The State v. Moran

• Decision Date: 02 February 1909
• Citation: 115 S.W. 1126,216 Mo. 550
• Parties: THE STATE v. WILLIAM J. MORAN, Appellant
• Court: Missouri Supreme Court

115 S.W. 1126

216 Mo. 550

THE STATE v. WILLIAM J. MORAN, Appellant

Supreme Court of Missouri, Second Division

February 2, 1909

Appeal from St. Louis City Circuit Court. -- Hon. Hugo Muench Judge.

Affirmed.

Herbert S. Hadley, Attorney-General, and F. G. Ferris, Assistant Attorney-General, for the State.

(1) The indictment in form and substance is sufficient to charge the crime of perjury. R. S. 1899, secs. 2033, 2039; State v Huckeley, 87 Mo. 414; State v. Powers, 136 Mo 196; State v. Nelson, 146 Mo. 256. (2) The demurrer to defendant's plea in abatement to the indictment was properly sustained. The law requiring a preliminary examination in felony cases before the filing of an information did not become effective until July 14, 1907, a date subsequent to the date of said robbery trial. At the time the information was filed in said robbery case, the law did not require a prior preliminary examination. Laws 1907, p. 243; State v. Harvey, 214 Mo. 403. (3) (a) The question as to whether defendant had ever in his lifetime been convicted of any crime was a material issue in the robbery case in which defendant testified, and his false answer thereto was a proper assignment of perjury. His false statement was material because calculated to affect his credit as a witness. U. S. v. Landsberg, 23 F. 585; Regina v. Ann Lavey, 3 C. & K. N. P. Cases, 26; 2 Roscoe's Crim. Evid., 850 (8 Am. Ed. 1062); Reg. v. Gibbons, 9 Cox's Crim. Law, 105; State v. Day, 100 Mo. 249; Williams v. State, 68 Ala. 551; People v. Barry, 63 Cal. 62; People v. Courtney, 94 N.Y. 490; R. S. 1899, sec. 4680. (b) The question as to the materiality of the false statement is for the court. State v. Williams, 30 Mo. 364; State v. Fannon, 158 Mo. 149; 4 Elliott on Evid., sec. 3073. (4) The court committed no error in the giving and refusing of instructions. Authorities cited under point 3.

OPINION

FOX, J.

This cause is brought to this court upon appeal by the defendant from a judgment of conviction, in the circuit court of the city of St. Louis, of the offense of perjury.

At the December term of the circuit court of the city of St. Louis, and on the 23d day of December, 1907, the grand jury of said city returned an indictment against the defendant, charging him with having committed willful and corrupt perjury while testifying on the 1st day of July, 1907, in said circuit court, on a material issue in a cause then on trial wherein the State of Missouri was plaintiff and William J. Moran, Charles Fox and Harry Flavin were defendants, in this, that said William J. Moran, this defendant, testified that he had never been convicted of any crime in his lifetime, whereas in truth and in fact he had been convicted of a crime specified in the indictment. Subsequent to the return of the indictment the cause was assigned to Division No. 12 of said court, and on the 31st day of December, 1907, the defendant was duly arraigned upon the indictment and pleaded not guilty to the charge therein. The cause was continued to the February term of court, when defendant interposed a demurrer to the indictment, which was by the court overruled. On the 5th day of February, 1908, the defendant was put upon his trial before a jury and upon this trial the jury were unable to agree upon a verdict and were discharged from further consideration of the cause. Subsequent to this trial the defendant filed an application for a change of venue on account of the bias and prejudice of the judge, which was granted, and the cause and all the papers therein were certified to Division No. 10 of said circuit court. On the 2d day of March, 1908, the defendant, by leave of court, withdrew his former plea of not guilty and filed his plea in abatement, to which plea in abatement the circuit attorney filed a demurrer, which was by the court sustained. The defendant then filed a demurrer to the indictment, which was by the court overruled. Defendant was again arraigned upon the indictment against him and he refused to plead to said indictment, whereupon the court ordered a plea of not guilty entered. The trial of the cause then proceeded.

