State v. Koslowesky

• Court: Missouri Supreme Court
• Writing for the Court: Fox
• Citation: State v. Koslowesky, 128 S.W. 741, 228 Mo. 351 (Mo. 1910)
• Decision Date: 26 May 1910
• Parties: STATE v. KOSLOWESKY.

128 S.W. 741

228 Mo. 351

STATE v. KOSLOWESKY.

Supreme Court of Missouri, Division No. 2.

May 26, 1910.

1. PERJURY (§ 5)—ESSENTIALS OF OFFENSE.

It is necessary to constitute perjury, under, as well as independently of. Rev. St. § 2033 (Ann. St. 1906, p. 1348), that the false oath or testimony be given in some matter or proceeding before some court, tribunal, or public body or officer.

For other definitions, see Words and Phrases, vol. 6, pp. 5305-5310; vol. 8, p. 7751.]

2. PERJURY (§§ 21, 29)—INDICTMENT AND PROOF.

The indictment for perjury must allege the judicial proceeding in which it was committed, and the proof must conform thereto.

3. BAIL (§ 60)—QUALIFYING SURETIES.

To qualify a surety on a bail bond, he must be sworn and questioned as to his solvency in the particular case in which the bond is to be given, and a general qualification may not be made by one, without reference to any particular case, and filed in the court, to be referred to whenever he is offered as a surety.

4. PERJURY (§ 33)—PROSECUTION—EVIDENCE.

One may not be convicted of perjury, charged to have been committed in a certain case by his making false oath in qualifying himself to become surety on the bail bond of defendant therein, on evidence that, on a day on which as surety he executed bail bonds in seven cases, he made a false oath in qualifying himself generally as a surety; it not being shown in connection with which case, if any, he made the qualification.

Appeal from St. Louis Circuit Court; Danl. D. Fisher, Judge.

Meyer Koslowesky, alias Meyer Koslovsky, was convicted of perjury, and appeals. Reversed, and defendant discharged.

This is an appeal on the part of the defendant from a judgment of the circuit court of the city of St. Louis, convicting the defendant of perjury.

On the 29th day of May, 1908, the grand jury of the city of St. Louis returned into open court an indictment charging the defendant with the crime of perjury. This indictment charges perjury committed in a judicial proceeding before the St. Louis court of criminal correction in the case of the State of Missouri v. Joseph Boyd, said cause being for alleged "crap shooting," and the false swearing or perjury is predicated by appropriate allegations in such indictment upon an alleged false oath made by the appellant in qualifying himself to become surety upon the bail bond of said Joseph Boyd in the sum of $200.

The testimony developed upon the trial tended to prove that on December 24, 1907, there was pending in the St. Louis court of criminal correction a certain criminal action in which one Joseph Boyd was charged with playing a game of chance for money, with dice, and that defendant appeared before the judge of that court and offered himself as surety on Boyd's appearance bond. The testimony also discloses that the defendant had frequently signed in that court bonds for other persons who were charged with violations of the law, and that it was a common practice in that court to require persons who frequently signed bonds to be examined upon their oath as to their solvency and property qualifications, whenever in the opinion of the court it was necessary. Their sworn statements were reduced to writing, and, after being properly subscribed to, were preserved as a file of the court to be used by it whenever the persons so qualifying presented themselves as bondsmen. The bondsman's sworn statement or qualification, as it is referred to in the record, did not bear the name or style of any particular case, and was not, in fact, made in connection with any particular case, but was given by the bondsman and taken by the court for use in all cases in which the person qualifying presented himself as surety; this method being adopted in lieu of a separate qualification in each particular case. The testimony tends to disclose that the practice of taking these sworn statements and the purposes for which such sworn statements were taken and the use to which they were to be applied was known to the defendant. The record discloses that these regular sureties were not required to make a qualification in each case when they signed bonds, but were required to make a qualification only at intervals; but about the time the qualification in this proceeding was executed the judge of the court of criminal correction had notified the deputy clerk, Mr. Moone, who attended to such matters, to take a qualification of appellant the next time he presented himself as surety.

On the 24th of December, 1907, in the first case in which appellant became surety, the deputy clerk, Mr. Moone, prepared and took his qualification in the form of an affidavit or statement. This qualification or statement does not purport to have been taken in any case, but is left blank, both as to the name of the defendant and the charge against him, and the statement or affidavit or qualification, whatever you may term it, does not indicate in what case or for what principal the surety was qualifying himself. The deputy clerk, Mr. Moone, testified that this and other qualifications of regular sureties were not deposited with the files in any case, but that such qualifications were kept in a certain pigeonhole where they could be resorted to by the court for information in regard to the surety, if desired. This witness, Mr. Moone, also testified that he had no recollection in what case the appellant first presented himself as surety on the aforesaid date—that is, on December 24, 1907—nor could he from recollection or otherwise connect the taking of such qualification with the Joseph Boyd case, or with any other case. It is also disclosed by the testimony in the record, and was stated by the deputy clerk, that the appellant in this cause on the same date executed six other bonds, which he (the witness) was able to find, and that he may have executed a number of other bonds on that same date; that, without a long and tedious search through all the files and a great many cases, it would be impossible for him to say how many bonds had been executed by the defendant on that date. It also appears that no record was made of the fact of a bond being given; the bond itself filed with the papers in the case being the only evidence of the execution of the bond. Mr. Moone, upon cross-examination, testified concerning the qualification of the appellant upon the bond taken as follows: "Q. When you say that qualification was before the court, you don't have...