State v. Blize

• Decision Date: 20 September 1892
• Citation: 20 S.W. 210,111 Mo. 464
• Parties: The State v. Blize, Appellant
• Court: Missouri Supreme Court

20 S.W. 210

111 Mo. 464

The State v. Blize, Appellant

Supreme Court of Missouri, Second Division

September 20, 1892

Appeal from Miller Circuit Court. -- Hon. E. L. Edwards, Judge.

Reversed and remanded.

W. S Pope for appellant.

(1) The court erred in admission of evidence in behalf of the state. The evidence that defendant had on the preliminary examination of Knatzer made a different statement from that made on the latter's trial was not sufficient corroboration to convict. Schulter v. Ins. Co., 62 Mo. 239; 2 Wharton's Criminal Law [9 Ed.] sec. 1317; 2 Bishop on Criminal Law [7 Ed.] secs. 931, 1045. (2) Where one is charged with swearing falsely as to character, the strictest rules as to the introduction of evidence must be observed. 2 Wharton on Criminal Law, sec. 1283; State v Frisby, 90 Mo. 530. (3) The evidence does not sustain the charges of perjury in the indictment. 2 Wharton on Criminal Law [9 Ed.] sec. 1305; 61 Cal. 536; 20 Iowa 586. (3) The court committed material error in giving and refusing instructions. (4) The indictment is insufficient, and the motion in arrest should have been sustained. State v Day, 100 Mo. 242. The indictment is bad for the reason that it avers that the material question was as to the character of Ruah L. Smith at and prior to May 10, 1886, and the averment is that the testimony was as to her character before May, 1886. State v. Hamilton, 65 Mo. 667. Dates must be correctly stated. It is bad for the reason that it does not pretend to set out the language used by defendant in his testimony, said to be false. Only the inference from the language used by him is stated. State v. Keel, 54 Mo. 182; State v. Holden, 48 Mo. 93; State v. Bailey, 34 Mo. 350.

John M. Wood, Attorney General, for the State.

OPINION

Macfarlane, J.

Defendant was convicted of perjury, and from the sentence appeals to this court. He was accused under the indictment, in substance, with swearing falsely in the trial of one James B. Knatzer under an indictment in which he was charged with having seduced, under promise of marriage, one Ruah L. Smith who was an unmarried female of good repute and under twenty-one years of age.

The indictment further charged, in substance, that defendant, at said trial, appeared as a witness in behalf of said Knatzer, and being duly sworn by the clerk of the court, and "being so sworn as aforesaid, wickedly contriving and intending to cause the said James R. Knatzer unjustly to be acquitted of said felony, did then and there feloniously, knowingly, falsely, corruptly, wilfully and wickedly say, depose and give in evidence to the jurors of the jury then and there duly taken and sworn between the state and the said James R. Knatzer, before the said Honorable E. L. Edwards, judge of said court, that the said John Blize knew the general reputation of the said Ruah L. Smith, in the community and among her associates, for virtue and chastity before May, 1886, and that the same was bad, and that said John Blize did then and there feloniously, knowingly, falsely, corruptly and wickedly say, depose and give in evidence to said jurors on said trial before said court that he, the said John Blize, had had sexual connection and intercourse with her, the said Ruah L. Smith, before May, 1886, whereas in truth and in fact the said John Blize did not know the general reputation of the said Ruah L. Smith, before May, 1886, for virtue and chastity to be bad, and whereas in truth and in fact the said John Blize did not and had not before May, 1886, or at any other time, had sexual connection and intercourse with the said Ruah L. Smith, as by him so sworn and testified to in said court."

Defendant did not deny, indeed he admitted when examined as a witness, that he did testify on the trial of Knatzer that he knew the reputation of the complaining witness, Ruah L. Smith, for virtue and chastity, prior to the alleged seduction, and that it was bad, and that he himself had, previous thereto, had sexual intercourse with her.

The issue then upon the trial was whether the testimony, so given, was false as charged. Ruah L. Smith testified that defendant never had intercourse with her, and defendant testified that he had, and that his evidence in the Knatzer trial was true. To corroborate the testimony of Ruah L. Smith, several witnesses were called who testified that defendant was a witness before a justice of the peace in the preliminary examination of the said Knatzer for the alleged seduction, and then testified that he had never had sexual intercourse with her. Defendant denied that he so testified on the preliminary examination, and a number of witnesses who were present testified that they heard no such testimony. Witnesses were also called to prove that, on such preliminary examination, defendant also testified that he knew the reputation of the said Ruah, for virtue and chastity, and that it was good. An examination of the evidence on this point satisfies us that the testimony of these witnesses went no further than to tend to prove that defendant swore on preliminary examination that the said Ruah, prior to her alleged seduction, was "a little fast," and that he knew nothing against her. None of them go so far as to say that he testified that he knew her reputation was bad.

The court gave the following with other instructions: "3. If the jury believe and are satisfied beyond a reasonable doubt that the defendant, in the trial of the cause of the state against James R. Knatzer, wilfully, corruptly and falsely testified that he knew the general reputation of Ruah L. Smith for virtue and chastity in the community and among her associates, before May, 1886, and that the same was bad, and that he, the said John Blize, defendant, had had sexual intercourse with her, the said Ruah L. Smith, before May, 1886, then the jury will find the defendant guilty, as charged in the indictment, and assess his punishment at imprisonment in the penitentiary for a period of not less than seven years.

"4. To authorize the jury to find the defendant guilty, you must believe and find from the evidence that the falsity of the statements, upon which, by the indictments, under the instructions, the charge against him is based, has been established to your satisfaction, either by the testimony of more than one credible witness, or that one of such witnesses, corroborated by other evidence in the cause, which convinces your minds of the truth of the testimony of such single witness to the fact, and of the falsity of the statement; and you must further find from the evidence the existence of all the other elements of the offense and of the facts necessary to authorize his conviction, as hereinbefore set forth and as charged in the indictment. And the jury are further instructed that the question as to the general reputation of the said Ruah L. Smith for virtue and chastity, and that as to whether she had or had not, prior to the alleged seduction, had sexual connection or intercourse with the said John Blize, or any other man, were material questions on the trial of the said James R. Knatzer for her seduction, as to whether she was a female of good repute; and if said defendant, John Blize, wilfully, corruptly and knowingly swore falsely as to such reputation, as charged in the indictment, then it is your duty to find the defendant guilty of perjury, as he stands charged."

Defendant requested, and the court refused to give, the following instruction: "3. The court instructs the jury that it devolves upon the state to prove the defendant guilty by at least two credible witnesses, or in addition to one credible witness such a state of circumstances as, taken together, would be equal to the testimony of two credible persons."

I. It is insisted by defendant as ground for the reversal of the judgment, that the evidence of the prosecuting...