State v. Fannon

• Decision Date: 12 November 1900
• Citation: 158 Mo. 149,59 S.W. 75
• Parties: STATE v. FANNON.
• Court: Missouri Supreme Court

59 S.W. 75

158 Mo. 149

STATE v. FANNON.

Supreme Court of Missouri, Division No. 2.

November 12, 1900.

PERJURY — EVIDENCE OF VALUE — SUBMISSION OF MATERIALITY OF EVIDENCE — INSTRUCTIONS — ERASURE — REASONABLE DOUBT — EXCLUDING WITNESSES — ADMISSIBILITY — EVIDENCE — CREDIBILITY — REFRESHING MEMORY OF WITNESS — LEADING QUESTIONS.

1. It is error, in a prosecution for perjury, to submit to the jury the question of the materiality of the alleged false testimony with which the defendant is charged.

2. It is not error, in a prosecution for perjury, to erase part of an instruction offered by the defendant and to give the part remaining, where the erasure does not change the meaning of the instruction.

3. It is error, in a prosecution for perjury, to refuse to instruct that the defendant should be acquitted in case there is reasonable doubt of his guilt, though the instructions given define reasonable doubt.

4. Where an order excluding witnesses was made in a prosecution for perjury, but a witness offered by defendant was in the court room during a part of the trial, but without the knowledge of the defendant or his attorney, and a witness of the state had been recalled after having been allowed to remain in the court room, it was error to reject such offered testimony.

5. Where the defendant in a prosecution for perjury is indicted for swearing falsely on the trial of a case, it is error to admit an affidavit attached to a pleading in such case, since he is not indicted for making a false affidavit.

6. Where the defendant in a prosecution for perjury is indicted for false testimony in a case, it is error to admit an unsigned affidavit attached to the pleading in such case which did not purport to have been made by the defendant.

7. Where the value of certain wood is in issue in a prosecution for perjury, it is error to permit a witness, who does not know the market value of such wood, to testify to the value thereof.

8. Evidence that defendant swore that certain wood was worth 25 cents a load, and that the wood was not worth so much, does not show that the defendant was guilty of perjury.

9. Where the defendant in a prosecution for perjury is alleged to have sworn falsely as to the value of certain wood, evidence that the wood was only worth five or six cents a wagon load should not be credited.

10. It is error, in a prosecution for perjury alleged to have occurred in the trial before a

justice of the peace, to permit the justice to refresh his memory and swear by an exhibit filed by the defendant in the case before the justice.

11. Leading questions should not be asked of a willing witness in a criminal case.

Appeal from circuit court, Maries county; T. B. Robinson, Judge.

James S. Fannon was indicted for the crime of perjury, and from a judgment of conviction, and from an order refusing a motion for a new trial, and an order refusing a motion in arrest of judgment, he appeals. Reversed.

Joseph J. Crites, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

GANTT, P. J.

The defendant was indicted for perjury in the circuit court of Maries county. He was duly arraigned, pleaded not guilty, and was convicted. He appeals to this court.

The indictment is sufficient under the statute of this state, and it is not necessary to set it out for the purposes of this decision. In substance it charged that defendant corruptly and falsely swore that one John E. Love had bought and received from defendant 120 loads of juggles at 25 cents per load during the years 1891, 1892, 1893, 1894, 1895, and 1896, whereas said Love did not buy said juggles at said price. The evidence tended to prove that juggles consisted of timber wasted in making railroad ties. Defendant was engaged in the tie business, and the evidence tended to show that Love sent his wagons at various and sundry times during the years mentioned to the tie camp of defendant, and hauled away these juggles for firewood; that they were taken without any one keeping the account, and often when defendant was not present. Defendant was sued by Love before a justice of the peace on a small note for $13.50, and pleaded as a set-off or counterclaim the indebtedness of Love to him for the price of the juggles, which he stated amounted to 120 loads at 25 cents a load. The testimony of the justice of the peace and Love's attorney was to the effect that defendant swore to his counterclaim, and it was this testimony which was averred to be willfully and corruptly false. Numerous errors are assigned for reversal of the judgment.

1. The instructions are challenged first because the court submitted to the jury the materiality of defendant's evidence to the issue on trial before the justice. Each of the first four instructions given by the court in behalf of the state left it to the jury to determine whether the alleged false evidence of defendant in the justice's court was material to the question to be determined by the jury in the justice's court. It was decided by this court, in an opinion by Judge Scott, in State v. Williams, 30 Mo. 364, that "the court, and not the jury, must determine whether the fact sworn to was material in the judicial proceeding in which the perjury...