State v. Higgins

• Decision Date: 20 November 1894
• Citation: 28 S.W. 178,124 Mo. 640
• Parties: The State v. Higgins, Appellant
• Court: Missouri Supreme Court

28 S.W. 178

124 Mo. 640

The State v. Higgins, Appellant

Supreme Court of Missouri, Second Division

November 20, 1894

Appeal from Mercer Circuit Court. -- Hon. P. C. Stepp, Judge.

Reversed and remanded.

Bolster & Steckman and H. J. Alley for appellant.

(1) The testimony of Mr. and Mrs. Bixler, as to the conversation at Mr. Higgins' house, in the absence of the defendant, was incompetent and prejudicial. This error is too glaring to be defended, or to require citation of authorities. (2) The testimony of witness Hampton was incompetent. Upon a trial for perjury incompetent testimony could not be waived. (3) It was not necessary to object specifically to the questions to witness Hampton. The court should have rejected it upon its own motion. The statement of defendant's counsel that witness might testify to contents of his docket was sufficient objection to all other testimony by such witness. State v. Douglas, 15 Mo.App. 1; State v O'Connor, 65 Mo. 374; State v. Brown, 115 Mo. 409. (4) The indictment does not charge that witness falsely testified that "if Daniel W. Ragan was at his (Higgins') house on the twenty-eighth day of October 1891, he did not know it." The instructions must traverse and conform to the issues presented by the indictment. State v. Hamilton, 65 Mo. 667; State v. Frisby, 90 Mo. 530. (5) This instruction is also bad for the reason that it failed to tell the jury that before they could find the defendant guilty they must find that defendant willfully, corruptly or knowingly testified falsely. To make him guilty of perjury the indictment must set out that he testified willfully or knowingly, corruptly and falsely, and the court must instruct the jury that before they can find him guilty they must believe from the evidence beyond a reasonable doubt that he did willfully (that is knowingly), corruptly and falsely testify to the words charged in the indictment. State v. Hong Tong, 115 Mo. 389; State v. Reed, 117 Mo. 604; State v Herrell, 97 Mo. 105.

R. F. Walker, Attorney General, for the state.

(1) The indictment is sufficient. It sets out all the material and necessary facts which constitute the crime of perjury. R. S. 1889, sec. 3665; State v. Huckeby, 87 Mo. 414; State v. Cave, 81 Mo. 450. (2) This court will only interfere with the verdict of the jury and the judgment of the trial court upon the ground that the verdict is not supported and authorized by the evidence, where there is a total failure of proof. State v. Young, 24 S.W. 1038; State v. Richardson, 117 Mo. 586; State v. Moxley, 115 Mo. 586; State v. Hermann, 117 Mo. 629; State v. Banks, 118 Mo. 117. On the contrary, the testimony in this case conclusively established the guilt of the defendant. (3) The courts will take judicial notice of the jurisdiction of justices of the peace to hold preliminary examinations of defendants charged with felony, as well as all duties of public officers. State v. Gates, 67 Mo. 139. (4) The question asked Mr. and Mrs. Bixler were relevant and competent. (5) One of the material facts in which the state charged in the indictment that defendant swore falsely was, "Daniel W. Ragan was not at my dwelling house in said county." The evidence established the fact of Ragan's presence, and the court properly instructed the jury that if defendant testified before Hampton, justice of the peace, that Ragan was not there, and if there, he, defendant, did not know it, they should find defendant guilty, etc. This instruction followed the language of the indictment, was supported by the testimony, correctly declared the law, and was properly given. Nor is the instruction to be restricted to the exact language charged in the indictment, but the substance of the charge alleged. State v. Frisby, 90 Mo. 533.

OPINION

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 sixteenth 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 his 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 sixteenth 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 Bethel, 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 his 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. Bixler as a witness who testified, over defendant's objections, as follows:

"Q. Mrs. Bixler, have you been sworn? A. Yes, sir.

"Q. Are you acquainted with Mr. Higgins? A. Yes, sir.

"Q. Are you acquainted with their oldest boy, Bethel? A. Yes sir.

"Q. Tell the jury whether or not you and your husband were at Mr Higgins' house in ...