State v. Buck

• Decision Date: 19 November 1895
• Citation: 32 S.W. 975,130 Mo. 480
• Parties: The State v. Buck, Appellant
• Court: Missouri Supreme Court

32 S.W. 975

130 Mo. 480

The State v. Buck, Appellant

Supreme Court of Missouri, Second Division

November 19, 1895

Appeal from Ozark Circuit Court. -- Hon. W. N. Evans, Judge.

Affirmed.

Tribble & Love for appellant.

(1) The evidence does not support the allegations of the petition. (2) It was the duty of the trial judge to fully instruct upon what it took to constitute perjury and to have determined as to whether the facts alleged in the indictment as to the assignment of perjury were material or not. It was the province of the court and not the jury to determine the materiality of the facts alleged to have been sworn to. State v. Williams, 30 Mo. 364. (3) The court erred in refusing the instructions asked by defendant. Wharton Crim. Law, sec. 761.

R. F Walker, attorney general, for the state.

(1) The indictment in this case is sufficient. It contains all the necessary elements of the crime of perjury, and notifies the defendant of the character of the charge he is required to meet. R. S. 1889, sec. 3665; State v. Cave, 81 Mo 450; State v. Huckeby, 87 Mo. 414. (2) The instructions were all that could be desired. (3) The defendant has been fairly tried and no error to defendant's prejudice was committed.

OPINION

Sherwood, J.

Convicted of perjury, and his punishment assessed at two years in the penitentiary, defendant appeals to this court. The indictment follows approved forms, and is sufficient.

The evidence, however, though referred to in the bill of exceptions as contained in index sheets marked A and B herewith filed and attached and made a part of this bill of exceptions, constitutes no part of the bill.

Section 2304, Revised Statutes, 1889, provides that: "But it shall not be necessary, for the review of the action of any lower court on appeal or writ of error, that the motion for a new trial, in arrest of judgment, or instructions filed with the lower court, shall be copied or set forth in the bill of exceptions filed in the lower court; provided, the bill of exceptions so filed contains a direction to the clerk to copy the same, and the same are so copied into the record sent up to the appellate court."

Under the old regime, such motions and instructions had to be incorporated in the bill of exceptions, but this statute has worked a change in this regard as therein specified; but that is the extent of the change; the evidence has, as formerly, to be incorporated into the...