State v. Gibson
| Decision Date | 06 July 1976 |
| Docket Number | No. KCD,KCD |
| Citation | 538 S.W.2d 956 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Vert Roscoe GIBSON, Defendant-Appellant. 27870. |
| Court | Missouri Court of Appeals |
Robert L. Wehrman, Shapiro, Polsinelli, Schulte, Wehrman & Welte, Kansas City, for defendant-appellant.
John C. Danforth, Atty. Gen., Nanette Laughrey, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Before DIXON, P.J., PRITCHARD, C.J., and WASSERSTROM, J.
Defendant, Vert Roscoe Gibson, was charged with having committed perjury in violation of Section 557.010 RSMo 1969. Gibson was tried before a jury, found guilty, and sentenced to seven years. On this appeal, defendant contends that the State failed to make a submissible case under the quantitative evidence rule applicable in prosecutions for perjury.
The perjury charge arises out of a conflict between the defendant's testimony at the trial of an alleged accomplice, one Graves, when Gibson testified that Graves was not involved in the commission of the initial crime of stealing over $50 from a Safeway super market. This testimny directly and specifically conflicted with the defendant Gibson's testimony under oath at his guilty plea proceedings to stealing over $50 from the Safeway store. In the course of those plea proceedings, Gibson clearly and unequivocally testified that Graves was in fact involved in the theft from the Safeway store and that they were acting in concert in committing that crime. At the perjury trial, the State offered the testimony of a security officer of the Safeway store. He testified that Gibson and Graves entered the Safeway store together and that the defendant then filled a basket with groceries, and Graves returned and attempted to assist him in getting the basket of groceries out of the store without paying for them. The testimony clearly indicated the collaboration of the defendant Gibson and Graves in attempting the theft. Graves was apprehended outside the store with the groceries transferred to him by Gibson, while Gibson was apprehended inside the store. The State also offered as a part of its case the sworn testimony of the defendant Gibson at his guilty plea.
Against this background, the defendant's contention is that the quantitative evidence role was not satisfied since the State produced only the security officer as a witness to contradict the testimony of Gibson at Graves' trial and that his testimony was not corroborated so there was insufficient evidence under the rule peculiar to perjury prosecutions to make out a submissible case.
The quantitative evidence rule, peculiar to perjury prosecutions, is that the uncorroborated oath of one witness is not enough to establish the falsity of the testimony which is relied upon as furnishing the basis for perjury. The rule is established in the law of this State. State v. Burgess, 457 S.W.2d 680 (Mo. banc 1970); State v. Cusumano, 372 S.W.2d 860 (Mo.1963); State v. Heed, 57 Mo. 252 (1874); State v. McGee, 341 Mo. 151, 106 S.W.2d 480 (1937).
This rule is most clearly set forth in State v. Heed, 57 Mo. 252, 254 (1874):
"In proof of the crime of perjury also it was formerly held that two witnesses were necessary, because otherwise there would be nothing more than the oath of one man against another, upon which the jury could not safely convict.' But this strictness has long since been relaxed; the true principle of the law being merely this, that the evidence must be something more than sufficient to counter-balance the oath of the prisoner and the legal presumption of his innocence. The oath of the oppposing witness therefore, will not avail, unless it be corroborated by other independent circumstances. But it is not precisely accurate to say that these additional circumstances must be tantamount to another witness. The same effect being given to the oath of the prisoner as though it were the oath of a credible witness, the scale of evidence is exactly balanced, and the equilibrium must be destroyed by material and independent circumstances, before the party can be convicted. The additional evidence need not be such as standing by itself, would justify a conviction in a case where the testimony of a single witness would suffice for that purpose; but it must be at least strongly corroborative of the testimony of the accusing witness; . . .'
The entire thrust of defendant's argument, that the quantum of evidence to sustain a conviction for perjury is not present, is based upon the contention that the defendant's under-oath testimony at his plea proceedings cannot be used as corroborating evidence of perjury. Defendant argues that when that testimony is excluded the State is left with the uncorroborated evidence of the security officer as against the allegedly false testimony of Gibson offered at Graves' trial. Making this contention, the defendant relies upon State v. Hardiman, 277 Mo. 229, 209 S.W. 879 (1919). There is language in State v. Hardiman which would seem to support the position contended for by the defendant in this case. The broad language of Hardiman suggesting that corroborating evidence means evidence...
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State v. Fletcher
...be a burglary and not simply a quest to move furniture. The present case is closely analogous to the perjury committed in State v. Gibson, 538 S.W.2d 956 (Mo.App.1976). Similar to Ms. Fletcher, the defendant in Gibson was charged with perjury arising from testimony he gave at his accomplice......