State v. Coyne

• Decision Date: 28 July 1908
• Citation: 214 Mo. 344,114 S.W. 8
• Parties: STATE v. COYNE.
• Court: Missouri Supreme Court

114 S.W. 8

214 Mo. 344

STATE v. COYNE.

Supreme Court of Missouri, Division No. 2.

July 28, 1908.

1. PERJURY (§ 26) — INDICTMENT — ASSIGNMENT OF PERJURY—PURPOSE.

The object of an assignment of perjury in an indictment is to falsify by averments those parts of accused's statements on oath which are intended to charge him on the trial with having committed the offense.

2. PERJURY (§ 26)—INDICTMENT—SUFFICIENCY.

Since an indictment for perjury should charge that accused did not "believe" what he swore to, where he testified only to his belief, an indictment charging that accused falsely swore that he did not "believe" that he had ever approached a particular person and made a corrupt proposition to him, and that he did not "recall" that he had ever approached any person, etc., whereas he "did" approach, etc., as he then and there well knew, is insufficient.

3. PERJURY (§ 26) — INDICTMENT — COMMON LAW—MODIFICATION.

The common law has not been modified in Missouri as to assignments of an indictment for perjury wherein knowledge is of the essence of the crime.

4. CRIMINAL LAW (§ 1032)—APPEAL—OBJECTIONS PROPER ON APPEAL—SUFFICIENCY OF INDICTMENT.

An indictment may be assailed for the first time on appeal for failing to state facts constituting a crime, the defect being apparent upon the face of the record.

5. PERJURY (§ 32) — EVIDENCE — ACCUSED'S MENTAL CONDITION.

One accused of falsely testifying to a belief can show that down to date recently before the alleged offense he apparently stood on the brink of paresis, and that his memory was wholly unreliable.

6. WORDS AND PHRASES—"MEMORY."

"Memory" is the power of retaining knowledge in the mind.

Appeal from St. Louis Circuit Court; George H. Williams, Judge.

William R. Coyne was convicted of perjury, and he appeals. Reversed and remanded.

Chester H. Krum, Thos. J. Rowe, and Horace L. Dyer, for appellant. Herbert S. Hadley, Atty. Gen., John Kennist, Asst. Atty. Gen., and Arthur N. Sager, Circuit Atty. (C. Orrick Bishop, of counsel), for the State.

GANTT, J.

At the December term, 1907, of the circuit court of the city of St. Louis, the defendant, William R. Coyne, was indicted by the grand jury for perjury. He was tried and convicted, and his punishment assessed at two years in the penitentiary. After ineffectual motions for new trial and in arrest of judgment, he was sentenced in accordance with the verdict, and from that judgment he has appealed to this court. Omitting the formal parts, the indictment is as follows:

"That a certain investigation and inquiry was then and there pending before said grand jury into all crimes and felonies committed and triable within the said city of St. Louis, and more particularly certain offenses of bribery and solicitation of bribes, and conspiracy to solicit, accept, and receive bribes, alleged to have been committed by certain members of the house of delegates of the municipal assembly of the city of St. Louis, and particularly one Ferd Warner and one Frederick W. Priesmeyer, who were then and there members of the said house of delegates of the municipal assembly, and public officers of the city of St. Louis, in connection with certain bills, ordinances, and measures which were or had been pending in said house of delegates by which it was proposed by the city of St. Louis to give and grant certain rights, privileges, and franchises to sundry and divers persons and corporations in said city of St. Louis.

"That in the course of said inquiry and investigation in the city of St. Louis, and on or about the 28th day of October in the year one thousand nine hundred and seven, one William R. Coyne was duly summoned as a witness, and did then and there personally appear as a witness before the said grand jury in regard to the said inquiry and investigation then and there pending; that the said William Coyne was then and there duly sworn by the foreman of said grand jury, and took upon himself his corporal oath; the said foreman, to wit, one George T. Riddle, being then and there duly and legally authorized and empowered, and having competent authority, to administer the said oath to the said William R. Coyne, and that then and there it became and was important, competent, and material to the investigation and inquiry then and there pending before said grand jury to inquire and ascertain whether he, the said William R. Coyne, had ever approached any person, firm, or corporation in the city of St. Louis and proposed to aid or assist in, procure, and secure the passage of any ordinance, bills, or measures pending in the house of delegates or municipal assembly of the city of St. Louis, in which such persons, firms, or corporations were interested, for a fee or money consideration, and whether he, the said William R. Coyne, had ever represented himself as an agent of the house of delegates of the city of St. Louis, or any member thereof; and then and there he, the said William R. Coyne, upon his said corporal oath and before the said grand jury, did feloniously, falsely, corruptly, knowingly, and willfully depose and swear in substance to the effect following:

