State v. Richardson

• Citation: 248 Mo. 563,154 S.W. 735
• Parties: STATE v. RICHARDSON.
• Decision Date: 12 March 1913
• Court: United States State Supreme Court of Missouri

154 S.W. 735

248 Mo. 563

STATE v. RICHARDSON.

Supreme Court of Missouri, Division No. 2.

March 12, 1913.

1. PERJURY (§ 36) — SUBORNATION OF PERJURY — ISSUES.

In a trial for subornation of perjury in an assault case, questions as to the jurisdiction of the court which tried the assault case, as to the authority of the officer who administered the oath to the suborned witness, and as to the materiality of his testimony are questions of law and not of fact; and hence it is not error to fail to submit them to the jury.

2. CRIMINAL LAW (§ 780) — INSTRUCTIONS — "ACCOMPLICES" — SUBORNATION OF PERJURY.

In a trial for subornation of perjury, the suborned witness cannot be regarded as accused's accomplice within the rule which requires an instruction that the testimony of an accomplice should be received with caution.

For other definitions, see Words and Phrases, vol. 1, pp. 75-79; vol. 8, p. 7561.]

3. PERJURY (§ 13) — "SUBORNATION OF PERJURY" — ELEMENTS.

To convict of subornation of perjury, it must appear that the suborned witness committed the willful and corrupt perjury alleged in the information, and that accused procured the witness to commit it.

For other definitions, see Words and Phrases, vol. 7, p. 6720.]

4. PERJURY (§ 34) — SUBORNATION OF PERJURY — CORROBORATION OF WITNESS — NECESSITY.

The rule that one cannot be convicted of perjury on the uncorroborated testimony of a single witness does not apply to subornation of perjury.

5. PERJURY (§ 27) — SUBORNATION OF PERJURY — INFORMATION — SUFFICIENCY.

An information charging that accused willfully, feloniously, maliciously, falsely, and corruptly persuaded, incited, procured, and suborned willful and corrupt perjury, etc., is not insufficient as failing to charge that accused knew that the witness would swear falsely.

6. PERJURY (§ 38) — SUBORNATION OF PERJURY — VERDICT — SUFFICIENCY.

A general verdict convicting of subornation of perjury is not insufficient for failing to determine which assignment of perjury accused was found guilty of suborning, where the information charges but one offense, though it specifies several false and perjured statements.

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

William E. Richardson was convicted of subornation of perjury, and he appeals. Affirmed.

On November 9, 1911, defendant was tried and convicted of the crime of subornation of perjury in the circuit court of the city of St. Louis, and his punishment assessed at seven years in the penitentiary. From the judgment and sentence he appeals to this court.

The information charges the defendant with having willfully, feloniously, maliciously, falsely, and corruptly persuaded, incited, procured, and suborned one Byrd D. Harris to do and commit willful and corrupt perjury by testifying as he did in a case tried on the 12th day of October, 1911, wherein the state of Missouri was plaintiff and this defendant was defendant; the said defendant therein being charged with assault with intent to kill one George Lewis. The information then sets forth all the formal requirements, and specifically sets out the testimony which the witness Harris is alleged to have given at said trial.

The evidence for the state tends to show that on the 12th day of October, 1911, the said felonious assault case was tried in the circuit court of the city of St. Louis; that upon the trial of said cause said Byrd D. Harris was duly sworn and examined as a witness in said cause, and testified to the effect that he had seen the trouble, occurring July 18, 1911, between the defendant and one George Lewis, and that while he was going west on the north side of Lawton avenue, in the city of St. Louis, that day, he saw the defendant come out of his place of business, and go towards a ladder which was leaning against the wall, and that, just as the said defendant was about to take hold of said ladder and lift it, the said Lewis took a knife out of his pocket, and, with the knife held open in his hand, advanced upon Richardson; that thereupon Richardson stepped back and fired one shot to the side of Lewis; that thereupon Lewis stepped back three or four feet, but again started towards Richardson, making an attempt to cut Richardson with the knife, and that in this situation Richardson fired two shots at Lewis, one of which hit Lewis in the body. The state produced several witnesses, who testified, in substance, that they had seen the shooting of Lewis by Richardson on July 18, 1911, and that Lewis did not have an open knife in his hand, nor advance upon Richardson at any time, and, further, that there were only two shots fired by the defendant, Richardson, and that the first shot fired was the one that hit Lewis. All of these witnesses swore that they did not see Harris in that neighborhood on that occasion; some of the witnesses stating that they would not swear positively that he was not there, and others that they had such a view of the situation that, if he was there at the time, they would have seen him. The state then called the said Byrd D. Harris as a witness, this being the witness the defendant is charged with suborning, and Harris testified at the trial of this case that the testimony given by him at the felonious assault trial was false, and that he had not seen the shooting of Lewis by Richardson on July 18, 1911. He further testified that the defendant had hired him to testify as he did in the assault case, agreeing to give him $4 if he would so testify; that he went to the courthouse to be used as a witness; that the case was continued for a day or so; that the defendant told him to be sure and come back, and "not throw him down"; and that he gave his testimony upon the request and at the direction of defendant, and for the promise of the price offered.