Upon said trial the State introduced Robert Walker, deputy circuit clerk of the circuit court for criminal causes in the city of St. Louis, who testified that he had charge of the records of Division No. 11 of said court, and was such clerk in charge of such records on the 1st day of July, 1907. He said that he was present in the court room of that court on the 1st day of July, 1907, where the business of said court was going on, and that he was then acting as clerk of said court, of which Hon. Moses N. Sale was then judge. That upon that day the case of State of Missouri against William J. Moran, Henry H. Flavin and Charles R. Fox was being tried; that the defendant, William J. Moran, took the witness stand in behalf of himself and codefendants in the trial of said cause on that day, to whom the witness, acting as clerk as aforesaid, administered the usual form of oath: "Do you solemnly swear that the testimony you are about to give in this cause will be the truth, the whole truth and nothing but the truth; so help you God?" Said witness produced the record of said court, in which was recorded the proceedings thereof under date of July 1, 1907, showing the trial in said court on said day of the said case of State of Missouri against William J. Moran, Henry H. Flavin and Charles Fox on charge of robbery in the first degree.

Harvey J. Ready, sworn for the State, testified that he was official stenographer of Division No. 11 of said court under Judge Sale, and was acting as such in said court on the 1st day of July, 1907, at the time of the trial of said cause of the State of Missouri against Moran, Flavin and Fox; and it was his duty at said trial to report in shorthand the proceedings thereof, and to take down verbatim all that was material to the case; and that he took down the testimony of all the witnesses in said trial in said cause. He testified, by reference to his stenographic notes, that the following question was asked of defendant, then testifying as a witness in said cause of the State of Missouri against Moran, Flavin and Fox: "Q. Have you ever been arrested at any time in your life -- have you ever been convicted of any crime?" To which question the defendant replied, "No, sir." He also testified that it was his recollection that this question was asked by the attorney for said defendants, Moran, Flavin and Fox. He identified the defendant as having seen him at said trial on the 1st day of July, 1907, and while he did not distinctly remember that he testified, he had a vague recollection that he was the man who testified as William J. Moran on that occasion. While he could not, without looking at his notes, tell from his recollection the exact question and answer referred to, he had a vague recollection independent of his notes that such was the question asked and the answer made.

The defendant, by his counsel, in open court, admitted that defendant, William J. Moran, had been duly convicted and sentenced and served a term in the penitentiary, in accordance with the allegations in reference thereto, as contained in the indictment.

At the close of the evidence on the part of the State, the defendant asked the court for an instruction, that under the law and the evidence the jury must acquit the defendant, which instruction the court refused to give.

Defendant offered and read in evidence the record of June 10, 1907, of said Division No. 11 of said court for criminal causes, contained in the same record book heretofore referred to, showing in effect that on said June 10, 1907, in said case of State of Missouri against Moran, Flavin and Fox, the said defendants were brought into court by the sheriff, were duly arraigned and each said defendant pleaded not guilty to the charges contained in said information. The defendant did not take the witness stand in his own behalf, and he offered no evidence except the said record of June 10th.

At the close of the evidence the court fully instructed the jury upon every phase of this case to which the testimony was applicable, and the cause was submitted to them and they returned a verdict finding the defendant guilty of perjury as charged in the indictment, and assessed his punishment at imprisonment in the penitentiary for a term of seven years.

A timely motion for new trial was filed and by the court overruled. Sentence and judgment were entered of record in accordance with the verdict, and from this judgment the defendant prosecuted this appeal, and the cause is now before us upon the record for consideration.

OPINION.

The appellant is not represented in this court. There is neither brief nor any suggestion whatever indicating the complaints of error upon which the appellant relies for reversal of this judgment. However, under the provisions of the statute, even though appellant is not represented, we are required to carefully examine the record and determine whether or not there was any substantial error in the trial of the cause. In obedience to such requirement of the statute we have carefully examined the record before us, and will give the legal propositions disclosed such attention as their importance requires.

I.

It is insisted in the motion for new trial that the court committed error by its action in sustaining the demurrer to the plea in abatement to the indictment interposed by the State.

It is sufficient to say upon this proposition that the record discloses that the charge of perjury in this case was predicated upon the testimony which defendant gave while testifying in his own behalf about the 1st day of July, 1907 in a case in the circuit court of the city of St. Louis, wherein...