State v. Smith
| Decision Date | 09 February 1889 |
| Parties | THE STATE OF KANSAS v. WILLIAM C. SMITH |
| Court | Kansas Supreme Court |
Appeal from Kingman District Court.
PROSECUTION for perjury. The opinion states the facts.
Judgment reversed.
Strohm & Foley, for appellant.
Ashbaugh & Steck, for The State.
On the 2d day of December, 1887, William C. Smith appeared before the county attorney of Kingman county, and, under the provisions of § 25 of the prohibitory liquor law, made signed and swore to an affidavit charging one Ed. Maloy with selling intoxicating liquors, contrary to law, in the basement room of a building situated on lot number seven, Main street, in the city of Kingman, Kingman county. Maloy was subsequently arrested and tried for the alleged offense, on the 28th day of December, 1887. W. C. Smith was subpenaed on the part of the state, and testified in the case. Maloy was acquitted, and soon after, on account of the testimony given by him upon the trial, an indictment was found against him, charging him with the crime of perjury. At the September term of the court for 1888 the case was tried, and Smith was convicted, and sentenced to imprisonment at hard labor for the term of one year in the penitentiary, and also to pay all the costs of the prosecution. From the sentence and judgment he appeals.
Smith filed his motion to quash, upon the grounds that the indictment did not state facts sufficient to constitute a public offense, and also that the indictment contained matter which, if true, was a bar to any prosecution against him. This motion was overruled, and exceptions taken.
In our view of the case, nothing but the sufficiency of the indictment need be considered. It is well settled by the statute and the decisions that the false oath charged in the indictment or information must be in some material matter, or it will not be perjury. (Comp. Laws of 1885, ch. 31 §§ 148-153.) In this case, the indictment sets forth in full the information filed against Ed. Maloy for violating the provisions of the prohibitory liquor law, upon which he was tried December 28, 1887. This indictment contains three counts: two charging Maloy with making unlawful sales of intoxicating liquors in a building situate on lot seven, Main street, in the city of Kingman; the third charging him with keeping and maintaining a common nuisance on said lot seven,...
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...See State v. Frames, 213 Kan. 113, 119, 515 P.2d 751 (1973); State v. Elder, 199 Kan. 607, 608, 433 P.2d 462 (1967); State v. Smith, 40 Kan. 631, 632, 20 P. 529 (1889). Also, the pattern instruction for perjury, PIK Crim.3d 60.05, also provides that the false representation be on a material......
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State v. Rollins
...citing State v. Frames, 213 Kan. 113, 119, 515 P.2d 751 (1973); State v. Elder, 199 Kan. 607, 433 P.2d 462; and State v. Smith, 40 Kan. 631, 632, 20 P. 529 (1889). It observed that each of these cases stated that materiality was a question of law to be determined by the judge. Rollins, 24 K......
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