State v. Mitchell
| Decision Date | 31 December 1924 |
| Docket Number | 25608 |
| Parties | STATE v. MITCHELL |
| Court | Missouri Supreme Court |
Hiett & Impey, of Houston, and Lorts & Breuer, of Rolla for appellant.
Jesse W. Barrett, Atty. Gen., and George W. Crowder, Asst. Atty Gen., for the State.
WALKER, J., absent.
The appeal is from a judgment upon conviction, April 24, 1923, in the circuit court of Texas county, of perjury.
The appellant was the father of one Harrison Mitchell, who was tried at the April term, 1922, in the circuit court of Texas county on a charge of murder. The defendant in this case, John W. Mitchell, is charged with having committed perjury while a witness on the trial of his son. The charge against Harrison Mitchell was that he murdered one Patrick King, November 30, 1921. The homicide took place in King's store. On that day one Andrew O'Malley held, near the King store, a public sale which was attended by a number of people. It is claimed by the state that the appellant, John Mitchell, was present at the sale, assisting O'Malley, and, at the time King was shot, was in O'Malley's barn, some distance from King's store, examining the notes and settlements accruing at the sale, and was not in position to see the affray in which King was shot. Appellant testified at the trial of Harrison Mitchell that he was in the store and saw all that took place and described minutely the circumstances under which King was shot.
An amended information upon which the trial was had sets out that on a certain day of April, in Texas county, the case of State of Missouri v. Harrison Mitchell was pending and on trial on information preferred by the prosecuting attorney of Texas county, with other formal matters affecting the pendency of the action and the proceeding of the trial; the appearance of John W. Mitchell as a witness, and his being sworn in due form; that he was a material witness in the case, and that Patrick King was killed by Carl Mitchell with a pistol taken from the pocket of Harrison Mitchell; that it was a material question whether Harrison Mitchell or Patrick King fired the first shot, and whether or not King and Carl Mitchell fired all the shots that were fired in the difficulty, and other matters of detail illustrating those facts; that John Mitchell falsely swore that at the beginning of the difficulty he was near the east front door of the building at which the shooting occurred, and saw the beginning of it; that he went into the store building and was in it during all the time that all the shots were fired, and knew who fired them; that he saw Carl Mitchell take a pistol from the pocket of Harrison Mitchell and put it in his own pocket -- in the pocket of Carl Mitchell -- and that thereafter Patrick King fired two shots at Harrison Mitchell before any other shots were fired; that Patrick King and Carl Mitchell fired all the shots that were fired; that Harrison Mitchell fired no shots and had no pistol in his hand at any time during the difficulty.
The information then negatives the statements alleged as sworn to, in detail, that John W. Mitchell gave such testimony well knowing that he was not in the building and did not see the things sworn to, and well knowing that the said evidence given by him was false; that in truth and in fact John W. Mitchell was not in or near the building, and could not and did not see the beginning of the difficulty and did not and could not see who fired the shots that were fired at the time, and did not and could not see Carl Mitchell take the pistol from the pocket of Harrison Mitchell, etc.
Thus briefly is stated the contents of the information which is of some length and avers with great particularity all jurisdictional facts touching the matter, the facts sworn to by John W. Mitchell as a witness with knowledge of the falsity of his testimony, the actual facts in the case, and allegations negativing the facts sworn to. Evidence was offered by the state to prove all the allegations of the information, and on that evidence the jury found the appellant guilty as stated.
I. Before the trial appellant filed a motion to quash the information on the ground that it contained assignments of perjury not included in the information filed before the justice of the peace, on which the preliminary was had, and defendant was therefore not allowed a preliminary on some of the assignments charged. The affidavit filed by the prosecuting attorney, before the justice of the peace, in effect states, in briefer form, all the facts stated in the information upon which the trial was had, the only difference being that the information filed in the circuit court states the facts with greater particularity. Both the preliminary affidavit and the final information stated facts sworn to by the appellant, as to his position and his knowledge of the occurrences which took place during the affray, the falsity of his statement, his absence from the place, and his inability to see what occurred. The preliminary information was entirely sufficient, therefore,...
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