State v. Burgess

• Decision Date: 14 September 1970
• Citation: 457 S.W.2d 680
• Court: Missouri Supreme Court

Page 680

457 S.W.2d 680

STATE of Missouri, Respondent v Lewis Lee BURGESS, Appellant.

No. 53955.

Supreme Court of Missouri, En Banc.

Sept, 14, 1970.

John C. Danforth, Atty. Gen., Warren K. Morgens, Asst. Atty. Gen., Jefferson City, for respondent.

Lewis E. Pierce, Robert G. Duncan, Pierce & Duncan, Kansas City, for appellant.

DONNELLY, Judge.

Appellant, Lewis Lee Burgess, was convicted of perjury (§ 557.010, RSMo 1959, V.A.M.S.) in the Circuit Court of Greene County, Missouri, and his punishment, under the provisions of the Habitual Criminal Act (§ 556.280, RSMo 1959, V.A.M.S.), was assessed at imprisonment for a term of three years. Following rendition of judgment and imposition of sentence an appeal was perfected to this Court.

Appellant asserts that the trial court erred 'in failing to instruct the jury that in order to convict(,) the falsity of the alleged testimony must be established by either two witnesses or one witness corroborated by other independent circumstances or evidence.' Appellant did not request such an instruction.

In Missouri the rule is well-established 'that impeachment of the alleged false testimony of an accused in a perjury case must be made by at least two witnesses or one witness and strongly corroborating circumstances.' State v. Brinkley, 354 Mo. 337, 189 S.W.2d 314, 325; State v. McGee, 341 Mo. 151, 106 S.W.2d 480, 111 A.L.R. 821. This is frequently referred to as the 'quantitative evidence rule.' We decline to abandon it. See Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495, 156 A.L.R. 496.

Section 546.070, RSMo 1959, V.A.M.S., reads, in part, as follows:

'* * * (4) Whether requested or not, the court must instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving their verdict; which instructions shall include, whenever necessary, the subjects of good character and reasonable doubt; and a failure to so instruct in cases of felony shall be good cause, when the defendant is found guilty, for setting aside the verdict of the jury and granting a new trial; * * *.' See also S.Ct. Rule 26.02(6), V.A.M.R.

In State v. Chaney, Mo.Sup., 349 S.W.2d 238, a majority of the Court, en Banc, agreed as to the propriety of the following statement from State v. Foster, 355 Mo. 577, 197 S.W.2d 313, 317--318:

'Our statutes divide the instructions in a criminal case into two general classes. The first includes those which Sec. 4070(4) (§ 546.070(4)) mandatorily requires the court to give whether requested or not, 'upon all questions of law arising in the case which are necessary for their (the jury's) information in giving their verdict; which instructions shall include whenever necessary, the subjects of good character and reasonable doubt.' It is held these instructions must cover "all the essential elements of an offense embraced within the charge," or, as put another way, they must declare the law "applicable to every crime, or grade of crime, of which, under the evidence, the jury might convict the accused." Instructions not belonging in that class, such as instructions on evidence and procedure, are called 'collateral,' and fall in the second class. As to them, Sec. 4083 (§ 546.380) provides 'the court may instruct the jury in writing on any point of law arising in the cause.' But the defendant must request or tender instructions of that class, save exceptions and preserve the point in his motion for new trial.'

Therefore, the decisive issue presented is whether the 'quantitative evidence rule' relates to an essential question or to a collateral question.

In State v. Hardiman, 277 Mo. 229, 209 S.W. 879, 880, this Court said:

'The materiality of the alleged false testimony being determined, we are confronted with the question as to the quantum of evidence necessary to a conviction. It is fundamental that to sustain a charge of perjury, it is necessary that there should be some substantial evidence, in addition to the testimony of a single witness. This for the very apparent reason that if the defendant swears to one thing and the witness to the opposite, there is simply one oath against the other, and the jury would in consequence not be warranted in saying that the testimony of the one is false rather than that of the other, without some other proof tending to show which is true and which is false. State v. Thornton, 245 Mo. 436, 150 S.W. 1048; State v. Faulkner, 175 Mo. 546, 75 S.W. 116. It does not necessarily follow, however, that the coroborative testimony must be that of another witness. It may consist of circumstances sufficiently strong to be tantamount to that of another witness' testimony. State v. Heed, 57 Mo. 252; State v. Hunter, 181 Mo. 316, 80 S.W. 955; State v. Blize, 111 Mo. 464, 20 S.W. 210.'

In State v. Carter, 315 Mo. 215, 285 S.W. 971, 942, this Court said:

'The evidence adduced was not sufficient to support the conviction of appellant. It does not appear that there was a third person present who could testify to the acts and statements of Rader, concerning which appellant made...