State v. Kaempfer

• Citation: 119 S.W.2d 294,342 Mo. 1007
• Decision Date: 17 August 1938
• Docket Number: 35846
• Parties: The State v. Harry Kaempfer, Appellant
• Court: United States State Supreme Court of Missouri

119 S.W.2d 294

342 Mo. 1007

The State v. Harry Kaempfer, Appellant

No. 35846

Supreme Court of Missouri

August 17, 1938

Appeal from Mississippi Circuit Court; Hon. Frank Kelly Judge.

Affirmed.

Roy McKittrick, Attorney General, and W. J. Burke Assistant Attorney General, for respondent.

(1) The evidence was sufficient to sustain the charges in the information. State v. Banks, 258 Mo. 479, 167 S.W 505; Sec. 1752, R. S. 1929; State v. Faulkner, 75 S.W. 116, 175 Mo. 581; State v. McGee, 106 S.W.2d 480. (2) The court did not err in refusing to give Instruction a, b at the close of the State's case, and the court did not err in giving Instruction b at the close of all the case. State v. Barr, 78 S.W.2d 104, 326 Mo. 300; State v. Lebo, 98 S.W.2d 697; State v. Starling, 207 S.W. 767; State v. Meadows, 51 S.W.2d 1033, 330 Mo. 1020; State v. McGee, 106 S.W.2d 480. (3) The court did not err in permitting the prosecuting attorney to detail minutely the facts surrounding the murder of Tom Carlton in his opening statement. State v. McGee, 106 S.W.2d 480; State v. Koslowesky, 128 S.W. 741, 228 Mo. 359; State v. Smith, 98 S.W.2d 572. (4) Witnesses Jack Lance and Russell Lance were corroborative of Ira Collins on the fact of the falsity of defendant's testimony in State v. Smith. State v. McGee, 106 S.W.2d 480; State v. Hunter, 80 S.W. 955.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Appellant was convicted of perjury and received a sentence of seven years' imprisonment in the penitentiary from which sentence he appealed. Appellant was a witness and testified on behalf of Floyd Smith, who was tried for murder. The Smith trial was held on September 4 to 6, 1935, in Scott County, Missouri. The information charged that appellant intentionally testified to material facts in the Smith case, knowing at the time that his testimony was false. Appellant applied for and was granted a change of venue to the Mississippi County Circuit Court. Smith and others were charged with the murder of one W. T. Carlton. A number of the cases growing out of that homicide have reached this court. [See State v. Smith, 339 Mo. 870, 98 S.W.2d 572; State v. Claude McGee, 341 Mo. 148, 106 S.W.2d 478; State v. Thomas McGee, 341 Mo. 151, 106 S.W.2d 480.] Thomas McGee was convicted of perjury for having allegedly testified falsely at the trial of his brother Claude, who was jointly charged with Smith in the murder case. That conviction of perjury was affirmed by this court. Appellant in this case gave evidence in the Smith trial in support of Smith's plea of an alibi. Appellant testified that he was with Smith on the evening of the murder from about 6:30 P. M. until 8:30 P. M., having attended a picture show together in Cape Girardeau, Missouri, and that the two separated a little after 8:30 P. M. The murder was committed at a point about twelve miles from Cape Girardeau, at 9:00 P. M. on that date.

Appellant has filed no brief in this case so we will dispose of the points preserved for our review in the motion for a new trial. Appellant urged that the evidence was insufficient to sustain a conviction of perjury. He contends that the uncorroborated evidence of one witness is not sufficient in law to sustain a conviction of perjury. This we concede. Ira Collins testified for the State. His evidence at this trial was substantially the same as in the case of State v. Thomas McGee. See that case for a detailed statement of his evidence. We held in the McGee case that there was sufficient evidence to sustain the conviction of perjury; that the circumstances, as testified to by a number of witnesses, were sufficient corroboration of the evidence of Ira Collins. Collins testified that he was employed to and did take Smith, Claude McGee and John Manor to the scene of the murder in his car on the evening of May 8, 1935; that they left Cape Girardeau about 7:30 P. M.; that he remained in the car on the road near the Carlton home; that Smith, McGee and Manor left the car; that at about 9:00 P. M. a car drove by going to the Carlton home. Other witnesses, that is, Mrs. Carlton and her two daughters, testified that when they reached home they noticed lights in the house; that Mr. Carlton went to investigate, and immediately after he reached the house they heard shots. Carlton died from shot wounds within a few minutes. Mrs. Carlton and her two daughters testified that Smith was there and remained there about an hour; that he had a revolver and kept all persons under guard, including neighbors who arrived at the scene. These neighbors also testified and identified Smith. Smith left, taking the car belonging to Carlton. A ballistic expert testified that in his opinion the bullet taken from Carlton's body was fired from a revolver taken from Smith when he was arrested. Ira Collins testified that shortly after the car in which the Carltons were riding had passed him he heard a woman scream and immediately thereafter McGee and Manor came running to his car. He stated that he immediately started driving away, but that McGee and Manor wanted him to wait for Smith; that he refused to do so and drove to Cape Girardeau where he left McGee and Manor at their homes.

There is an abundance of evidence, corroborating the evidence of Ira Collins, that Floyd Smith was at the scene of the crime at 9:00 P. M. Appellant, however, urges that Smith could have left him at 8:30 P. M. in Cape Girardeau and still have been at the scene of the murder at 9:00 P. M. That may be true but there was other evidence, which we detailed in the Thomas McGee case, which corroborates the evidence of Collins that Smith was at the scene of the murder long before 8:30 P. M. The car in which Smith, McGee and Manor were riding was seen parked upon the road near the Carlton place long before 9:00 P. M. Smith was in the Carlton home when the family arrived. The house had been ransacked, which consumed some time. The State also introduced evidence that a part of the road, between Cape Girardeau and the scene of the crime, was rough. A test was made and it took twenty-five...