State v. Allen

• Decision Date: 13 May 1902
• Parties: STATE v. ALLEN.
• Court: Missouri Court of Appeals

69 S.W. 604

94 Mo. A. 508

STATE v. ALLEN.

Court of Appeals at St. Louis, Missouri.

May 13, 1902.

PERJURY — FALSE AFFIDAVIT — FALSE CHARGE OF LARCENY — SUFFICIENCY OF INFORMATION — EVIDENCE — HARMLESS ERROR — INSTRUCTIONS — DEFENSES — ADVICE OF COUNSEL.

1. In an information charging one with perjury in making an affidavit that certain persons "stole, took, and carried away with felonious intent to steal" certain property, etc., the negative assignment should follow the language of the affidavit, and allege that such persons did not "steal, take, and carry away," etc., and should not disjoin the words "steal, take, and carry away," etc., by using "or" between them instead of "and," the conjunctive arrangement of such words being essential to the charge of larceny, the falsity of which the state must prove.

2. On a prosecution for perjury in making an affidavit charging certain persons with larceny of gas regulators rented out by affiant's employer, affiant's ignorance of an order from the renter permitting such persons to remove the regulators and put others in their place did not render such order inadmissible for the purpose of showing the falsity of the charge, but was merely a circumstance tending to show affiant's good faith in making the affidavit.

3. On a prosecution for perjury in making an affidavit charging employés of a gas regulator company with larceny of regulators rented to a customer by another company, by which defendant was employed, it appeared that there was a practice between the two companies according to which when one succeeded in substituting its own regulators for those of the other it would remove the latter, and return them to the owner; and receipts for regulators so returned to defendant's employer were admitted in evidence, some of which were signed by defendant and others by his clerk. Held that, the receipts signed by the clerk being merely cumulative evidence, their admission was not prejudicial.

4. On a prosecution for perjury in making an affidavit charging certain persons with larceny, the court instructed that, if the jury believed that defendant unlawfully, willfully, corruptly, falsely, and voluntarily made the affidavit recited in the indictment, and that the persons so charged with the larceny were innocent, "as he, the defendant, at the time and place of making said affidavit, well knew," and that defendant knew such affidavit to be false, then they must find defendant guilty. Held erroneous, as being an invasion of the province of the jury, in that it virtually told the jury that defendant knew the persons charged by him with larceny were innocent.

5. On a prosecution for perjury in making an affidavit charging persons with a crime, defendant cannot set up advice of counsel as an excuse for making the affidavit, where he failed to communicate to such counsel all the material facts within his knowledge relating to such charge.

Appeal from St. Louis court of criminal correction; Willis H. Clark, Judge.

William Allen was convicted of perjury, and he appeals. Reversed.

R. Lee Mudd, for appellant. Thos. B. Harvey, for respondent.

BLAND, P. J.

The charging part of the information on which appellant was convicted is in substance as follows: That William L. Allen, the appellant, "did then and there unlawfully, willfully, corruptly, and falsely, before Alfred J. Wagenman, the clerk of said court (meaning of the court of criminal correction in St. Louis city), under oath, then and there duly administered by said clerk, as aforesaid, voluntarily, corruptly, falsely, willfully, and knowingly make a certain false affidavit, statement, and complaint," etc., "in words and figures as follows." The sworn complaint then follows, and in which the substantial charge is "that James L. Smith, H. J. Becker, and B. A. Dyer, in the city of St. Louis, on the 8th day of September, 1900, four gas regulators, and one lot of quicksilver, and fittings, all of the value of one hundred and fifty dollars, the property of the Gas Consumers' Association of the United States (a corporation), unlawfully and feloniously did then and there steal, take, and carry away, with the intent then and there to deprive the owner of the use thereof, and to convert the same to their own use," etc. Then, after making further usual descriptive averments the information proceeds with the negative assignments thus: "Whereas, in truth and in fact the said James L. Smith, H. J. Becker, and B. A. Dyer, or either of them, did not," etc., "steal, take, and carry away, with the intent then and there to deprive the owner of the use thereof, and to convert the same to their own use," the said property mentioned; "and so he, the said William L. Allen, at the time of making the aforesaid affidavit, well knew, and well knew the same to be wholly false, untrue and corrupt," etc. A demurrer was filed to the information, which the court overruled. Appellant also objected to the introduction of any evidence, on the ground that the information charged no offense. This was also overruled. The facts disclosed on trial were substantially as follows: Appellant was manager of the St. Louis branch of a corporation known as the Gas Consumers' Association of the United States, hereinafter for convenience designated the "Allen Company." The persons Becker, Smith, and Dyer charged of larceny by the affidavit of appellant were employés of another corporation in St. Louis, called the Gas Consumers' Savings Company, of which Dyer was the manager, and which for convenience will be hereafter designated as the "Dyer Company." Both companies were engaged in the business of supplying gas consumers with regulators designed to economize the expenditure of gas. The regulators were called "gas regulators," and were used by being attached to the gas pipes. The companies were competitors in business. Dyer's Company sold their regulators to its customers, or rented them with the privilege of purchasing. Allen's Company rented its regulators. They both solicited each other's customers, and when one would succeed in displacing the regulators of the other it would take them out, and return them to the owner. In the spring of 1900 complaints arose between them about alleged shortages in part of the appliances of the regulators, at which time Smith, a witness for the state, and an employé of the Dyer Company, testified that he and Allen had a conference about the shortages, and made a verbal arrangement about these shortages. Allen, however, denied that any such arrangement was...