State v. Lafferty

• Decision Date: 12 June 1967
• Docket Number: No. 1,No. 52289,52289,1
• Citation: 416 S.W.2d 157
• Court: Missouri Supreme Court
• Parties: STATE of Missouri, Respondent, v. Olin Neal LAFFERTY, Appellant

Page 157

416 S.W.2d 157

STATE of Missouri, Respondent, v. Olin Neal LAFFERTY, Appellant.

No. 52289.

Supreme Court of Missouri, Division No. 1.

June 12, 1967.

Motion for Rehearing or to Transfer to Court en Banc Denied

July 10, 1967.

Norman H. Anderson, Atty. Gen., Jefferson City, Selden M. Jones, Sp. Asst. Atty. Gen., Kansas City, for respondent.

Ben J. Martin, Springfield, for appellant.

HIGGINS, Commissioner.

Appellant was convicted by a jury of perjury. Section 557.010, V.A.M.S. Pursuant to such verdict and upon a finding of prior conviction, the court assessed appellant's punishment at 7-years' imprisonment in the penitentiary and sentenced him accordingly. Sections 556.280 and 557.020, V.A.M.S.

Appellant was tried on an amended information which charged him with a prior felony and that on February 1, 1966, he did 'wilfully, unlawfully and feloniously, knowingly, corruptly and falsely swear and testify, in substance and to the effect that he did not have concealed about his person on the 30th day of January, 1965, a certain 22 Rosco Steel Revolver, Serial No. 601052, which testimony was given in a concealed weapons trial in which (he) was the defendant * * *, under oath duly administered by Lylian Garrison, Deputy Clerk of the Circuit Court of Greene County, Missouri (the said Lylian Garrison being a person who had competent authority to administer said oath), which case was then and there pending in the Circuit Court of Greene County, Division I, before the Honorable Jack Powell, Judge * * *, which Court and Judge had competent authority to hear the said case in which all of the aforesaid testimony was material to the issue as to whether or not Olin Neal Lafferty did have concealed about his person, the said 22 Rosco Blue Steel Revolver, Serial No. 601052, whereas in truth and in fact, the said Olin Neal Lafferty did have concealed about his person the said 22 Rosco Blue Steel Revolver, Serial No. 601052, all of which the said Olin Neal Lafferty * * * knew to be true at the time he testified falsely as aforesaid, contrary, etc. * * *.'

The concealed weapon charge was tried by a jury before the Honorable Jack A. Powell, Judge of Division I, Greene County, Missouri, Circuit Court, February 1, 1966. (The resulting conviction was affirmed in State v. Lafferty, Mo., 415 S.W.2d 792.)

In this case, Judge Powell testified that he was the circuit judge in appellant's February 1, 1966, trial on the concealed weapon charge; that the material issue in that case was whether Olin Neal Lafferty carried a Rosco revolver, Serial No. 601052 concealed upon his person; that Lylian Garrison was the deputy circuit clerk during that trial and that she is a person duly authorized to administer oaths to witnesses to tell the truth.

Lylian Garrison testified that she was a deputy circuit clerk on February 1, 1966, in the trial on that date of State of Missouri v. Olin Neal Lafferty; that she administered an oath to tell the truth to Olin Neal Lafferty as a witness in his own behalf in that case; and that he did subsequently testify in that case.

Robert O. Wray, official court reporter for Judge Powell, testified that he took and accurately recorded all of the testimony in the previous trial of Olin Neal Lafferty; that he transcribed the testimony given by Olin Neal Lafferty under oath in the previous trial; that a portion of the cross-examination of Olin Neal Lafferty had been transcribed at the request of the prosecution, which reads:

'BY MR. YOCOM: Q. Now, you are saying that this weapon, State's Exhibit A, was not taken off your person, is that correct? A. That's right. Q. That's your testimony? A. That's my testimony.

'Q. Had you ever seen this weapon before today, can you tell us about that? A. I never recognized it before today.

'Q. Did you see that gun the night of January 30th, 1965? A. Not that I know of. Q. You never had it in your hip pocket that night, is that what-- A. I sure didn't Q. -- Your testimony is? A. That is my testimony.

'Q. You realize you are under oath? A. I realize where I'm at. Q. And you realize you are under oath in making these statements-- A. Yes, sir. Q. --is that correct? A. Yes, sir.

'Q. All right. You have never seen this gun before today. A. Not that I know of. I didn't have it in my hip pocket, I know that.

'Q. Where did you have it if you have seen it before? A. If I seen it before? It was when he come up with it. I don't know if it's the same--

'Q. Who are you talking about came up with it? A. That cop out there when he came up with the gun and he said he took it out of my pocket. Q. You are talking about Ray Landers? A. I guess that's his name.