"That he, the said William R. Coyne, did not believe that he, the said William R. Coyne, had ever at any time approached any person, firm, or corporation interested in the passage of any ordinance by the municipal assembly of the city of St. Louis and proposed to them, or either of them, to assist in the passage of such ordinance for a money consideration; that he, the said William R. Coyne, did not remember that he, the said William R. Coyne, had ever at any time represented himself as an agent of the house of delegates of the city of St. Louis, or of any member thereof; that he, the said William R. Coyne, did not think that he, the said William R. Coyne, had ever approached one Henry Ascher or any other person and proposed to him or them, or either of them, that he, the said William R. Coyne, would aid or assist in the passage of any ordinance pending in the house of delegates in the city of St. Louis, if he, the said William R. Coyne, was given a fee; that he, the said William R. Coyne, did not remember whether he, the said William R. Coyne, had ever approached one Henry Ascher, or any other person, in the city of St. Louis, and proposed that for a money consideration he, the said William R. Coyne, would aid in and attempt to pass any ordinance pending before the house of delegates in the city of St. Louis; that he, the said William R. Coyne, did not recall that he, the said William R. Coyne, had ever at any time gone to any person or the representative of any firm or corporation in the city of St. Louis with the specific purpose of securing employment with reference to the passage of some ordinance pending in said house of delegates in which such persons were interested; Whereas, in truth and in fact, he, the said William R. Coyne, in the city of St. Louis, and on or about the fifth day of September, A. D. 1907, visited one Henry Ascher and stated to said Henry Ascher that he (the said Coyne) had been sent to said Henry Ascher by one Ferd Warner (who was then and there a member of the said house of delegates) to confer with said Ascher about and concerning a certain ordinance then and there pending in said house of delegates wherein it was proposed to grant to said Ascher the right and privilege of erecting and maintaining an automobile garage, and he, the said William R. Coyne, did then and there propose to the said Ascher that he employ him (the said Coyne) and pay him a fee of one thousand dollars to aid and assist in the passage of said bill or ordinance then pending in said house of delegates, as he, the said William R. Coyne, then and there well knew.

"And whereas, in truth and fact, he, the said William R. Coyne, in the city of St. Louis, and on or about the 14th day of September, 1907, visited one Charles C. Higham, the works manager of the American Brake Company, and talked with him about and concerning a certain ordinance then pending in the said house of delegates, whereby it was proposed to grant to the St. Louis Merchants' Bridge Terminal Railway Company the right and privilege to construct, maintain, and operate certain spur tracks to reach the plant of the American Brake Company, and in which said ordinance the said American Brake Company was interested, and stated that it would be necessary for said American Brake Company to pay the sum of one thousand dollars, in order to secure the passage of said ordinance by said house of delegates; and that, unless such sum of one thousand dollars was so paid, said ordinance would not be passed by said house of delegates; and that for a fee of one thousand dollars (to be paid him, Coyne) he would get behind said bill or ordinance then pending in said house of delegates and aid and assist in its passage; as he, the said William R. Coyne, then and there well knew.

"And whereas, in truth and in fact, the said William R. Coyne, in the city of St Louis, and on or about the 28th day of September, 1907, visited one F. C. Bretsnyder, who was then and there the president and manager of the Bell Oil Company, and talked with him about and concerning a certain ordinance then pending in said house of delegates, whereby it was proposed to grant to the Wabash Railroad Company the right and privilege to construct, maintain and operate a switch or side track in said city of St. Louis, and in which said ordinance the said Bell Oil Company was interested, as such proposed side track was to reach the plant of the said Bell Oil Company, and he, the said William Coyne, did then and there propose to the said Bretsnyder that he (the said Coyne) be employed and paid a fee of one thousand dollars to aid and assist in the passage of said bill or ordinance then pending in said house of delegates; as he, the said William R. Coyne, then and there well knew.

"And whereas, in truth and in fact, he, the said William R. Coyne, in said...