 Mo. State specifically stated, must be to instructions in the for new trial there motion and unless so stated nothing 271 v. 94; State Mo. State Rowe, for review. Gallagher, Daugherty, 222 788; 228 W. State v. S. v. (5) In Mo. 555. a Chissell, 245 467; State v. S. W. necessary charge perjury that the evidence which of it is sustaining perjured, the facts in material be was perjury State was committed. matter in which v.’Jennings, 214 Mo. State v. Ackerman, Mo. 552; 278 Day, Mo. 568; Faulkner, State v. 332; Mo. 249. appellant August 25,
RAILET, C. On Washington County, grand jury of Mis- indicted caption perjury. Without and the crime of for souri, signatures reads follows: the indictment jurors grand Missouri, of em- of the State “The inquire charged panelled, within for sworn Washington bodjr County of and State of of charge, present and their oaths Missouri, August term at the Circuit heretofore, to-wit, County, day Washington Au- 23rd Court of county E. gust, before the Hon. aforesaid, at the Twenty-first Judge Dearing, Judicial Circuit M. Judge of the said of Missouri the State ex-officio County Washington a certain issue be- Court, Circuit charged Milton Tedder, of Missouri the State tween stealing grand for the in the with plain- nighttime, Missouri the said State of wherein Milton Tedder was came tiff and the said said court then law, due form on to be tried competent having authority in that behalf, there by jury there then and tried of said the said issue duly county sworn and taken between in that behalf upon which parties trial Milton aforesaid; apd thep appeared a$ there witness Tedder *5 v. Tedder. in on in cause, behalf of himself said duly action sworn and was then and there aforesaid, oath was court; and took his oath the said which before then Milton Tedder and there administered to the said McGready, deputy clerk then and there S. D. who was competent power having of said and full and au- court, thority said Milton to administer the said oath to the Tedder that that the evidence behalf, he, give and there, said Milton to the court Tedder, should touching jury 'aforesaid, to the said sworn as so question parties, matter then in between the said should nothing truth. be the truth and but the truth, whole joined And so that, at and the trial of said issue parties it there be- beween said then and aforesaid, question and a material whether the said came April on Milton Tedder stole nine chickens and nighttime Parmley during from one Eliza and thereby grand guilty stealing for the of said during nighttime; that Milton and said chickens on the issue Tedder then and there trial of said and feloniously, wilfully, corruptly upon his oath aforesaid jury falsely court and and before the aforesaid did de- following, pose effect, swear substance and and say, April the said Milton he, Tedder, that is on eight p. between the hours and nine o’clock 27, 1920, Aquilla purchased from nine chickens Cole m., paid Nealy therefor further $6.75; Stoner came to that said said Stoner his house stated Cole riding- aforesaid, were between the hours horse and had said nine black certain chickens Milton he, further said said Tedder, County, a sack; and Belgrade, Washington and at thereafterwards Nealy boys recognized Stoner as one of the Missouri, got 27, 1920, his house down came to who horse and took the nine black said chickens said off of brought placed as aforesaid said chick- sack said of said Milton Tedder the home and sold said into ens aggregate for the Milton Tedder sum to said Aquilla in truth and $6.75; whereas, fact, SUPREME COURT OF MISSOURI,
State Tedder. Cole and ride on said black horse *6 up to said Milton April Tedder’s home on 1920, said 27, and did not have said nine chickens or other chickens said sack and that said and Cole Stoner did not sell to said Milton Tedder said nine chickens for aggregate sum of but that $6.75, the said Milton Tedder 27, county 1920, at and in the and during nighttime, state aforesaid and the take steal, away carry premises from the of Eliza Parmlev the chickens described- as aforesaid and which said nine property Parmley. were the of the said Eliza grand jurors upon
“And so the aforesaid, their say, oaths aforesaid, the said Milton Tedder, on August county the said at the and state afore- before circuit said, court aforesaid, the trial aforesaid, did, manner and form felon- aforesaid, iously, corruptly wilfully, falsely commit wilful and corrupt perjury; against peace dignity ’’ State. disqualification
Owing Judge of Dearing to duly sit in the Honorable A. H. Harrison was special qualified judge try elected and as this cause. formally arraigned Defendant plea and entered a guilty. He of filed a demurrer to said indictment, plea which overruled; likewise filed of former jeopardy, which was also overruled. The case was tried jury following before a March 1921, and the ver- dict returned: jury in
“We, above entitled cause, find the guilty perjury, Tedder, Milton charged punish- in this in the indictment cause and we fix his years penitentiary. therefor at two ment “Arthtjb Kelsey, Jury.”
