State v. Hunter

• Court: Missouri Supreme Court
• Writing for the Court: BURGESS, J.
• Citation: State v. Hunter, 181 Mo. 316, 80 S.W. 955 (Mo. 1904)
• Decision Date: 10 May 1904
• Parties: THE STATE v. HUNTER, Appellant

80 S.W. 955

181 Mo. 316

THE STATE v. HUNTER, Appellant

Supreme Court of Missouri, Second Division

May 10, 1904

Appeal from Warren Circuit Court. -- Hon. E. M. Hughes, Judge.

Reversed and remanded.

J. W Delventhal and E. Rosenberger & Son for appellant.

(1) The plea is the first step in the trial. The defendant must be present in person in a felony case, his plea duly taken, and the record must show this fact affirmatively. (2) While the court is not bound to take the affidavit of a party that the sheriff is prejudiced against him as conclusive, and while it has some discretion about the matter, yet, if this discretion is abused, it is reversible error. State v. Leabo, 89 Mo. 247; State v. Hultz, 106 Mo. 41. (3) A list of the jurors who have been found by the court qualified to sit as such in his case shall be delivered to defendant before the jury is sworn, if such list be required. Sec 2623, R. S. 1899; State v. May, 142 Mo. 135. (4) To authorize a conviction of perjury there must be two witnesses testifying to the falsity of the statement, or one witness with strong corroborating circumstances of such a character as to clearly turn the scale and overcome the oath of the party and the legal presumption of his innocence. And by corroborative evidence is not meant such as emanates from the mouth of the prisoner himself, but evidence aliunde, evidence which tends to show the perjury independently of his own declarations, and in the case at bar there was no such corroborative evidence and the court should have directed an acquittal. Schwartz v. Commonwealth, 27 Grat. 1025; State v. Buckley, 18 Ore. 228. (5) The court erred in admitting the so-called confessions and satisfaction of judgment and the affidavit of the defendant admitting his guilt. Confessions induced by the flattery of hope, or terror of punishment are not admissible in evidence, and before any confession can be received in evidence in a criminal cause, it must be shown to be voluntary. Hector v. State, 2 Mo. 166; State v. Conley, 12 Mo. 462; State v. Brockman, 46 Mo. 566; State v. Hagan, 54 Mo. 192; State v. German, 54 Mo. 526; State v. Young, 119 Mo. 495; State v. McKenzie, 144 Mo. 40; State v. Moore, 160 Mo. 443; State v. Jones, 171 Mo. 401. (6) Defendant repeatedly offered evidence tending to prove a conspiracy formed for the sole purpose of convicting him for the purpose of preventing him from collecting his judgment against the railroad company, and offered to show the animus which prompted the prosecution, the interest of the State's witnesses in the trial, and all these proffers were excluded, and it was error to do so. (7) The court erred in giving instructions 1, 2, 3, 5 and 8 of its own motion. (a) Instruction 2 is fatally erroneous because it fails to state that by corroborative evidence is not meant such as emanates from the mouth of the prisoner himself but evidence aliunde, evidence which tends to show the perjury independently of his own declarations. Schwartz v. Commonwealth, 27 Grat. 1025; Buckley v. Oregon, 18 Ore. 228. (b) In trials for perjury it is error for the court to instruct the jury that "what the defendant said against himself, if anything, the law presumes to be true because said against himself," and hence instruction 5 is erroneous. State v. Williams, 30 Mo. 364; Regina v. Wheatland, 8 Car. & Payne 283; Regina v. Hughes, 1 Car. & Ker. 519; 2 Russell on Crimes, 651, 652; Roscoe Crim. Ev., 767, 768; 3 Wharton, par. 2275; Bishop Crim. Law, par. 1004 and 1005; Greenleaf on Evidence, 259; Rhodes v. Commonwealth, 78 Va. 692; Patterson v. State, 74 Ala. 34; Freeman v. Florida, 19 Fla. 552; Schwartz v. Commonwealth, 27 Grat. 1025; State v. Buckley, 18 Ore. 228; Gabrielsky v. State, 13 Tex.App. 428; Brooks v. State, 29 Tex.App. 582; United States v. Deady, 127. (8) (a) If the confessions and declarations were made by the defendant to the prosecuting attorney under inducements held out by the prosecuting attorney, and acting under these inducements the defendant made a confession, then the jury should have disregarded them and the jury should have been so instructed, and it was error to refuse defendant's instruction 7. State v. Conley, 12 Mo. 166; State v. McKenzie, 144 Mo. 40; State v. Moore, 160 Mo. 443; State v. Jones, 171 Mo. 401. (b) Defendant's instruction 10 should have been given. "Where a confession has once been obtained by the means of hope or fear, confessions or admissions subsequently made are presumed to come from the same motive." Underhill on Crim. Ev., par. 130; State v. Jones, 54 Mo. 478; State v. Brown, 73 Mo. 631. (9) (a) The information is fatally defective and the motion in arrest of judgment should have been sustained. (b) Where the affidavit of a private person has been filed, the information of the prosecuting attorney will be considered as based upon it; and if the affidavit is insufficient, the information can not stand. State v. Connel, 45 Mo.App. 94; State v. Lennan, 66 Mo.App. 472; State v. Gartrell, 14 Ind. 280; State v. Beebe, 83 Ind. 171; City of Galt v. Elder, 47 Mo.App. 164; State v. White, 55 Mo.App. 356; State v. Grubb, 71 Mo.App. 214; State v. Whittaker, 75 Mo.App. 184. (c) Perjury can not be a joint crime. If two witnesses, on the trial of one cause, commit separate perjuries their indictments must be separate. Wharton's Crim. Law, 653; 2 Bishop New Crim. Procedure, sec. 936; Rex v. Philips, 2 Str. 921; Vaughn v. State, 4 Mo. 530; State v. Daubert, 42 Mo. 242; Lindsay v. State, 48 Ala. 169; State v. Deaton, 92 N.C. 788; U. S. v. Davis, 33 F. 621; U. S. v. Kozinski, 2 Sprague (U.S.) 7; Rex v. Nickless, 8 C. & P. 757; Reg. v. Dovey, 2 Eng. L. & Eq. 532.

