State v. Hunter

• Decision Date: 10 May 1904
• Parties: STATE v. HUNTER.
• Court: Missouri Supreme Court

80 S.W. 955

181 Mo. 316

STATE v. HUNTER.

Supreme Court of Missouri, Division No. 2.

May 10, 1904.

PERJURY — EVIDENCE — SUFFICIENCY — INFORMATION — ARRAIGNMENT OF ACCUSED — RECITALS OF JUDGMENT — CONSTRUCTION OF RECITAL — INSTRUCTIONS — CONFESSIONS — SERVING LIST OF JURORS — DISQUALIFICATION OF SHERIFF — APPEAL — CONFLICTING EVIDENCE.

1. Where the record in a criminal case recited, "The defendant, being arraigned, pleads not guilty," the recital sufficiently showed that defendant was personally present.

2. Where, on a motion by defendant in a criminal case to disqualify the sheriff, the evidence as to the sheriff's prejudice was conflicting, the determination of the trial court would not be disturbed on appeal.

3. Rev. St. 1899, § 2623, declaring that in criminal cases a list of jurors who shall have been found by the court to be qualified to sit as such shall be delivered to the defendant before the jury is sworn, is mandatory.

4. It is reversible error not to deliver such list on demand, irrespective of whether it appears that defendant was prejudiced by reason of his failure to obtain the list.

5. On a prosecution for perjury, the evidence must be something more than sufficient to counterbalance the oath of the prisoner and the legal presumption of his innocence, and the oath of the opposing witness will not avail, unless it is corroborated by other independent circumstances; but the additional evidence need not be such as, standing by itself, would justify a conviction, where the testimony of a single witness would suffice for that purpose.

6. On a prosecution for perjury, evidence held sufficient to show that defendant had testified falsely.

7. A confession is not admissible in evidence against the objection of the person making it, where it was induced by flattery of hope or by reason of fear.

8. Where the successful plaintiff in an action against a railroad company for injuries made a written confession that he had committed perjury on the trial, the confession being made under the promise of the prosecuting attorney of the county, who had also been one of the defendant's attorneys, that plaintiff would not be prosecuted for perjury, the confession was not admissible against plaintiff on a prosecution against him for perjury.

9. On appeal from a conviction of perjury, defendant could not complain of an instruction on the ground that it told the jury that certain matters therein stated were material, when in fact some of them were not, where the only effect of the instruction was to place on the state the burden of proving more facts than were necessary for it to prove.

10. On a prosecution for perjury, an instruction that the falsity of the testimony given by accused must be established beyond a reasonable doubt, either by the evidence of more than one credible witness or by one such witness strongly corroborated by other evidence of facts or circumstances, was erroneous, in that it did not tell the jury what was meant by "corroborated."

11. Corroborative evidence against accused on a prosecution for perjury means evidence aliunde which tends to show the perjury, independent of any declaration or admission of the prisoner.

12. On a prosecution for perjury, the court instructed that, if the jury should find that defendant made any statement in relation to the offense charged in the information after such offense was alleged to have been committed, the jury must consider such statements together, that what the defendant said against himself the law presumed to be true, and that what he said for himself the jury were not bound to believe. Held, that the instruction was erroneous.

13. Rev. St. 1899, § 2478, provides that, when any person has knowledge of the commission of any misdemeanor, he may make affidavit before any person authorized to administer oaths, setting forth the offense and the person or persons charged therewith, and file the same for the use of the prosecuting attorney, whose duty it shall be to file an information on the affidavit. Held, that the fact that an information charging one person with the crime of perjury was based on an affidavit which charged the accused and another jointly did not render the information invalid.

Appeal from Circuit Court, Warren County; E. M. Hughes, Judge.

Miner Hunter was convicted of perjury, and he appeals. Reversed.

J. W. Delventhal and E. Rosenberger & Son, for appellant. The Attorney General and C. D. Corum, for the State.

BURGESS, J.