“Foreman of July prosecuting attorney 2, 1920, On of Wash- ington County in the county, filed, circuit court of said caption, which, without an information, reads as fol- lows :
State .v. Tedder. Prosecuting Attorney “Chas. H. Richeson, within County Washington and for the in the State of Mis- souri, informs court that Milton Tedder on the— April, day County 1920, and the said Wash- ington, unlawfully feloniously did then and there nighttime carry away in the take, steal and from the messuage Parmley premises upon Eliza dwelling her house situate, fowls, certain domestic property Eleven to-wit: chickens, of the said Eliza Parmley, against peace dignity of the State.
“Chas. H. RichesoN, Attorney.” “Prosecuting Appellant was tried under said information, acquitted jury. duly He was witness, sworn as a *7 in and testified own his in the trial behalf, of said lar- ceny under information case, the aforesaid. tes- His timony rapher stenog- taken in was short-hand the official the in court,
of the trial the of case supra. By agreement open of counsel, the court, stenographer, taken defendant, jury testimony, was read transcribed and as his objection; transcript without set out in is the on file herein. The evidence of .as transcribed jury, read to the substance as That follows: Belgrade Washington born he and raised at was County, thirty-two years that he Missouri; was old and, April 27, 1920, on lived on a farm about two miles from public Belgrade, farming, close to the road; that he was a had some stock and few chickens; that he had known Parmley, who Miss the since testified 3rd bought April; that he nine chickens about seven which were of one kind; that of said number there was brown chicken, and a black with one stripes purchased that he it; these nine chickens, be- eight night, April tween and nine o’clock at 1920; brought place night, that the by were to his after boys, two who had the chickens in two sacks; that he time; not them at the did know that he did not know they standing from, came as he first where saw them SUPREME OF COURT
State v. Tedder. gate; hatching at Ms that he and no there, one else present; boys; that he did not know one that years was about nineteen old the other one about complexioned, that sixteen; one was dark and the other boy; they say they got a smaller that not where they they that chickens; told him wanted to sell he,paid boys seventy-five piece chickens; that cents a making for each paid the nine total chickens, amount ,of wings $6.75; them that he cut the chickens, they' fly, so that could turned them that out; he cut their also some of that enclosure, he an tails; had kept he then turned them chickens, out public highway; on the that he made no effort to hide boys, that them; he did know these no made effort to ascertain who that he were; afterwards boys, Belgrade, one that saw hé identified at as boys being chickens; him one of the sold name Stoner; one about lived Belgrade, quarter mile from and not over a of mile Parmley’s; from Miss boy that he did not know the other recognizing certain; that after Nealy Stoner, boys him as who sold the chickens, one he had no with that at him; conversation the time he saw indicated, above he knew the Stoner, chickens had been that the chickens had been stolen; taken from him (defendant) that time; that Stoner was alone when gone away; that he had learned Stoner him; he saw had subpoena that" issued a for Stoner from circuit *8 found; he not be that and could court, present Stoner not (defendant) say trial; at that he did not recognized anything to when he Stoner him, because (defendant) him man with and there was a he wanted procure get a and warrant for Stoner, to back without letting know he identified him. the latter thought defendant cross-examination, he said
