State v. Smith
| Decision Date | 08 April 1911 |
| Docket Number | 17,382 |
| Citation | 84 Kan. 646,114 P. 1074 |
| Parties | THE STATE OF KANSAS, Appellee, v. W. M. SMITH, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1911.
Appeal from Linn district court.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. PERJURY--Information--Prosecutor's Belief that Defendant Knew of Violation of Gambling Laws. In an information for perjury, committed in testifying before a justice of the peace in a proceeding under section 2732 of the General Statutes of 1909, it is not necessary to allege that the county attorney who subpoenaed the defendant to testify before the justice had reason to believe that the defendant knew of violations of the laws against gambling.
2. PERJURY--Variance--Allegations and Proof. In a prosecution for perjury it is sufficient if the proof conform substantially to the charge.
3. PERJURY--"Proceeding" -- Inquisition -- Violation of Gambling Laws. The procuring of testimony of one believed by the county attorney to have knowledge of violations of the gambling laws, by causing such person to appear before a justice of the peace under section 2732 of the General Statutes of 1909, is a "proceeding" within the meaning of the perjury statute (Gen. Stat. 1909 § 2640).
4. PERJURY--Instructions -- Duty of Judge -- Individual Duty of Each Juror. An instruction that before the jury can convict they must find the defendant guilty beyond a reasonable doubt, and that "a reasonable doubt is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they can not say that they feel an abiding conviction to a moral certainty of the truth of the charge; that is, to a certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it," is ordinarily a sufficient admonition as to the separate individual duty of each juror.
J. I. Sheppard, John O. Morse, and J. E. Latimer, for the appellant.
John S. Dawson, attorney-general, S. N. Hawkes, assistant attorney-general, Charles D. Shukers, special assistant attorney-general, and John A. Hall, county attorney, for the appellee.
The county attorney of Linn county, acting under section 2732 of the General Statutes of 1909 (Laws 1907, ch. 263, § 5), issued a subpoena for the appellant to appear before a justice of the peace and tell what he knew about the violation of the laws of the state relating to gambling. After being duly sworn by the justice the appellant testified that he had not participated in a crap game within the past two years and did not know of any persons who had done so; that the only dice he had seen on Sunday, October 24, 1909, was a pair he saw Ollie Brooks have, and that he told Brooks to throw them out in the street, which was done; that he was not present at any game where dice were used on Sunday, October 24, 1909, and was sure he did not see any other persons playing any game with dice or doing any gambling with dice on that day; that he was not present on that day where any other persons bet any money to be decided by the throw of dice in any manner; that he was sure he was not present at any place where any game was being played with dice on Sunday, October 24, 1909, near the so-called McCown rock quarry, or at any other place east of the St. Louis & San Francisco Railroad Company, north of Pleasanton, Kan. This testimony was given October 30, 1909. On January 10, 1910, the county attorney filed a complaint in a justice court charging the appellant with betting money and property upon the result of throwing dice, and upon the game of chance called shooting craps, in Linn county, on October 24, 1909. On the same day the appellant entered a plea of guilty to this charge. Afterward an information was filed in the district court charging the appellant with perjury in the testimony given before the justice on October 30, 1909, assigning several different false statements as having been willfully made by him therein. A motion to quash was denied, and upon the trial the state offered in evidence the testimony before the justice, the complaint and plea of guilty on the 10th day of January, 1910, and the testimony of a large number of witnesses.
At the close of its evidence the state elected to rely for conviction upon the alleged falsehood that the appellant was not present at any point near the so-called McCown rock quarry, east of the St. Louis & San Francisco railroad track, north of Pleasanton, in Linn county, on October 24, 1909, where any person or persons were engaged in playing the gambling game called shooting craps, and upon certain exhibits and the testimony of certain named witnesses.
The court instructed the jury, among other things, that "a reasonable doubt is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they can not say that they feel an abiding conviction to a moral certainty of the truth of the charge." The appellant requested the court to instruct that "in order to find a verdict of guilty it is necessary that each one of the jurors, after considering the evidence and conferring with other members of the jury, be satisfied beyond a reasonable doubt of the truth of every material allegation of the information," which instruction was refused. A motion for a new trial was denied.
The appellant complains that the trial court erred in denying his motion to quash, on the ground that the information did not charge a public offense and on the ground that it was bad for duplicity; in the admission of certain evidence; in denying the appellant's motion to direct a verdict of not guilty; in refusing and giving certain instructions, and in denying motions for a new trial and in arrest of judgment.
The information is very full and complete and satisfies even all the technical common-law requirements, and is not bad for duplicity, because the various assignments of perjury all occurred at one time and in one proceeding. The appellant made and signed the testimony at one sitting, and it is much the same as an affidavit.
It is urged that the information is bad for failure to state that when the county attorney issued his subpoena for the appellant to appear before the justice he, the county attorney, had reason to believe that the defendant knew of violations of the laws against gambling. It is argued that unless the county attorney had reason so to believe he was not authorized by the statutes to proceed, and that otherwise the proceeding would be ultra vires and void. Section 2732 of the General Statutes of 1909 (Laws 1907, ch 263, § 5) provides that if the county attorney shall be notified by any officer or other person or shall have knowledge of any violation of the laws of this state relating to gambling it shall be his duty forthwith diligently to inquire into the facts of such violation, and for that purpose he is authorized to cause subpoenas to be issued for such persons as he shall have reason to believe have any information or knowledge of such...
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State v. Price, 47370
...of those who are bound to act conscientiously upon it.' An instruction in essentially the same language was approved in State v. Smith, 84 Kan. 646, 114 P. 1074. The trial court instructed on proof beyond a reasonable doubt in the following 'As you have been instructed, before you can find ......
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State v. Craig
...perjury at a preliminary hearing because a preliminary hearing is a legal proceeding under the perjury statute. See State v. Smith, 84 Kan. 646, 652, 114 P. 1074 (1911) ; Butler v.. State, No. 93,564, 2006 WL 399141, at *8 (Kan.App.2006) (unpublished opinion) (noting that witness had been g......