State v. McGee, 35337.

• Decision Date: 21 June 1937
• Docket Number: No. 35337.,35337.
• Citation: 106 S.W.2d 480
• Parties: THE STATE v. THOMAS McGEE, Appellant.
• Court: Missouri Supreme Court

106 S.W.2d 480

THE STATE v. THOMAS McGEE, Appellant.

No. 35337.

Supreme Court of Missouri.

Division Two, June 21, 1937.

Appeal from Scott Circuit Court. — Hon. Frank Kelly, Judge.

AFFIRMED.

R.P. Smith for appellant.

Where several assignments of perjury are laid and all are submitted to the jury, the conviction will not stand if any assignment rests upon the uncorroborated testimony of a single witness. State v. Blize, 111 Mo. 464, 20 S.W. 210; State v. Faulkner, 175 Mo. 546, 75 S.W. 116, l.c. 127; State v. Hunter, 181 Mo. 316, 80 S.W. 955, l.c. 959; State v. Carter, 315 Mo. 215, 285 S.W. 971; State v. Hardiman, 277 Mo. 229, 209 S.W. 879, l.c. 880. The corroborative evidence supporting the testimony of a single witness must be upon a material point. State v. Rhoten, 259 Mo. 424, 168 S.W. 590.

Roy McKittrick, Attorney General, and Aubrey R. Hammett, Jr., Assistant Attorney General, for respondent.

WESTHUES, C.

Appellant was convicted of perjury and sentenced to imprisonment in the penitentiary for a term of seven years. He appealed.

The information charged that appellant had given false testimony on behalf of his brother, Claude McGee, the defendant in the case of State v. McGee, 341 Mo. 148, 106 S.W. (2d) 478. Claude McGee in that case was charged with the murder of W.T. Carlton, in Scott County, Missouri. It was alleged in the information that appellant, Thomas McGee, had falsely testified at the murder trial that Claude McGee was with him in Cape Girardeau from one P.M. on May 8, 1935, the day the murder was committed, until five-thirty or six P.M., and from about five forty-five or six P.M. to nine P.M. of said day.

Appellant briefed a number of assignments of error. In his argument, however, it is correctly stated as follows:

"All of the errors assigned in this cause turn about the requirement of the law that in a perjury case a conviction must rest upon something more than the testimony of a single witness. This proposition of law and the complementary rule that the necessary corroboration must be upon a material fact or facts, form the basis of this appeal. The charge here involved is a double charge alleging first perjured testimony as to the whereabouts of Claude McGee on the afternoon of May 8, 1935, and second, perjured testimony as to the whereabouts of said Claude McGee on the night of May 8, 1935. It is possible for the court to say that there is sufficient testimony to support the jury's verdict upon the first of these charges, although the State's witnesses do not agree on whether or not the facts detailed by them occurred within the period covered by defendant's alleged false testimony. On the other hand no one other than the witness Ira Collins attempted to testify as to the whereabouts of Claude McGee after 6:00 P.M. on the night in question."

The instructions of the court, as given to the jury, authorized a conviction if the jury believed appellant's testimony, as to the whereabouts of Claude McGee on the night of May 8, 1935, was false. Note the following taken from the instruction:

"The Court further instructs the jury that to authorize a conviction of the defendant in this case, it is not necessary for you to believe and find from the evidence that the defendant, Thomas McGee, made all of the statements hereinabove set out when sworn as a witness before said Court, as herein set forth, and that he did so willfully, knowingly, corruptly and falsely, and that all of said statements were false; but it is sufficient to authorize a conviction of the defendant if the jury believe and find from the evidence that the defendant, Thomas McGee, did make at least one of the statements hereinabove set out when sworn as a witness before said Court, as herein set forth and that he did so willfully, knowingly, corruptly and falsely, and that said statement was false; and you are further instructed that the falsity of such statement must be established to your satisfaction and 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 and circumstances which convice your minds of the truth of the testimony of such single witness, and you must further be satisfied that the testimony of such single witness thus establishes the falsity of such statement beyond a reasonable doubt."

The correctness of this instruction was not questioned, but it is insisted here that the State offered only one witness for the purpose of proving that Claude McGee was not at the place where appellant testified he was, on the night of May 8, 1935, between the hours of about six to nine P.M.; also, that this one witness was not corroborated in his testimony as is required by law. No serious point is made that the State did not introduce sufficient evidence to justify a conviction of appellant as to the statements made with reference to the whereabouts of Claude McGee on the afternoon of that day. However, since the jury was authorized to convict appellant on the evidence as to the whereabouts of Claude McGee after six P.M. on said day, the record must contain corroborating evidence, as required by law, of the witness testifying for the State upon that point. The evidence disclosed that Carlton was shot and killed on May 8, 1935, at about nine P.M., when he and his family returned home. Claude McGee and others were charged with the murder. McGee was convicted. Appellant testified that his brother Claude was home in Cape Girardeau playing cards with him on that night from six to nine P.M.

Ira Collins, witness for the State, testified that he saw Claude McGee on the afternoon of that day, when Claude and John Manor arranged with him to take them on a trip that night. Note this witness's testimony:

"A. They came out to my house in the afternoon — they had paid me to make two trips before that, one to the CCC camp and the other one to some of his kinfolks near East Prairie, and they wanted me to take them down in the country about sixteen miles to collect some money, and that is how come me to go by; Manor lived about two miles from my house and he asked me would I come by his house and save him that walk."

Ira Collins was corroborated as to this evidence by a witness named Jack Burroughs, who testified as follows:

"A. We stopped at the Robinson Lumber Company and McGee and...