On Aquilla boy Cole; that he other found out who (witness) arrested; after he was, he Stoner that Nealy that he first Stoner; never with worked learned Parmley day had lost her on the chickens Miss he was TEEM, APBIL Tedder. Aqnilla thought one of the that he Cole was arrested; boys Nealy who him the that he chickens; sold knew wings he and. Stoner’s that cnt off tails father; Aqnilla keep flying; that Cole him, the chickens to them from neighborhood, (witness) and he lived in'his saw anything every he while; once in that never said a Aqnilla Cole the chickens. abont Parmley that she eleven
Miss Lettie testified lost night; April dnring abont that 26, 1920, chickens evening of her hen- before she fastened door morning that on the next she fonnd honse a chain; with open they all broken; chain were door and the that chickens; that she located them and were mixed hens, that she her at home of defendant knew Tedder; got them chickens, sheriff, with the assistance of the they disappeared premises; on that from defendant’s Tuesday, night, Saturday after- she them on found say defendant stole her that she could not noon; taking her he no resistance to that offered chickens; never the chick- chickens; claimed own that ens. that lived about one mile testified he quarter that he knew the de- Caledonia; a from him known for abont Tedder, Milton had
fendant, years; with defendant at thresh- that he worked two ing defendant several times that he met after machine; April on 27, 1920; the defendant that he knew that; did not a black horse, own date, the above witness did not one; he on the above father owned but his night $6.75; defendant nine chickens for sell date that sacks; not have said chickens two that he he did nothing that he had do chickens; steal did not Aqnilla go that he Cole did not chickens; with said eight house between and nine o’clock at to defendant’s night riding black 1920, horse; did sell to defendant for no chickens had $6.75; July July 2, 1920, between tliat Aquilla Cole, or with have nine himself, ride a horse to the black home of sack, in a *9 SUPREME COURT OP MISSOURI, State v. Tedder. any defendant sell liim or num- nine chickens other any any that ber,; he never sold defendant chickens at county time; that he was not in the when the living County, ease was in Franklin Mis- tried, nothing souri; that he knew about said and did trial, nothing being present. to evade
On witness he left cross-examination, said Wash- ington May County about went to Brule County; family in Franklin that rest lived Washington County; that he Tedder road, on the saw any once, after the chickens were but never stolen, had conversation with him that knew then; he before he left Washington County that defendant was for arrested Parmley’s stealing Miss that he had no au- qhickens; thority to his father’s black fa- ride without his horse, that ther’s he often rode the horse consent; to town; that stealing at time defendant was tried for (witness) twenty working he chickens, about miles from Union.
Aquilla April testified that Cole 27, 1920, he living father near Potosi; that with his he was sixteen years age; that date, above he knew the defendant Nealy Stoner; Tedder also knew that he did not any- any any sell him at nor he did know time, Parmley thing, re- chickens; about he never that, any money ceived from defendant he chickens; Nealy any with Stoner, sell not, chickens to defend- ant $6.75, and receive therefor other sum; he known about one had defendant month before that he 27,1920; saw about a defendant half dozen times, and had a few conversations him; with that he met de- appellant’s fendant on the road, had been house twice; that defendant name; called him saw after chickens were stolen and talked with him once.
On cross-examination witness he was home night April on the 27, Í920;’ that he saw frequently, attended the school. same *10 v. Tedder.
