State v. Mooney

• Decision Date: 31 October 1877
• Citation: 65 Mo. 494
• Parties: THE STATE v. MOONEY, APPELLANT.
• Court: Missouri Supreme Court

65 Mo. 494

THE STATE

v.MOONEY, APPELLANT.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Andrew Circuit Court--HON. H. S. KELLY, Judge.

William Heren for appellant.

Where a party has sworn contrary ways at different times, it must be expressly charged and shown in such case which was the false oath and on which occasion he swore willfully, falsely and corruptly.

Wharton's Prec. (Perjury) 577, 578, 926.

J. L. Smith, Attorney General, for the State.

It is not necessary to constitute the crime of perjury that the evidence given should be material to the matter before the court; it is sufficient if it be material to any collateral matter or inquiry. State v. Lavalley, 9 Mo. 824.

HENRY, J.

We think the indictment good, both in form and substance, and that it is distinctly alleged therein, that the perjury was committed on the trial of the cause between the parties, in the Justices' Court on the 29th day of August, 1873.

1. PERJURY Material issue: Conflicting testimony on different trials.

Whether or not the item of thirteen and one half bushels of wheat was embraced in the account which was the foundation of the suit tried on the 9th of August, 1873, between defendant and Henry C. Wright, is of no consequence, for if he testified in a suit in which it was immaterial that he did not owe the wheat, and afterwards in another suit it became a material question whether he owed the wheat, and he then testified that he did not on the former trial testify that he owed it, he committed perjury, if on the latter trial, he so testified willfully and corruptly, because his testimony in regard to what he formerly testified was then relevant and material. If he had made that statement, not under the sanction of an oath, and afterwards on the trial of a cause in which it became a material question whether he had made such statement, willfully and corruptly testified that he made no such statement, he would have been guilty of perjury.

2. ACTION; contract, demand.

The court, in its instructions, properly declared the law to the jury. The only one asked by defendant and refused by the court was his fourth instruction, in which he asked the court to declare: “That there was no proper count in said indictment upon which an assignment could be laid as to a demand of the wheat by Wright of the defendant, and no evidence before the jury that a demand of wheat by Wright from defendant was a material issue for trial between Wright and defendant.” The evidence tended to...