On the 24th day of November, 1902, there was pending in the circuit court of Warren county an action by the defendant Hunter, a young negro man, against the Wabash Railroad Company, for damages for personal injuries alleged to have been sustained by Hunter by reason of the negligence and wrongful acts of defendant's servants and employés in charge of one of its trains, upon which he was a passenger. On said 24th day of November said cause of Hunter against the Wabash Railroad was tried by the court and jury; the trial resulting in a verdict and judgment for plaintiff in the sum of $5,000. J. B. Garber, Esq., then prosecuting attorney of Warren county, and one Vincent McShame were attorneys for Hunter in the prosecuting of said suit, and Judge C. E. Peers, a member of the Warrenton bar, represented the defendant. Shortly after the verdict was rendered in said cause Peers obtained from one William Pleasants, one of Hunter's witnesses, an admission that he had perjured himself on the trial of said cause. On December 13, 1902, N. P. Kemp, a private detective for the Wabash Railroad Company, appeared at Warrenton, and with the aid of J. B. Garber, prosecuting attorney, and also attorney for Hunter in his civil action against the Wabash Railroad Company, an alleged confession was obtained from Hunter, wherein Hunter admitted that he had obtained his judgment on perjured testimony and that his testimony on the trial of that cause was false. Hunter then, in the presence of Kemp, Garber, Judge Peers, Collector Ordelheide, and Sheriff Polster, was induced to sign a satisfaction of his $5,000 judgment, and to give an order to the clerk to satisfy said judgment on the records, stating it had been obtained on perjured testimony. At the same time Hunter was induced to enter a stipulation with Judge Peers, wherein Hunter again admitted that he had obtained the judgment on perjured testimony, and consented that this division of the Supreme Court might reverse the judgment of Hunter v. Wabash R. Co. On December 16, 1902, J. B. Garber, prosecuting attorney and attorney for Hunter in his civil action, had Hunter brought to his office and make an affidavit that his former testimony was false. After this no action was taken in the matter. Hunter was permitted to go at large.

Thereafter on January 6, 1903, M. P. Kemp filed an affidavit in the Warren county circuit court, charging the defendant and one Wm. Pleasants jointly with the crime of perjury. The defendant was thereupon arrested, and on January 13, 1903, a special term of court was held. The record shows that on said day defendant was arraigned and pleaded not guilty, but the affidavits in support of defendant's motion for a new trial show that defendant never was arraigned, but that he was in jail and never was brought into court for the purpose of pleading. On April 23, 1903, defendant filed his motion to disqualify the sheriff, alleging that the sheriff had manifested a personal interest in and about securing the conviction of the defendant; that he had used extreme and arbitrary measures to secure the conviction of the defendant; that he was duly biased and prejudiced against the defendant, etc. After the motion had been argued, the court called the sheriff to the stand, over the objections of the defendant, and permitted the sheriff to testify. The sheriff claimed he had no bias or prejudice against the defendant. On cross-examination Sheriff Polster admitted that he had refused defendant's counsel permission to advise with defendant, unless he (the sheriff) was present and heard the consultation, and that he would not allow defendant's counsel to advise with the defendant until after Judge Hughes had issued an order in chambers directing him to do so; that he was satisfied with defendant's guilt, and had stated that all the lawyers in the state of Missouri could not keep the defendant out of the pen; that when he conveyed defendant to Montgomery City under a writ of habeas corpus he instructed the jailer not to permit any one to talk to him. The court overruled the motion and defendant duly excepted. When the case was called for trial, before the defendant would announce as to whether he was ready for trial, he demanded of the court that the clerk be ordered to furnish him with a certified copy of the information in this cause, whereupon the clerk was ordered to furnish defendant with one. By the affidavits filed in support of the motion for a new trial it appears that the clerk never did furnish defendant or his counsel with a certified copy of the information. Before the jury was sworn defendant's counsel requested of the court that the clerk be ordered to deliver to the defendant a list of the jurymen who had been found by the court qualified to sit as such in his case, which request was overruled by the court, and defendant then and there saved an exception. At the close of all the evidence the defendant interposed a demurrer to all the evidence, which was refused, and an exception saved.

The court, of its own motion and over the objection and exception of defendant, instructed the jury as follows: "If the jury find, from the evidence in this case, that at the county of Warren and state of Missouri, on the 24th day of November, 1902, the cause of Miner Hunter against the Wabash Company, being a civil action for damages, was pending in and on trial before the circuit court of Warren county, Missouri, and that defendant was sworn as a witness on said...