State v. Holden

• Decision Date: 31 March 1871
• Citation: 48 Mo. 93
• Parties: THE STATE OF MISSOURI, Appellant, v. PHILIP HOLDEN, Respondent.
• Court: Missouri Supreme Court

48 Mo. 93

THE STATE OF MISSOURI, Appellant,

v.PHILIP HOLDEN, Respondent.

Supreme Court of Missouri.

March Term, 1871.

Appeal from Scott County Circuit Court.

A. J. Baker, Attorney-General, L. H. Davis and L. Brown, for appellant.

I. The allegation of false swearing against the defendant in the indictment is not too general and indefinite. It is stated with sufficient certainty and particularity. It states that the “evidence was material to the issue at said trial.” This is sufficient, and it is not necessary to show how it was material. Neither is it necessary that the record should show that the false oath was material. (Whart. Crim. Law, § 2263; Campbell v. People, 8 Wend. 636.) If the allegation had been so framed as to have implied materiality only, it would be sufficient. (Whart. Crim. Law, § 2263; 1 Tenn. 69; 5 Tenn. 318; Campbell v. People, supra, and cases cited; Hinch v. State, 2 Mo. 158.) It is not necessary to allege all the circumstances which go to make such materiality. (State v. Mumford, 1 Dev. 519.)

II. It is a rule of pleading that inferences and conclusions of the law, or matters of which judicial notice must be taken, need not be averred. (Gen. Stat. 1865, p. 661, § 39.) And it is not necessary, in dictments of this nature, to set forth any part of the record, proceeding or process. (Gen. Stat. 1865, p. 800, § 7.)

III. “No indictment shall be deemed invalid, nor shall the trial * * * be stayed * * or in any manner affected * * * for any defect or imperfection which does not tend to the prejudice of the substantial rights of the defendants upon the merits.” (Gen. Stat. 1865, p. 841, § 27.)Houck, Waterbury & Collier, for respondent.

It is necessary, in order to constitute the crime of perjury, that the false testimony should have reference and application to some material issue or inquiry, in order to be itself material matter (State v. Bailey, 34 Mo. 352; Hinch v. State, 2 Mo. 159.) It nowhere appears in the indictment that upon “a certain trial it became and was a material question,” etc., which averment is required by the law. (Whart. Crim. Law, § 2263, and note; Whart. Crim. Prac. 577.)

BLISS, Judge, delivered the opinion of the court.

The indictment charges that in a certain action, etc., giving the court and parties, “certain issues were therein joined in said court between said parties, and said issues came on to be tried, * * * and that, upon said trial, the said Philip Holden was duly sworn as a witness by the clerk of said court (said clerk then and there having competent authority to administer said oath), to speak the truth, the whole truth, and nothing but the truth in the said cause, touching the matters then and there in issue on said trial; that thereupon the said Holden did swear and testify in substance as follows: [[[[[giving the testimony]; that said evidence was material to the issues at said trial,” etc. Then follow other proper averments, but none other are made in relation to the materiality of the testimony, and no facts are stated showing such materiality. The indictment was quashed, and the State appeals.

The indictment is radically defective. There is no general allegation that it became material to establish certain facts, or that certain material questions arose upon the trial; nor is the suit or its issues sufficiently described to enable us to judge of the character of the testimony. Its materiality must appear from facts set forth in the pleading, and it is not sufficient simply to say that it was material. If the pleader had stated what question arose, or what was necessary to be proved upon the trial of the case, the court would be enabled to see whether the testimony alleged to have been falsely given was material or not. As it is, we have only the opinion of the pleader without knowing upon what he bases it. It was formerly deemed necessary to set out in detail the proceeding in the progress of which the perjury was charged to have been committed, but it has...