State v. Higgins

• Decision Date: 20 November 1894
• Parties: STATE v. HIGGINS.
• Court: Missouri Supreme Court

28 S.W. 178

124 Mo. 640

STATE v. HIGGINS.

Supreme Court of Missouri, Division No. 2.

November 20, 1894.

PERJURY — EVIDENCE — JUDICIAL NOTICE — INSTRUCTIONS.

1. On trial for perjury committed on trial of defendant for assault, testimony showing that, after the assault, defendant's son had said, "T. looked so funny when pa drew the hatchet," 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.

BURGESS, J.

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 grand jurors for the state of Missouri for the body of Mercer county, being duly impaneled, sworn, and charged upon their oaths, present that heretofore, to wit, on the 16th day of November, 1891, at the county of Mercer and state of Missouri, before P. C. Hampton, a duly qualified and acting justice of the peace of said county, a certain action wherein the state of Missouri was plaintiff and James J. Higgins was defendant, on an information of the prosecuting attorney for assault on Daniel W. Ragan, came on to be tried in due form of law, the said justice then and there having competent authority in that behalf; and the said issue was then and there tried by said justice, upon which said trial the said James J. Higgins then and there appeared as a witness in his own behalf, and was then and there duly sworn and took his oath before the said justice — which said oath was then and there administered by the said justice, P. C. Hampton, to the said James J. Higgins, he (the said P. C. Hampton) having full power and competent authority to administer the said oath to the said James J. Higgins in that behalf — that the evidence which he (the said James J. Higgins) should give to the court there, touching the matter then in question in the action aforesaid, should be the truth, the whole truth, and nothing but the truth; and that, at and upon the trial of the said issue so joined in the action aforesaid, it then and there became and was a material question whether the said Daniel W. Ragan had, at any time within one year prior to the filing of the information aforesaid, been at the dwelling and within the dooryard and upon the premises of the said James J. Higgins, in said county; and that the said James J. Higgins then and there, on the trial of said issue, upon his oath aforesaid, feloniously, willfully, corruptly, and falsely, before the court and justice aforesaid, did depose and swear in substance and to the effect following, that is to say: `Daniel W. Ragan was not on my premises. Daniel W. Ragan was not at my dwelling house in said county. Daniel W. Ragan was not within my dooryard in said county. He (meaning Daniel W. Ragan) was not there at all. I never ordered him (meaning Daniel W. Ragan) off my premises. I never drew a hatchet into a striking position, and cursed Daniel W. Ragan, and ordered him to get off my premises, for he (Daniel W. Ragan) was not there at all,' — whereas, in truth and in fact, Daniel W. Ragan was on the premises of the said James J. Higgins in said county, and was at the dwelling house of the said James J. Higgins in said county, and within the dooryard of said James J. Higgins in said county; and whereas, in truth and in fact, the said Daniel W. Ragan was there, and the said James J. Higgins ordered him off his premises; and whereas, in truth and in fact, he (James J. Higgins) did draw a hatchet into a striking position, and curse the said Daniel W. Ragan, and order him to get off his premises (meaning the premises of the said James J. Higgins). And so the jurors aforesaid, upon their oaths aforesaid, do say that the said James J. Higgins, on the said 16th day of November, 1891, at the county aforesaid, before the court and justice aforesaid, upon the trial aforesaid, did, in manner and form aforesaid, feloniously, willfully, corruptly, and falsely commit willful and corrupt perjury, against the peace and dignity of the state."

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: "Q. Mrs. Higgins, do you know Mr. Bixler and Mrs. Bixler? A. Yes, sir. Q. I'll ask you if you remember of them being at your house some time after this, — short time after this trouble occurred, — when there was a conversation about it between you and your oldest boy. A. No, sir; there wasn't any. Q. There wasn't any? A. No, sir. Q. Now, I'll ask you if it is not true, Mrs. Higgins, that Mr. and Mrs. Bixler were at your house some time in December, and you were all talking about the matter, and the oldest boy, your boy Berthel, said this, `Tuck looked so funny when pa drew the hatchet on him,' and if you didn't say, `Jim didn't draw the hatchet. He just had it in him hand, and told Mr., — told Tuck to get.' A. Why, the children were at school. Q. No; I asked you if such conversation didn't happen at that time at your house. A. No, sir. Q. You say they were at school at that time? A. Yes, sir; all fall. Q. All fall? A. Yes, sir; and winter. Q. Were they at school at the time of the conversation between you and Mr. and Mrs. Bixler about it? A. There wasn't any conversation. Q. There was no conversation? A. No, sir." The state subsequently called Mrs....