State v. Higgins
Decision Date | 20 November 1894 |
Parties | STATE v. HIGGINS. |
Court | Missouri Supreme Court |
1. On trial for perjury committed on trial of defendant for assault, testimony showing that, after the assault, defendant's son had said, and the reply of defendant's wife thereto, is admissible, though the son was not a witness, to contradict the testimony of the wife that no such conversation took place.
2. Error in the admission of testimony is not available on appeal unless on objection made and exception taken.
3. Where defendant's counsel admitted that the docket of the justice before whom defendant was tried showed that a cause was pending against defendant for assault, and that defendant was a witness therein, the court will take judicial notice that justices of the peace had jurisdiction in such cases.
4. An indictment for perjury charged defendant with having willfully, etc., testified, on trial for assault, that the person alleged to have been assaulted was not on defendant's premises on the day of the assault. The court charged that if defendant falsely testified that, if such person was at his house on that day, he (the defendant) did not know it, defendant was guilty. Held, that there was no variance, since the same proof would be necessary in either case.
5. A charge that defendant was guilty if his testimony was "false and untrue," without stating that it must be found that he "willfully and corruptly testified falsely," is erroneous.
Appeal from circuit court, Mercer county; Paris C. Stepp, Judge.
James J. Higgins was convicted of perjury, and appeals. Reversed.
Bolster & Steckman and H. J. Alley, for appellant. R. F. Walker, Atty. Gen., for the State.
The defendant was convicted at the September term, 1893, of the circuit court of Mercer county, on an indictment charging him with the crime of perjury, and his punishment assessed at two years' imprisonment in the penitentiary. From the judgment and sentence he appeals.
The indictment, leaving out the formal parts, is as follows:
The evidence shows: That the D. W. Ragan mentioned in the indictment was assessor of Marion township, in Mercer county. That on October 28, 1891, he went to the house where defendant resided for the purpose of assessing his property, when he (defendant) assaulted him with a hatchet, and ordered him to leave the premises. Ragan then had him arrested for assault before P. C. Hampton, a justice of the peace, and, upon the trial before said justice, defendant testified that he had not assaulted Ragan; that Ragan had not been to his house or on his premises at the time charged; and that, if he had, he had not seen him. On the trial, the wife of the defendant (Mrs. Higgins) was sworn as a witness in his behalf, and upon her cross-examination testified as follows: The state subsequently called Mrs....
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