Edward C. Crow, Attorney-General, and C. D. Corum for the State.

(1) The record showing the arraignment of the defendant reads as follows: "The defendant, being arraigned, pleads not guilty, and cause continued." This is sufficient to establish that the defendant was personally present. R. S. 1899, sec. 2610. (2) The court did not err in overruling defendant's motion to disqualify the sheriff. It is true that there was evidence offered tending to show that the sheriff was prejudiced against defendant, but it is also true that there was evidence offered on the motion on behalf of the State, which tended to show that the sheriff had no prejudice. Affidavits were offered in support of and against the motion. Under such circumstances, the finding of the trial court will not be disturbed in the absence of evidence showing that its finding was arbitrary and unjust. State v. Hultz, 106 Mo. 41; State v. Leabo, 89 Mo. 249; State v. Taylor, 134 Mo. 138. (3) The record recites that "before the jury was sworn, defendant's counsel requested of the court that the clerk of the court be ordered to deliver to defendant a list of the jurors who had been found by the court qualified to sit as such in his case." "It was a matter within the wise discretion of the court, and it is apparent no harm has resulted, as there is no objection in the record to any individual juror on the panel afterwards selected from which the jury was chosen to try this case." State v. Faulkner, 175 Mo. 578. (4) As to the contention that it was error for the court to instruct the jury that what defendant said against himself the law presumed to be true, because said against himself, the Missouri citation, 30 Mo. 364, is not applicable. A casual reading of that case will disclose that Judge Scott had in mind the question as to the sufficiency of the evidence to sustain the charge of perjury, and he observed that the statements of the defendant then were not sufficient to convict of that crime. (5) Defendant complains that the court erred in refusing to instruct the jury that if they believed that the confessions or admissions made by defendant were made on account of an inducement held out to him by the prosecuting attorney or promises which operated on his mind in the hope of escaping punishment, or any other inducement amounting to force, threats or promises, then they should disregard such confession. In the case of State v. Brennan, 164 Mo. 510, the defendant asked and the court refused an instruction containing substantially the same points raised in the instruction asked by defendant here and refused by the court.

OPINION

BURGESS, J.

On the twenty-fourth 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 employees in charge of one of its trains upon which he was a passenger. On said twenty-fourth 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 five thousand dollars. 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 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...