State v. Barkwell
| Decision Date | 29 June 1979 |
| Docket Number | No. KCD,KCD |
| Parties | STATE of Missouri, Respondent, v. Charles Edgar BARKWELL, a/k/a Billy Jack Carter, Appellant. 30007. |
| Court | Missouri Court of Appeals |
David V. Bear, III, Bear, Hines & Thomas, Columbia, for appellant.
John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
Before SHANGLER, P. J., and WASSERSTROM and CLARK, JJ.
The information here charged Barkwell with having committed perjury in a prior proceeding instituted by him for a change of name under Section 527.270, RSMo 1969 and Rule 95.01. Barkwell waived a jury and upon a bench trial the court found Barkwell guilty of perjury as charged. Barkwell now appeals to this court.
In the change of name proceeding, Barkwell's verified petition gave the following as his reason for desiring a change of name:
"4. The reason that Petitioner desires such change of name is that his present name has subjected him to ridicule and embarassment (sic), to-wit:
A. That Searcy Richards Barkwell and Raymond Barkwell, brothers of Petitioner, were both convicted felons and served time in the Missouri State Penitentiary; that the conduct of said brothers, coupled with the prison records of said brothers has caused Petitioner undue embarassment (sic), ridicule, mental consternation, and has caused him to be held in contempt in the eyes of many members of the community.
B. That the name of Barkwell has caused him to lose job opportunities and business opportunities.
C. That Petitioner has no criminal record.
D. That Petitioner is of high moral character, the owner of real estate, and is undeserving of the ridicule and contempt to which he has been subjected.
E. That Petitioner is not indebted to any bill creditors.
F. That two individuals named Barkwell serve as bail bondsmen, in Boone County, and this fact causes the Petitioner to be awakened and bothered needlessly by telephone calls at all times of the night."
In support of those allegations Barkwell gave supporting testimony in the change of name proceeding, as follows:
"Q. Now you've alleged certain matters in your Petition, including the fact that your name is presently Charles Edgar Barkwell. You've also alleged that this name has subjected you to ridicule and embarrassment throughout your life, is that correct?
A. Yes.
Q. And in particular that your brothers, Searcy Richard (sic) Barkwell and Raymond Barkwell are both deceased but they're convicted felons and served time in the Missouri State Penitentiary?
A. Yes.
Q. And they've lived in this area, is that correct?
A. Yes.
Q. And that there (sic) conduct coupled with their prison records has throughout your life caused you a great deal of ridicule and contempt and to be held up in that respect to the community, is that correct?
A. Yes.
Q. And has caused you mental anguish and consternation, is that correct?
A. Yes, sir.
Q. Furthermore, you have even had situations where the name of Barkwell caused you to loose (sic) business opportunities and job opportunities, is that correct?
A. Right, yes.
Q. The fact that you were named Barkwell and were associated with the other Barkwells who were . . . had criminal records?
A. Yes.
Q. You have no criminal record whatsoever do you?
A. No, sir.
Q. Never even been arrested for a criminal offense have you?
A. No.
Q. And you are a person, you believe, of high moral character and you are held in high esteem in other areas where you are not known by your brothers past record, is that correct?
A. Yes.
Q. And therefore you feel that you're undeserving of the ridicule and contempt to which you've been subjected, is that correct?
A. Yes."
The information charges and the record in this perjury case shows that the said sworn allegations and testimony were false in that Barkwell in fact had the following series of criminal convictions:
7/29/58 -- common assault
11/ 3/59 -- careless and reckless driving
11/24/59 -- driving under revocation
11/21/61 -- common assault
10/26/65 -- DWI
5/22/67 -- DWI
2/28/68 -- driving under revocation
1/18/71 -- felony DWI--third offense
Barkwell does not deny making the sworn statements quoted above, nor does he deny that those statements were false. Rather, his defenses in the trial court were and his points on appeal in this court remain: (1) that the false statements were not material, and (2) that the state failed to prove that he knew his testimony to be false at the time he gave it.
