State v. Nelson

• Decision Date: 15 November 1898
• Citation: 146 Mo. 256,48 S.W. 84
• Parties: STATE v. NELSON.
• Court: Missouri Supreme Court

48 S.W. 84

146 Mo. 256

STATE v. NELSON.

Supreme Court of Missouri, Division No. 2.

November 15, 1898.

PERJURY — INDICTMENT — SUFFICIENCY.

1. An indictment for perjury averring that "at the May term of the circuit court of Newton county, before Hon. J. C. Lamson, judge of the Twenty-Fourth judicial circuit of the state of Missouri, and ex officio judge of the Newton county circuit court, a certain issue came on to be tried in due form of law, the said court then and there having competent authority in that behalf," etc., sufficiently charges the court, under Rev. St. 1889, § 3671, providing that it is sufficient to state by what court the oath was taken, averring it to have competent authority to administer the same, without setting forth any commission or authority of the court.

2. An indictment for perjury need not aver a joinder of issue in the cause in which the alleged perjury was committed to sufficiently charge the issue therein.

3. An indictment for perjury averred that an action was pending against a railroad company for damages caused by its unlawful construction of a railroad across a natural stream at a point near which plaintiff's grain was situated, so as to obstruct the waters and cause the stream to overflow and destroy plaintiff's crops, and that it was a material question whether the stream was a natural water course, whether water at all times flowed through it, and whether at normal stages there was a living stream in its channel; and that accused falsely testified in the action that the stream was not a natural water course, that he had seen it when it did not flow through its channel, and that at normal stages there was no living stream there. Held, that it sufficiently alleged that defendant's testimony was material, under Rev. St. 1889, § 3671, providing that the indictment need allege only that the testimony was material to the issue named, without stating the particular facts showing its materiality, and this notwithstanding it might appear that no one sufficiently intelligent to be sworn would swear that the water course named is not a natural living stream.

Appeal from circuit court, Newton county; J. C. Lamson, Judge.

A. M. Nelson was indicted for perjury, and moved to quash the indictment. The motion was sustained, and the state appeals. Reversed.

Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State. George Hubbert, for respondent.

GANTT, P. J.

At the May term, 1897, the grand jury of Newton county returned the following indictment: "The grand jurors of the state of Missouri, impaneled, sworn, and charged to inquire within and for the body of the county of Newton, in the state aforesaid, upon their oath present and charge that heretofore, to wit, at the May term of the circuit court of the county of Newton aforesaid, on the _____ day of May, A. D. 1897, at the county aforesaid, before Hon. J. C. Lamson, judge of the Twenty-Fourth judicial circuit of the state of Missouri, and ex officio judge of the Newton county circuit court, a certain issue between one E. S. Kenney and the Kansas City, Pittsburg & Gulf Railroad Company, a corporation, for damages alleged to have been caused by said railroad company in unlawfully building and constructing its road across a part of a natural stream of water, viz. that part of said Shoal creek known as `Cogswell's Slough,' at a point near which plaintiff's corn and wheat were situate, in said county, in such a manner as to entirely obstruct the waters of said stream, thereby overflowing and damaging the crops of the said E. S. Kenney, wherein the said E. S. Kenney was plaintiff, and the said Kansas City, Pittsburg & Gulf Railroad Company was defendant, came on to be tried in due form of law, the said court then and there having competent authority in that behalf; and the said issue was then and there tried by a jury of the county in that behalf, duly sworn and taken between the parties aforesaid: upon which said trial one A. M. Nelson then and there appeared as a witness for and on behalf of the said Kansas City, Pittsburg & Gulf Railroad Company, defendant in the action aforesaid, and was then and there duly sworn and took his oath before the said court, which said oath was then and there duly administered to the said A. M. Nelson, by one D. W. Tuder, who was then and there clerk of said court, having full power and competent authority to administer the said oath to the said A. M. Nelson in that behalf, that the evidence which he, the said A. M. Nelson,...