State v. Day

• Citation: 12 S.W. 365,100 Mo. 242
• Parties: STATE v. DAY.
• Decision Date: 18 November 1889
• Court: United States State Supreme Court of Missouri

12 S.W. 365

100 Mo. 242

STATE v. DAY.

Supreme Court of Missouri.

November 18, 1889.

PERJURY — INDICTMENT — INSTRUCTIONS — EVIDENCE.

1. On a prosecution for perjury by one who swore on a trial for rape that he witnessed the act, and that the prosecutrix voluntarily yielded, it appeared that the prosecutrix was examined by physicians, at the instance of her father, to determine whether she had been in the habit of having sexual intercourse. Held, that evidence that the prosecutrix appeared to understand the nature of the examination, and that she made no objection, was objectionable as hearsay.

2. The indictment charged that defendant swore that he was on the road; that M. asked him to wait and see what took place; that M. then made indecent proposals to the prosecutrix in the rape case; that she objected, and said, if he would go home with her, she would consent; and that they then had sexual intercourse, — each of which statements the indictment alleged to be untrue, etc. Held, that an instruction that if an assault was committed, and defendant swore an assault was not committed, yet he could not be convicted, unless defendant also swore to every fact as alleged, was properly refused, as requiring the state to prove too much.

3. Under Rev. St. Mo. 1879, § 1418, providing that "every person who shall willfully and corruptly swear," etc., the omission of the word "willfully" is fatal to an indictment.

4. The question whether certain fugitives from justice could probably be obtained as witnesses in a criminal case by the next term of court rests in the sound discretion of the trial court, and, unless an abuse of discretion is shown, a refusal to grant a continuance to procure such witnesses will not be disturbed.

5. Where defendant in a criminal case is a witness, evidence as to his general reputation or character for morality is admissible.

6. Instructions to which no exceptions are saved will not be reviewed in a criminal case.

BARCLAY, J., dissenting.

Appeal from circuit court, Cedar county; CHARLES G. BURTON, Judge.

The indictment upon which the defendant was convicted, omitting immaterial portions, was as follows: That it then and there became and was a material question whether the said James Messick had assaulted said Margaret A. Lusk with intent her to rape and carnally know. That the said Frank Day, then and there in the trial of said issue upon said preliminary examination, upon his oath aforesaid, feloniously, corruptly, and falsely, before the justice of the peace aforesaid, did depose and swear in substance, and to the effect following, that is to say: "That the said Frank Day was on the road on the 2d day of May, A. D. 1885, [meaning thereby that he, the said Frank Day, was on the road near the place of the alleged assault at the time thereof.] That Jim Messick told me at that time to wait, and I could see a circus. That Jim asked her to do it, and she objected, and said if he would go home with her he might have it, [meaning thereby that he, the said James Messick, asked the said Margaret A. Lusk to have sexual intercourse with him, and she then objected, and that she, the said Margaret A. Lusk, told James Messick that if he would go home with her she would have sexual intercourse with him.] That they laid down and done it, [meaning thereby that James Messick and Margaret A. Lusk then and there had sexual intercourse with each other, and that the same was done with the voluntary consent and free will of said Margaret A. Lusk, and that the said James Messick did not try to have sexual intercourse with the said Margaret A. Lusk forcibly and against her will.]" "Whereas, in truth and in fact, the said Frank Day was not on the road on said 2d day of May, A. D. 1885, at or near the place of the alleged assault, at the time thereof, but, on the contrary, was not present nor in sight of said place; (2) and whereas, in truth, and in fact, the said James Messick did not tell him, the said Frank Day, `to wait, and I could see a circus,' but, on the contrary, no such conversation was had then and there by and between the said James Messick and the said Frank Day; (3) and whereas, in truth and in fact, the said `Margaret A. Lusk did not say that if he would go home with her he might have it,' but, on the contrary, no such thing was said by her; and whereas, in truth and in fact, they `did not lay down and do it,' that is to say, have sexual intercourse with each other, but, on the contrary, the said Margaret A. Lusk did not then and there have sexual intercourse with the said James Messick, but refused so to do, and the said James Messick then and there forcibly, and against her will, tried to drag her into the brush, and throw her down, and have sexual intercourse with her, but did not succeed in doing so.' And so the jurors aforesaid," etc. The court refused to instruct the jury on behalf of defendant as follows: "The court instructs the jury that, even though they may believe from the evidence that on the 2d day of May, 1885, James Messick assaulted Margaret Lusk with intent to commit a rape upon her, and that, at the time and place mentioned in the indictment, the defendant testified as a witness, and swore that the said James Messick did not make any such assault, and though they may believe from the evidence that such evidence was untrue, yet they cannot convict the defendant unless they further believe from the evidence that the defendant also, at the same time, testified that he was on the road on the 2d day of May, 1885, and that James Messick asked her to do it, and she objected, and said if he would go home with her he might have it, and that they laid down and done it, (meaning thereby that they had sexual intercourse with one another,) and that the said testimony was also untrue." And to such refusal the defendant excepted. And the court also refused to continue the cause till the next term for reasons hereafter given.

Buller & Loy, for appellant. The Attorney General, for the State.

SHERWOOD, J., (after stating the facts as above.)

1. The indictment was based upon section 1418, Rev. St. 1879, which declares that "every person who shall willfully and corruptly swear," etc. The word "willfully" was omitted from the indictment, and this renders it bad, under the following authorities: Lembro v. Hamper, Cro. Eliz. 147; Anon., Id. 201; 2 Chit. Crim. Law, 312, 315, 316; 1 Chit. Crim. Law, 241; 2 Whart. Crim. Law, §§ 1245, 1286; Whart. Crim. Pl. (9th Ed.) §§ 235, 264, 269; State v. Carland, 3 Dev. 114; State v. Davis, 84 N. C. 787; State v. Webb, 41 Tex. 67; State v. Delue, 1 Chand. 166; Juaraqui v. State, 28 Tex. 626; 1 Archb. Crim. Pr. & Pl. 286; 2 Bish. Crim. Law, § 1046, and cases cited; State v. Morse, 1 G. Greene, 503. And the concluding words of the indictment did not remedy the defect aforesaid. State v. Herrell, 97 Mo. 105, 10 S. W. Rep. 387; 5 Bac. Abr. p. 90, (H,) tit. "Indictment;" 3 Russ. Crimes, 36; King v. Lara, 2 Leach, 647; 2 Hawk. P. C. c. 25, § 110, p. 354.

2. It is insisted there was error in refusing to grant a continuance. At a previous term there had been a mistrial, at which time, under the practice then prevailing, an affidavit for continuance was filed, and read in evidence, which affidavit was based upon the absence of Evans and Messick, the latter of...