State v. Schroeder

• Decision Date: 13 July 1968
• Docket Number: No. 45271,45271
• Citation: 201 Kan. 811,443 P.2d 284
• Parties: The STATE of Kansas, Appellee, v. Floyd SCHROEDER, a/k/a Henry Floyd Schroeder, Appellant.
• Court: Kansas Supreme Court

Page 284

443 P.2d 284

201 Kan. 811

The STATE of Kansas, Appellee, v. Floyd SCHROEDER, a/k/a Henry Floyd Schroeder, Appellant.

No. 45271.

Supreme Court of Kansas.

July 13, 1968.

Rehearing Denied Aug. 16, 1968.

Syllabus by the Court

In an appeal from a conviction of perjury, the record is examined and, as set forth in the opinion, it is held: (1) The trial court did not err in overruling appellant's motion to squash the information, rulings on the admissibility or sufficiency of evidence, instructions to the jury, refusing to permit jurors to testify in impeachment of their verdict, or overruling motion for new trial; and (2) the judicial department reform act of 1965 does not violate any constitutional provision.

Eugene G. Coombs and Harry E. Robbins, Jr., Wichita, argued the cause and were on the brief, for appellant.

Robert Martin, Sp. Asst. Atty. Gen., argued the cause, and Robert C. Londerholm, Atty. Gen., Richard Seaton and J. Richard Foth, Asst. Attys. Gen., and Melvin M. Gradert, Sp. Asst. Atty. Gen., were with him on the brief, for appellee.

HARMAN, Commissioner:

Appellant Floyd Schroeder, a former county commissioner of Sedgwick county, was tried upon three counts of perjury (K.S.A. 21-701). He was acquitted on count one and convicted on count three. The jury failed to reach a verdict on count two. Upon count three his motion for new trial was overruled, he was sentenced to the penitentiary for a term not exceeding seven years and he has appealed.

Appellant's first specification of error is that the trial court erred in denying his motion to quash the information. To understand the contention better we should examine the charges contained in all three counts. Count one charged that appellant gave false testimony in the proceeding wherein he was ousted from office by this court as a result of his dealings with Sedgwick county as a vendor during his term of office (State ex rel. Londerholm v. Schroeder, 199 Kan. 403, 430 P.2d 304). The alleged perjured testimony in count one related to those transactions. Count two also charged the giving of false testimony in the ouster proceeding pertaining to the receipt by him of merchandise and money form Lewis Brothers Hardware Company and Theodore C. (Ted) Lewis, a partner in Lewis Brothers Hardware Company. Here it was charged appellant testified falsely when he said the only business dealings he had had with Lewis Brothers were the sale of his business, the receipt by him of $50.00 to $100.00 campaign donations each time he ran for office, and the purchase by him of a riding lawn mower, a tandem bicycle and a ladder installation job in his garage, for which latter items he paid.

Count three of the information dealt with appellant's earlier testimony before a grand jury, and was as follows:

'1. A Grand Jury was ordered drawn and summoned and was duly impaneled and sworn to attend, and did, in fact, attend the April, 1965 Term of the District Court of Sedgwick County, Kansas, in accordance with K.S.A. 62-901, et seq. On the 16th day of August, 1965, the defendant Floyd Schroeder, was present and testified as a witness before a regularly convened session of said Grand Jury. An oath was administered to the defendant by the foreman of the Grand Jury prior to questions asked and answers made by the defendant.

'2. Notwithstanding the oath administered as hereinabove alleged, said defendant did, in Sedgwick County, Kansas, within the jurisdiction of this Court, on the 16th day of August, 1965, in said Grand Jury proceeding and while under oath as alleged, willfully, feloniously, unlawfully, corruptly and contrary to said oath, testify to and state facts which were not true and which he knew were not true.

'3. The untrue testimony given by the defendant while under oath, at the time and place and in the proceedings described above, consisted of questions and answers, as follows:

"Q. Mr. Schroeder, have you ever had any business dealings of any kind with Ted Lewis other than buying items in his store for which you paid and for selling your fire equipment business to him, while you have been a County Commissioner?

"A. The only financial dealings I have ever had with the Lewis Bros. is to sell my business to them, and that is the only financial dealings I have ever had with any of the Lewis Brothers.

"Q. Have you ever received any money of any sort since you became County Commissioner from any of the Lewis Brothers?

