State v. Gordon

• Decision Date: 22 May 1906
• Citation: 196 Mo. 185,95 S.W. 420
• Parties: STATE v. GORDON.
• Court: Missouri Supreme Court

95 S.W. 420

196 Mo. 185

STATE v. GORDON.

Supreme Court of Missouri, Division No. 2.

May 22, 1906.

1. JUDGES—POWERS AFTER EXPIRATION OF TERM.

Rev. St. 1899, § 8847, provides that all elected officers shall hold their offices until their successors are elected and qualified. Section 2597 provides that where the judge of some other circuit is called in to try a criminal case owing to the disqualification of the regular judge, the former shall possess all the powers and perform all the duties of a circuit judge at a regular term of the court. Held, that where the judge of another circuit was called in to try a criminal case, and there was a verdict of guilty, but judgment was not rendered on the verdict at that time, as required by section 2648, nor sentence passed, as required by section 2658, and subsequently the term of both judges expired, but the special judge succeeded himself, he had authority thereafter to enter a nunc pro tunc entry of judgment and sentence.

2. CRIMINAL LAW — JUDGMENT — CORRECTION OF RECORD.

Where judgment was not rendered on a verdict of conviction at the time, as required Rev. St. 1899, § 2648, nor sentence passed, as required by section 2658, subsequently, notwithstanding that the case was pending in the Supreme Court, the trial court had authority to enter a nunc pro tunc entry of judgment and sentence.

3. JUDGES—POWERS AFTER EXPIRATION OF TERM.

Rev. St. 1899, § 731, provides that in any case where the judge who heard a cause shall go out of office before signing the bill of exceptions, such bill, if agreed to be true by the parties to the action or their attorneys, or shown by the judge to be correct, shall be signed by the succeeding or acting judge of the court where the case was heard. Section 8847 provides that all elected officers shall hold their offices until their successors are elected and qualified, and by section 2597, where in a criminal case the judge is disqualified, the judge of another circuit may be called in, who has all the powers and authority of the regular judge. Held, that where the term of office of the judge of another circuit called in to try a criminal case, and also that of the regular judge, expired after conviction, but the special judge succeeded himself, he had authority thereafter to make extensions of time for the filing of bills of exceptions.

4. PERJURY—INFORMATION—SUFFICIENCY.

Rev. St. 1899, § 2039, provides that in an indictment for perjury it shall be sufficient to set forth the substance of the offense charged, and by what court and before whom the oath was taken, alleging such court or person to have competent authority to administer the same, and that the matter of testimony was material to a certain matter or issue named, together with the proper averments to falsify the matter whereon the perjury is assigned. Held, that an information naming the cause in which the perjury was committed and the court in which the cause was being tried, stating the materiality of the issue, setting out the facts alleged to have been sworn to, negativing their truth, and properly assigning perjury on them, was sufficient.

5. SAME—SETTING FORTH TESTIMONY.

On a prosecution for perjury it was proper to set forth in the same count in the information all of the false statements with which defendant was charged, where they all related to the same transaction.

6. CRIMINAL LAW—APPEAL—PRESUMPTIONS— —FACTS NOT SHOWN BY RECORD.

Where, on appeal from a conviction of perjury, it appeared that defendant had moved to quash the information on the ground that two informations had been filed against him, both charging him with perjury, and that the one forming the basis of the prosecution was the first one filed, but there was nothing in the record to sustain such contention, it will be presumed that the ruling of the trial court in overruling the motion to quash was proper.

7. SAME—RECORD—QUESTIONS REVIEWABLE— CONTINUANCE.

An application for a continuance will not be reviewed on appeal, where the application is not incorporated in the bill of exceptions.

8. SAME—SPECIAL VENIRE.

The order of a special venire on motion of the state will not be reviewed on appeal, where the motion is not embraced in the bill of exceptions.

9. SAME.

Where, on appeal, a motion by the state for a special venire was not incorporated in the bill of exceptions, the overruling of defendant's motion to disqualify the sheriff and to appoint another person in his place to summon the special venire would not be reviewed.

10. SAME — EVIDENCE — ADMISSIBILITY — RES GESTAE.

Where, on a prosecution for perjury, it appeared that defendant testified on a prosecution for murder that a certain person had a pistol in his hands which he attempted to hand or slip to the decedent, it was proper, as part of the res gestæ, to admit evidence tending to show that such person did not try to pass a pistol to decedent.