Defendant was the only witness offered by the defense. He testified in his own behalf, denying that he had agreed to pay witness Harris for his testimony, or that he had induced him to swear falsely. Defendant further testified that some time prior to the assault trial he met Harris on Jefferson avenue, and that there Harris informed him that he had seen the shooting, whereupon he told Harris that he "would like for him to come down and make a statement to that effect," and that Harris agreed to do so. He claims he did not see Harris again until the Monday before the trial, which occurred on Thursday, and that on said Monday he asked Harris why he had not come to court that morning, it being the day on which the case was originally set for trial, and that he then informed Harris that the case was continued until Thursday, and asked him to come to court on Thursday; that Harris said that he did not think he could spare the time to come, and that he could not afford to lose all of that time for nothing; that he then told Harris that he would get witness fees for four days; and that would be $4. Defendant further testified that, when Harris first told him that he saw the shooting, he did not ask Harris what he saw because he was not interested in what he saw, and that he did not know what the witness would testify to until the morning the case was tried, at which time, he claims, the witness told him about the same facts as he later testified to. Appellant is not represented by counsel here; neither has he filed a brief in this court.

We have carefully inspected the record and proceedings at the trial, and find no questions for discussion other than the following: In the motion for new trial complaint is made that the court failed to fully instruct on all the law of the case, in that the court failed to require the jury to find (1) that the trial at which the perjury was committed was before a court of competent jurisdiction; (2) that the officer who administered the oath was duly authorized to administer oaths; (3) that the false evidence of witness Harris was material to the issues involved in the assault case; (4) that Harris was an accomplice of defendant, and that his evidence should be received with caution; (5) that the witness testifying as to the perjury should be corroborated by some witness, or other facts and circumstances. In the motion in arrest of judgment complaint is made (1) that the information is insufficient, because it fails to charge that defendant knew the witness, Harris, would swear falsely; (2) that the verdict is insufficient in law to support the judgment, because it is a general verdict, and does not determine which assignment of perjury the defendant was found guilty of suborning the witness to commit.

William E. Fish, of St. Louis, for appellant. Elliott W. Major, Atty. Gen., and Ernest A. Green, Asst. Atty. Gen., for the State.

WILLIAMS, C. (after stating the facts as above).

1. The questions of the competency of the jurisdiction of the court which tried the assault case, of the authority of the officer administering the oath to witness Harris in the assault case, and of the materiality of the testimony of said witness to the issues involved in said assault case were each and all questions of law, and not of fact, and it was therefore not error to fail to submit such questions to the jury for determination. State v. Williams, 30 Mo. 364; State v. Fannon, 158 Mo. 149, 59 S. W. 75; State v. Faulkner, 175 Mo. loc. cit. 617, 75 S. W. 116.

2. Witness Harris was not an accomplice of the defendant in the contemplation of the rule of law which requires the court to instruct the jury that the evidence of an accomplice should be received with caution. In order to bring the testimony of the witness within that rule, the witness and the principal offender, or vice versa, must have worked together in committing the same crime. 1 Wharton, Crim. Ev. (10th Ed.) § 440. The crime committed by Harris was perjury, which was a separate and distinct offense from that of subornation of perjury, charged against the defendant, and, when this is true, they are not accomplices in contemplation of law, and...