"A. No, sir; nothing of any kind except from my business that I sold them.'

"Q. I want to discover if any such transaction, which you have knowledge of, which in any way constituted a transaction, whether with Ted or the three brothers or Ted directly, money or property changed hands?

"A. None to my knowledge in any way.'

'4. The untrue testimony given by the defendant as above set forth was material, relevant, and pertinent to matters under investigation by said Grand Jury and specifically the investigation by said Grand Jury into violations of law in connection with the expenditure of public funds and irregularities in the dishonest or criminal acts by county officers and persons who have done business with Sedgwick County as vendors in the expenditure of public funds and the sale and delivery of materials and supplies purchased by Sedgwick County.

'5. The testimony given by the defendant as above alleged was false and untrue and known to the defendant to be false and untrue in that the defendant Schroeder, did at various dates and times between January 9, 1961 and August 16, 1965, and while a County Commissioner of Sedgwick County, Kansas, receive and accept from a vendor to Sedgwick County, to-wit: Lewis Bros. Hardware Co. and Theodore C. Lewis, an employee or partner of Lewis Bros. Hardware Co., valuable personal property and money, without giving consideration or payment therefor.

'6. The defendant did willfully, unlawfully, feloniously and corruptly commit perjury, contrary to the terms and provisions of K.S.A. 21-701 in such cases made and provided, and against the peace and dignity of the state of Kansas.'

Appellant moved to quash counts two and three of the information because they failed to charge offenses with sufficient clarity and detail to inform him of the criminal acts with which he was charged to enable him to prepare his defense and to plead the judgment thereon as a bar to further proceedings against him for the same offenses.

He now contends count three was indefinite in stating the material issue to be determined, that it was defective because it did not contain all the testimony given by appellant before the grand jury and the portion quoted did not fairly reflect the meaning and import of the testimony given, and that the jury became confused as to the meaning of the terms 'business dealings' and 'transaction' and in fact convicted appellant of having legitimate business transactions which he admitted in his testimony in the grand jury proceeding, namely, receipt of campaign contributions.

Appellant bases his assertion of confusion on the part of the fury and resultant prejudice upon events occurring during the course of trial and thereafter. These were remarks by counsel for appellee in the opening statement to the jury to the effect that the same evidence would prove falsity of testimony with respect to counts two and three, remarks to much the same effect made by appellee's counsel upon argument of the motion for new trial and, principally, posttrial statements made by certain jurors which were attached to the motion for new trial, giving reasons for their verdict.

It is true there could have been some overlapping of evidence pertinent to the offenses charged in counts two and three, and that seems to have been the burden of the statements by counsel for appellee referred to above. Each count charged several particulars of false swearing, although in different proceedings in different tribunals. This is permissible pleading. In 2 Wharton's Criminal Law, 12th ed., § 1567, the rule is stated:

'All the several particulars, in which the prisoner swore falsely, may be embraced in one count, and proof of the falsity of any one will sustain the count.' (p. 1826.)

Our statutes, implementing our constitutional mandates that an accused is entitled to be informed of the nature of the charge against him, provide that an information shall state the facts constituting the offense in plain and concise language, without repetition, and that, regarding the party and the offense charged, the information must be direct and certain (K.S.A. 62-1004, 62-1005, 62-1010).

K.S.A. 21-706, dealing specifically with pleading perjury, provides:

'In any indictment for perjury it shall be sufficient to set forth the substance of the offense charged and by what court or before whom the oath was taken (averring such court or person to have competent authority to administer the same), together with the proper averments to falsify the matter wherein the perjury is assigned, without setting forth any part of the record, proceeding or process, or any commission or authority or the court or person before whom the perjury was committed, or the form of the oath or affirmation, or the manner of administering the same.'

This court dealt with the sufficiency of an information for perjury in State v. Kemp, 137 Kan. 290, 20 P.2d 499. There the court, after referring to 62-1005 and 62-1010 stated:

'The essence of the crime of perjury is that the person charged swore falsely * * *. In this instance, the Criminal Code itself has forbidden resort to the technicalities of common-law pleading in perjury cases. * * * (p. 293, 20 P.2d p. 501) The same provisions of the Criminal Code nullify the common-law rule that, besides showing falsity of what was sworn to, the pleading should go on and tell antithetically what the truth was. The whole purpose of the section of the bill of rights which requires that the defendant shall be allowed to demand the nature and...