State v. Hamilton

• Decision Date: 30 April 1842
• Citation: 7 Mo. 300
• Parties: STATE v. HAMILTON.
• Court: Missouri Supreme Court

7 Mo. 300

STATE

v.HAMILTON.

Supreme Court of Missouri.

April Term, 1842.

ERROR TO THE CIRCUIT COURT OF PLATTE COUNTY.

BURNETT & JONES, for State.

DONIPHAN, for Defendant.

NAPTON, J.

This was an indictment for perjury. The indictment charged, that on, & c., at, &c., before one William Bauta a justice of the peace within and for the county aforesaid, a certain cause between one Thode, Adm'r, &c., and one David Hamilton, in which cause the said Thode was plaintiff, and said Hamilton defendant, came on to be tried in due form of law, and was then and there, to-wit, &c., tried by said justice, &c. And upon the trial of said cause, the said David Hamilton, then and there appeared as a witness, and was then and there duly sworn, &c., in the usual form. The indictment further averred, that upon this trial, it became a material question whether the said Thomas Young, in his life-time, had sold and delivered to said David Hamilton, a certain barrel of whisky, at, and for the price of seventeen dollars and fifty cents; and whether the said Young had sold and delivered, in his life-time, a barrel of whisky, at, and for any price whatsoever. And thereupon, the said Hamilton, being so sworn as aforesaid, &c., devising, &c., on the trial, &c., did testify, &c., that the said Thomas Young, deceased, in his life-time, had not sold and delivered to him, the said Hamilton, the said barrel of whisky, at, and for the said price of fifteen dollars, nor at any price whatsoever: whereas, in truth, and in fact, the said Young, in his life-time, did sell, and deliver to the said Hamilton, the said barrel of whisky, at, and for said price of fifteen dollars, and so the jurors aforesaid, &c. the defendant demurred to this indictment, and the court sustained the demurrer; and the only question is, whether the demurrer was properly sustained.

In the first count of the indictment, it was averred, that the defendant was sworn as a witness on behalf of himself; this was omitted, however, in the second count, and it was simply stated that defendant was sworn as a witness, without specifying on whose behalf, or at whose instance the oath was taken. As it was the duty of the court to overrule the demurrer, if either count in the indictment were good, it is unnecessary to inquire, whether the statement that the witness testified on behalf of himself, was improperly made or not. Both counts were objectionable in this, that there was no averment that the witness was sworn under circumstances...