'Q. Are you claiming that he came up with this weapon out of his own pocket and it was never in your pocket? A. I don't know where he came up with it from, but he didn't get it out of my pocket.

'Q. He never got it out of your pocket, nor off your person, is that right? A. That's right. That's right. Q. Is that your testimony? A. That's it.

'Q. All right. You never saw any weapon like that that night, is that correct? A. That's right.'

Mr. Wray also identified Exhibit E in this case, a 22 Rosco revolver, Serial No. 601052, as being the same as Exhibit A referred to in the testimony transcribed from the previous trial.

On January 30, 1965, Raymond Landers, patrolman on the Springfield, Missouri, police force, responded to a call and went to a laundry in the 1500 block on North Barnes. He found a Mr. Earls standing in the laundry holding a gun on Olin Neal Lafferty. He arrested him and, upon searching him, found a 22-caliber revolver, State's Exhibit E, in his right hip pocket. 'It was fully concealed down in the pocket, was also covered by a coat.'

Wade Earls operated a laundry and trailer court at 1545 North Barnes, Springfield, Missouri. On January 30, 1965, he had occasion to take a gun and go into his laundry where he found Olin Neal Lafferty. He tried to put his hands into his pockets and Mr. Earls held the gun on him and told him not to put his hands into his pockets. He stayed that way until Officer Landers arrived. Mr. Earls watched Officer Landers search appellant and take a small revolver, identical to Exhibit E, from appellant's right, back pants pocket.

Eva May Earls also observed the search of Olin Neal Lafferty by Officer Landers and saw him take a gun like Exhibit E from appellant's person.

After resting, the State requested and was granted leave to reopen its case. Lylian Garrison was recalled and testified that when she administered an oath to tell the truth to Olin Neal Lafferty on his February 1, 1966, trial, she was a person who had competent authority to administer that oath.

As upon his trial on the concealed weapon charge, State v. Lafferty, Mo., No. 52199, supra, appellant was represented by counsel upon trial, in preparation and hearing of his motion for new trial, and until after the filing of the transcript in this court on November 29, 1966. On December 22, 1966, appellant filed a motion in this court 'to have appeal considered without further entry by defense counsel' on 'those Points properly preserved for appeal in Appellant's Motion for New Trial and those matters required by Criminal Rule 28.02, V.A.M.R. to be reviewed.' The motion was sustained.

Appellant does not question the sufficiency of the evidence; suffice to say that the foregoing evidence would support a finding that defendant perjured himself on a material matter in his testimony under oath at his February 1, 1966, trial on a charge of carrying a concealed weapon. Section 557.010, V.A.M.S., State v. Clinkingbeard, 296 Mo. 25, 247 S.W. 199, 202(3).

In point 1 of his motion for new trial appellant charges that the court erred in permitting the State to amend the original information during the opening statement of the prosecuting attorney to add the allegation 'the said Lillian (sic) Garrison being a person who had competent authority to administer the said oath.' He contends that the original information did not state a charge against him and the amendment by which a 'charge was created' therefore prejudiced his substantial rights.

It is true that the original information was fatally defective for failure to aver that the person who administered the oath to appellant had competent authority to administer the same. Section 557.030, V.A.M.S.; State v. Biedermann, 342 Mo. 957, 119 S.W.2d 270. However, the original information attempted to charge and did advise appellant that he was accused of perjury by wilfully testifying falsely to a material matter while under oath in a previous trial. '(T)he very essence of the crime of perjury is wilful false swearing to a substantially definite material fact.' State v. Vidauri, Mo., 305 S.W.2d 437, 440(2). See also Leonard v. Superior Court, 4 Cal.2d 215, 48 P.2d 687, 688(2, 3). Thus, even though the amendment added language which admittedly removed all doubt from the sufficiency of the charge of perjury, it cannot be said that the original information was not sufficient to advise appellant that he was accused of perjury, and there is no prejudice to a defendant by reason of an 'amendment' or correction of an information 'as long as no additional or different offense is charged. * * * V.A.M.S. § 545.290; Supreme Court Rules 24.02, 24.11.' State v. Mallory, Mo., 336 S.W.2d 383, 385(5). See also State v. Colbart, Mo., 411 S.W.2d 92, 95(3--5); State v. Lane, Mo., 371 S.W.2d 261, 264(4); and see State v. Redding, 362 Mo. 39, 239 S.W.2d 494, where, as here, the amendment came after the jurors were sworn.

Nor was there error as suggested by point 2 when 'after it allowed the State to amend its Information * * *, the trial court did not afford the defendant an opportunity to have a preliminary hearing.' Appellant concedes that the court 'did inquire of the...