11. SAME — APPEAL — FAILURE TO PRESENT QUESTION BELOW—INSTRUCTIONS.

An appellant cannot complain on appeal that the instructions did not properly declare all the law in writing to the jury necessary for them to consider in arriving at their verdict, where the court was not requested to further instruct upon the issues, nor its attention called to any failure or omission to properly instruct.

12. PERJURY — INFORMATION — ISSUES AND PROOF.

Where there are several assignments of perjury in an information, each predicated upon material matters different from the other assignments, it is not necessary for a conviction that the state should prove all or any more than one of the charges.

13. CRIMINAL LAW—FAILURE TO INSTRUCT— WITHDRAWAL OF ISSUES—PARTIES ENTITLED TO COMPLAIN.

Where, on a prosecution for perjury, there were several assignments of perjury in the information, defendant could not complain because the court failed to instruct that the jury should not take into consideration a certain assignment, as to which there was no evidence, as the failure to instruct was, in effect, to withdraw that assignment from the consideration of the jury.

Appeal from Circuit Court, St. Francois County; Samuel Davis, Special Judge.

George Gordon was convicted of perjury, and he appeals. Affirmed.

W. S. Anthony, J. N. Burks, and J. A. Abernathy, for appellant. The Attorney General and N. T. Gentry, for the State.

BURGESS, P. J.

The defendant was convicted in the circuit court of St. Francois county, and his punishment fixed at imprisonment in the penitentiary for the term of seven years, under an information filed by the prosecuting attorney of said county in the office of the clerk of said court, charging the defendant with the crime of perjury. In due time defendant filed motions for new trial and in arrest, which were overruled, and he appealed.

The alleged false testimony was given at the trial in the circuit court of St. Francois county in the case of State v. O. P. McCarver, then pending and being tried in said court before Judge Samuel Davis, of the Fifteenth judicial circuit. At the time the information was filed under which defendant was convicted, Hon. Robert A. Anthony was sole judge of the judicial circuit of which St. Francois county formed a part; and at the November term, 1904, of said circuit court, the defendant applied for and was granted a change of the venue of said cause on account of the alleged prejudice of Hon. Robert A. Anthony, the regular judge of that circuit, and he called in Hon. Samuel Davis, judge of the Fifteenth judicial circuit, to try the case. Defendant thereafter applied for a continuance on account of the absence of two witnesses, but his application was refused. A trial was then had, resulting in a conviction of defendant as before stated.

The facts are substantially as follows: On November 16, 1903, the grand jury of St. Francois county preferred an indictment against said O. P. McCarver, charging him with murder in the first degree, in shooting to death, with a pistol, one Harry Lett, in said county, on the 14th day of November, 1903. McCarver applied for and was granted a change of venue from Hon. Robert A. Anthony, the regular judge of said circuit, on account of the alleged prejudice of said Judge Anthony against him, and Hon. Samuel Davis, judge of the Fifteenth judicial circuit, was called in by Judge Anthony to try said case. A trial of said McCarver was had at the February term, 1904, of the circuit court of that county, before Hon. Samuel Davis and a jury. The defendant, Gordon, appeared then and there as a witness, was duly sworn by the deputy clerk of said court, and testified at said trial: That he was in the city of Farmington on the night of the 14th of November, 1903, between 9 and 10 o'clock. That he was standing in front of the saloon run by Bentley & Ryan, in said city. That he saw Leo Lett meet Harry Lett near said saloon. That he heard Harry Lett ask Leo if he got it, and heard Leo Lett reply, "Yes, and a damn good one, too." That he then heard them arrange to go into said saloon together and assault said McCarver, while he and others were standing at the bar drinking. That he (defendant, Gordon) saw Leo Lett and Harry Lett go into said saloon, then saw them through the front glass windows as they walked to the other end of the bar. That he saw Harry Lett standing with his elbow on the bar, and his right hand in his pocket, and saw Leo Lett try to pass or slip a pistol to Harry Lett, just before McCarver fired his pistol. That the curtains of the front windows of said saloon were down, so that he (defendant) could easily see, and did see, the men inside at the time of this difficulty. This testimony of defendant was proved by one of the jurors who tried the McCarver case, and also by the notes of Mr. James J. O'Connor, at that time the official stenographer of that court, and the one who took down the testimony at said McCarver trial. Defendant's said testimony was given in St. Francois county, Mo. The state's evidence further...