State interposed a de- rested, The was overruled. evidence, which murrer substantially Appellant behalf, in his testified own years thirty-two and had old, That he was as follows: was he Washington County that life; his all lived acquitted larceny in the was case, sworn and testified purchasing jury; then about a that he testified testimony Cole; that nine chickens Stoner and from gave he then swore true; trial that he at said was and Cole purchased from Stoner he said chickens testimony April that he true; that was this 27,1920, bay boys riding horse, dark swore said were a black he that said this testified true; that was brought bpys this sacks, him the above chickens paid truthfully trial he swore true; was that he truthfully boys he chickens; for that nine these $6.75 recognized Nealy Stoner in the he swore former case that boys he chickens; him the that as one of the who sold truthfully Nealy at met then, that he Stoner testified Nealy Belgrade, time this was the first he knew who April acquaint- he not was; that on 27,1920, Stoner Nealy Stoner; that he never met the ed with latter at years threshing 27, three before; machine that Aquilla Cole; did that never he not know he had he know been associated with him, and did where lived. helped that he he testified On cross-examination threshing thresh, Hull with the machine several and was days;. boy driving wag- Hull’s Prank the water bought house; he ;on that never had a chicken he night, aside from this deal. George testified that Mallow about June met defendant and latter, knew who asked him Nealy name of whom saw at Stoner, Bel- then grade, that he Missouri; not talk with defendant at did boy. time about the Stoner Nealy cross-examination
On he testified that Stoner sight not in when defendant asked the name of the Mo—26 SUPREME COURT OF Statev. Tedder. boy working (witness) Crummer; for Fred that he point Nealy out Stoner to defendant. Frank Hull testified that h~ knew boyhood; had known him since that defendant worked running threshing machine; for him in that he never together. saw defendant and Defendant offered in evidence the information here- judgment acquittal, out, tofore set and the other papers including case, in the instructions which given were in said cause. Defendant also offered in evi- dence, demurrer, the indictment in this also the plea jeopardy, former etc. *11 rested, State, rebuttal, Defendant and the offered Stoner, as a witness Homer who testified that in 1918 he Nealy place, Stoner saw defendant at Hull's gave tobacco; Stoner then defendant a chew of cigarettes. Nealy that defendant smoked Stoner cor- being roborated his brother as to the chew of tobacco given to defendant. interposed by
No demurrer to the evidence was de- fendant at the conclusion of the whole case. rulings court, The instructions and of the as far as
necessary, opinion. will be considered in the Defendant, time, in due filed motions for a new trial judgment. ~ndin arrest of Both motions were over- duly ruled, and defendant was sentenced in accordance Judgment with the terms of said verdict. was entered in appeal granted due form and an him to this court. appellant's assignment errors, I. In first it is given Two, contended that Instruction in behalf of the State, is erroneous because it does not define "cor- roborating words, circumstances." In other it is not wrong claimed that the instruction is Defining . particular, Corroboration, but that it should have defined quoted instruction, the above terms. Said given request and the one at the of defendant on the same subject, placed juxtaposition, are in order to show give that defendant invited the court to said instruction present in its form. Vol. v. Tedder. Instruction Number Two. Defendant’s ‘£ n in Given. The court further ‘ ‘ you jury instructs The court
structs the you ought ought jury de convict the the not. you un- believe fendant unless the convict you find falsity of believe and that the find less that the evidence which, the statement the from up- by falsity under statement indictment, the the by indictment, instructions, on which, these against charge charge against is him based, him your your has has been to satisfac based, been fully fully tion eith establish- established, satisfaction testimony by by er more either ed, of more than one credible witness, than one credible by by one that of such or witness, one wit ness other corroborated such witness corroborated cause, this evidence other evidence your your mind convinces which convinces of the testi the truth of the tes- the truth mind of mony single timony single wit of such of such wit- ness and of to the fact and to fact, ness falsity falsity statement; statement, of the you you unless then unless fur- then, and not find the evidence further from evi ther from find all all oth- dence the existence of existence of *12 of er the offense, the other elements the elements of necessary nec offense of facts of the facts the essary authorize his to his conviction. to con authorize you words, such element and In before viction, as other fully guil- fact hereinbefore can find the defendant are ty it words, indictment, In set other under the out. you upon to can find de devolves the before State prove your guilty in fendant under the to satisfaction by testimony two of it devolves dictment, your prove one witnesses, to to credible or the State beyond a witness cor- credible roborating satisfaction and circumstances tes reasonable doubt proved by timony other wit credible of two credible OP COURT SUPREME v. Tedder. be- in the cause, witnesses wit nesses one credible yond corroborating doubt, a reasonable cir ness Tedder within proven Milton other cumstances years three next before in credible witnesses this Monday in March, first cause that tbe maliciously wilfully, years within three next be corruptly day did commit fore the 23rd of Au perjury.” gust, said 1920, stole the eight from the chickens Parmley.” Eliza (a) having The defendant asked, obtained, “ subject dealing
above instruction with the corroborat ing identically lan circumstances,” couched same guage supra, as that Instruction contained in Two position complain in no to de court’s failure to “ corroborating [Simpson fine circumstances.” (Mo.) Wells, 237 S. W. l. c. 528, cited; and cases Arono Arky, (Mo.) Harp vitz v. 219 W. l. c. 622; Miller v. S. ster, 273 Mo. l. c. 614, 201 854.] S. W.