When a person files a petition for change of name, as Barkwell did here, the applicable statute and rule makes his reason for the desired change a material matter to be alleged and proved by him. Both Section 527.270 and Rule 95.01 require that the petition be verified by affidavit and set forth "a concise statement of the reason for such desired change." The allegations of paragraph 4 of Barkwell's petition in the change of name proceeding were responsive to that firm requirement.
It appears obvious that the allegation set forth in subparagraphs A through D of that paragraph 4 are interrelated and constitute a single reason. Barkwell was plainly stating that he was being confused in the minds of the public with his two brothers, that this confusion was unfair to him because unlike the brothers, Barkwell himself had "no criminal record," was of "high moral character" and was "undeserving of the ridicule and contempt to which he has been subjected."
By those statements and his supporting testimony in open court, Barkwell was attempting to picture his brothers as black sheep of the family, and himself in contrast as faultless and the innocent victim of a family name which the brothers had besmirched. Yet, those statements and testimony undertaking to distinguish himself from his brothers were blatantly false. Although his brothers may have had records of criminal convictions, so did he. Thus, Barkwell plainly lied and perjured himself as to a matter of fact which was made by statute and court rule of central importance to the change of name proceeding.
It is true that Barkwell also gave another reason for desiring a change of name, that being that he was being confused with two bail bondsmen in Boone County named Barkwell, which caused Charles Barkwell (the petitioner) to be awakened and bothered needlessly by telephone calls. However that alleged additional reason and Barkwell's testimony in support thereof does not render immaterial the false testimony given by him to the effect that he had no criminal record. His false testimony in that regard remains material for two separate independent reasons.
In the first place, false testimony as to one point is material and can be the subject of perjury even though that testimony may not have been necessary to the result and although that result could have been obtained even without the false testimony. 70 C.J.S. Perjury § 11 p. 467. As stated in State v. Swisher, 364 Mo. 157, 260 S.W.2d 6 (banc 1953), quoted from State v. Brinkley, 354 Mo. 337, 189 S.W.2d 314 (1945), the (Emphasis added). This point is well illustrated by Harris v. Quincy, O & K.C.R. Co., 172 Mo.App. 261, 157 S.W. 893 (1913), a situation analogous to the one at bar. In Harris, plaintiff's father filed a suit against the defendant railroad for damage to livestock. In his petition, he advanced two alternative theories of recovery, and at trial plaintiff testified falsely in support of one of those theories. Defendant railroad then instituted an unsuccessful perjury suit because of that false testimony. Plaintiff subsequently countered with a suit for malicious prosecution, arguing that defendant railroad did not have probable cause to believe that he had testified falsely as to a material fact since his father was entitled to recover on the alternative theory. In rejecting that argument, the court stated:
"It can make no difference that Warren Harris was entitled to recover on the other ground; he was trying to recover on each and both of the issues tendered in the petition, and, since the testimony of plaintiff was material to one of them, it was material to the case within the meaning of the statutory definition of perjury."
The second reason why Barkwell's false testimony remains material is that the truth with respect to his prior criminal convictions would have been pertinent impeachment to his testimony concerning the alleged harassment by phone calls intended for the two bondsmen. Missouri law is well established that a false denial of prior convictions is material on the issue of credibility and therefore can serve as a basis for a perjury conviction. State v. Swisher, supra; State v. Moran, 216 Mo. 550, 115 S.W. 1126 (1909). The trial judge (who was the same one who presided over the change of name proceeding) was therefore quite correct in holding: "In the change of name proceeding, the questions as to prior convictions having been asked and false answers given, the trier of fact was deprived of material information in judging the credibility of the witness and hence the validity of any or all of the reasons given for the requested change of name."
Notwithstanding all of the foregoing, Barkwell argues that nothing stated by him by way of reasons for wanting a change of name was material, and in support of that contention he relies upon Matter of Natale, 527 S.W.2d 402 (Mo.App.1975). That case is readily distinguishable. In Natale, the petitioner gave a truthful reason for change of name, and the truthfulness of that reason was in no way in doubt. The only question in the...
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