State v. Ackerman

• Decision Date: 24 November 1908
• Citation: 113 S.W. 1087,214 Mo. 325
• Parties: STATE v. ACKERMAN.
• Court: Missouri Supreme Court

113 S.W. 1087

214 Mo. 325

STATE v. ACKERMAN.

Supreme Court of Missouri, Division No. 2.

November 24, 1908.

PERJURY (§ 11)—MATERIALITY OF TESTIMONY —TESTIMONY BEFORE GRAND JURY.

On an investigation by the grand jury as to persons illegally selling intoxicating liquors, testimony of a drayman as to whether he had hauled beer at various times during the nighttime to the persons charged with the illegal sales, and to the places where the sales were alleged to have been made, was material, and perjury could be predicated thereon, though it had no reference to the actual illegal selling.

Appeal from Circuit Court, Henry County; C. A. Denton, Judge.

Clarence Ackerman was charged with perjury. A motion to quash the indictment was sustained, and the state appeals. Reversed and remanded.

Herbert S. Hadley, Atty. Gen., and Frank Blake, Asst. Atty. Gen., for the State.

GANTT, J.

On September 13, 1907, the grand jury of Henry county, Mo., returned an indictment against the defendant charging him with having committed willful and corrupt perjury by testifying falsely in a proceeding before the grand jury of said county on the 12th of September, 1907. The defendant filed a motion to quash the indictment, which was sustained by the court, and a motion for new trial was overruled and appeal granted to the state. The indictment is in the following form:

"State of Missouri, County of Henry—ss.:

"In the Circuit Court, September Term, 1907.

"The grand jurors for the state of Missouri, duly impaneled, sworn and charged to inquire within and for the body of the county of Henry, and state of Missouri, upon their oath present and charge: That at the county of Henry, and state of Missouri, on the 12th day of September, 1907, and during the September term, 1907, of said court, the grand jury of the state of Missouri, within and for the body of the county of Henry, were then and there duly and legally convened, having been then and there duly and legally impaneled, sworn upon their oath, and charged according to law in said court, and that a certain complaint was then and there made and presented before said grand jury, against one Harve Smith and George Brent, for the offense of illegal sale of intoxicating liquor, including beer, committed by said Harve Smith and said George Brent, in the said county of Henry, outside of the city of Clinton, and that in the investigation and hearing of said complaints before said grand jury, so impaneled and sworn as aforesaid, it developed that on or about the night of the 17th day of June, 1907, one Clarence Ackerman, a drayman operating a dray wagon in said Henry county, between Clinton and Deepwater, hauled a dray wagon load of beer, said load of beer consisting of twenty-five or thirty cases of beer from the back door of J. N. Bixman's dramshop, in said city of Clinton, to the barn and residence of Harve Smith, in said city of Deepwater, and there unloaded the same, and that at various times since said 17th day of June, said Clarence Ackerman hauled loads of beer at night from Clinton for said Harve Smith, at Deepwater, consisting of fifteen to twenty cases of beer to the load, and that at various times prior to said 12th day of September, 1907, said Clarence Ackerman hauled wagon loads of beer in cases from Clinton to and for George Brent of Deepwater.

"That at said investigation said Clarence Ackerman was duly summoned as a witness before said grand jury, and did then and there personally appear as a witness before said grand jury in regard to said complaint, and that said Clarence Ackerman was then and there duly sworn by the foreman of said grand jury and took upon himself his corporal oath, the said foreman, to wit, one Charles H. Williams, being then and there duly and legally authorized and empowered and having competent authority to administer the said oath to the said Clarence Ackerman, and that then and there it became important and was material to the issue and to the investigation of said complaints by said grand jury, whether said Clarence Ackerman had any knowledge of said transportation and hauling of beer from Clinton to Deepwater, and for whom the hauling was done, and the time and circumstances thereof.

"And then and there he, the said Clarence Ackerman, on his corporal oath and before said grand jury, did feloniously, falsely, corruptly, knowingly, willfully and maliciously depose and swear in substance and to the effect following: That he never, at any time, hauled a dray wagon load of beer to Deepwater; that he never unloaded any beer at Harve Smith's barn; that he never hauled anything for Harve Smith; that he never hauled any beer for George Brent; that he never hauled any beer for Harve Smith; that he never made a trip to Deepwater at night, whereas, in truth and in fact, the said Clarence Ackerman, on or about the 17th of June, 1907, hauled a dray wagon load of beer to Deepwater; and whereas, in truth and fact, he did haul beer for George Brent; and whereas, in truth and fact, he did haul beer for Harve Smith; and whereas, in truth and fact, he did make trips to Deepwater at night, all of which the said Clarence Ackerman then and there well knew. And so the grand jurors, aforesaid, upon their oath aforesaid, do say that the said Clarence Ackerman, at the county of Henry aforesaid, on the 12th day of September, aforesaid, in the year 1907, in the manner and form aforesaid, feloniously, falsely, knowingly, willfully and corruptly committed willful and corrupt perjury, contrary to the form of the statute, and against the peace and dignity of the state.

                               "Nicholas B. Conrad
                                   "Prosecuting Attorney
                 "A true bill
                     "C. H. Williams
                          "Foreman of the Grand Jury."
                

The defendant is not represented in this court by counsel, and we must look to the grounds assigned in the motion to quash as the basis of the...