(b) requested give The trial court was not an defining “corroborating instruction circumstances,” nor objected ground said Instruction Two it failed to define said terms. The motion for a new assign trial does not as error the action of the court failing “corroborating to define circumstances.” (c) properly Said Instruction Two law declares the respect complained matter by appellant. rely upon contradictory The State did not or inconsist- ent statements of defendant for conviction, but, on contrary, positive relied on the two Aquilla witnesses, Cole, to the effect, never sold or delivered con- troversy to defendant. The instructions set heretofore given which were out, appel- behalf the State and lant, were therefore undertaking sufficient, without “corroborating define circumstances.” (d) any viewpoint, Considered from we are *13 opinion, foregoing that the contention is without merit. Tedder. t. assignment Appellant in of errors second II. liis overruling plea charges his of with error in the court larceny hereto- jeopardy. information is The former de- face that shows its out, set fore and Former charged with Tedder was Milton fendant Jeopardy. nighttime, feloniously stealing from in the premises messuage Parmley, being upon the the of Eliza April dwelling her eleven situated, —, 1920, which property Parmley, etc. Section chickens, the of said the in- under above 3314, 1919, Revised which Statutes follows: filed, reads as formation away carry person “Every steal take, who shall and any nighttime in the fowl or fowls from domestic premises upon messuage or which from another, dwelling person the purchasing; of another is and situate, house knowing them or fowls such fowl domestic larceny, guilty grand to have been shall be stolen, regardless conviction, thereof,, of the value penitentiary punished by imprisonment in the shall he years by exceeding exceeding five or fine not two jail by county in the hundred or confinement dollars, exceeding such im- two both fine and months, prisonment.” acquitted larceny,
Defendant was prosecuted having indictment for com- now under the during' progress perjiiry of said trial, mitted night swearing that on 1920, therein bought controversy from Stoner and steal same. The did not Cole, attempting possession former to account trial, was bought recently property, showing stolen that he paid Cole for same. This evidence was larceny material his defense if he wil- case, intentionally falsely respect fully swore purchase alleged from Cole, of said chickens Stoner and acquittal guilty an to secure he was independent perjury, crime of defined in Sec- tion Revised reads as Statutes follows:
406 OF SUPREME COURT v. Tedder.
“Every person corruptly shall and who wilfully swear, matter, affirm material testify any or falsely ad- oath or or affirmation, declaration, legally any in matter or before ministered, any cause, proceeding, any court, public tribunal or or body officer, and whoever shall or falsely, by any take swearing affirming, oath pre- by scribed the State, of this law or Constitution ordinance such thereof, when oath shall be ad- legally ministered, shall be perjury.” deemed guilty
On in presented the the facts record this by the charge relate to en of perjury different offenses. It is true tirely that defendant was acquitted of grand but larceny, if he perjury, committed swearing that he bought the chickens from Parmley Stoner and Cole on the night April 27, he was 1920, liable prosecution under therefor, law, regardless of the larceny v. acquittal. S. Ruddy, 228 W. [State l. (Mo.) c. 762 and cited; State cases v. Jennings, 278 Mo. l. c. 213 l. 552-3-4, W. 423, S. c. and cases cited; State v. Hardiman, 277 Mo. l. S. c. 209 W. l. c. 880; State v. 216 Mo. 115 Moran, 1125; S. W. State v. 214 l. Ackerman, c. 332, 1087; Mo. 113 S. W. State v. Day, 249; Mo. l. c. State v. Mo. Wakefield, 73 549.] ,of In view foregoing, plea former jeop- ardy was properly overruled by the trial court.
III. It by appellant contended that his demurrer to the indictment should have sustained. been Said de- murrer, caption without reads as signature, follows:
“The Milton said Tedder, own proper person, comes into court, and having seen heard read the indictment herein, says that indictment facts therein' contained stated are not Indictment. sufficient law and do constitute any offense under laws .the State, this and that he is bound to answer said indictment says: because he
“1. That material fact alleged the trial which the false alleged was given is testimony not of necessity contradicted false alleged testimony. TEEM, APEIL
State v. Tedder. alleged "2. That false does not con- dispute alleged question. tradict or material alleged "3. There is a fatal variance between the question alleged testimony. material and the false prays judgment "Wherefore and that may discharged court lie be dismissed from the premises specified." in said indictment speaks itself,
The indictment heretofore set out fully requirements meets the of Section Re Ruddy, (Mo.) [State vised Statutes 1919. 228 S. W. *15 761; Walker, 375-6; l. c. State v. 194 Mo. l. c. State v. Nelson, 256; Powers, 194; 146 Mo. State v. 136 Mo. Huckeby, 414; Cave, 450.] State v. 87 Mo. State v. 81 Mo. requirements statute, It contains all the of the and is sufficient as to both form and substance. The demurrer properly thereto was overruled. instruction,
IV. The defendant asked but one given by request the court. He did not the court give any instructions, modify additional or to those given. opinion that were We are of the that the instruc- given tions were as favorable to defendant as the law against authorized. No error was committed Guilt rejection him in the admission or mony. of testi~ Established. case, The when reduced to its final analysis, simply presented for the consideration of the jury question as to whether defendant committed perjury larceny case, swearing in the trial of the bought Parmley that he chickens from Stoner and Cole, night April 27, on the 1920. Neither Stoner nor present larceny case, Cole was at the trial of the nor did testify either therein. Both Stoner and Cole testified present case, in the did not sell or deliver the controversy April 27, 1920, chickens in to defendant on sharp o r other time. A issue of fact was thus presented, jury against and the found defendant on sub testimony. opinion stantial We are of the that no error was committed in the trial of the of which the de legally complain. fendant can SUPREME OF COURT Ward v. Horton. judgment accordingly Tlie below affirmed. White and Reeves, concur. CG., foregoing opinion
PER CURIAM: The of Railey, hereby adopted opinion C., is All of the court. judges concur. Appellant, B. WARD, THOMAS v. MRS. J. W. MORTON. One, Division 1922. June Against QUIETING TITLE: Suit Paroled. Convict: Res Ad- judicata. Notwithstanding (See. 2291, the words of the statute 1919) declaring imprisonment R. S. that “a sentence of in the penitentiary suspends rights for a term less than life all civil persons during thereof,” quiet so sentenced the term a suit (cid:127) may against alleged lands, who, title be maintained owner of although imprisonment convicted and sentenced to a term of penitentiary, day on the conviction and sentence was paroled, incarcerated, custody was never was not taken into sheriff, large finally discharged by but allowed to remain at *16 judgment court; against and a rendered him default after personal valid, service is since he was under no actual restraint opportunity appear present and had full in court and his de- parole operated abeyance suspension fense. The to hold legal rights consequences contemplated by his civil other statute, judgment conviction, and the least in so far as it validity affecting property, affected the of transactions stayed imprisonment began. until his actual Appointment powerless -: -: 2. of Trustee. The court is appoint appear quiet a trustee to and defend a suit title for paroled incarcerated, convict who never been has for the reason (Sec. 2297, provides 1919) may the statute R. S. trustee appointed only upon production “copy sentence, be of a duly certified, satisfactory proof actually that such convict imprisoned under said sentence.” provisions -: -: Effect of Parole. The of Section Revised Statutes first declaring enacted in 1835 and that “a