State v. Swisher

• Decision Date: 13 July 1953
• Docket Number: No. 43257,43257
• Citation: 364 Mo. 157,260 S.W.2d 6
• Parties: STATE v. SWISHER.
• Court: Missouri Supreme Court

Page 6

260 S.W.2d 6

364 Mo. 157

STATE v. SWISHER.

No. 43257.

Supreme Court of Missouri, en Banc.

July 13, 1953.

Hobson Hoar, Melvin J. Duvall, St. Joseph (Henry R. Gannan, St. Joseph, on the brief), for appellant.

J. E. Taylor and John M. Dalton, Attys. Gen., James W. Faris, W. Brady Duncan and W. Don Kennedy, Asst. Attys. Gen., for respondent.

DALTON, Judge.

Defendant was tried and convicted of perjury and sentenced to two years imprisonment in the state penitentiary. Sections 557.010 and 557.020. All section references herein are to RSMo 1949 and V.A.M.S. He has appealed. The principal issue on appeal is the materiality of the matter as to which he swore falsely. Portions of a prior divisional opinion will be used without quotation marks.

The information charged that on or about March 24, 1951, there was pending before a certain magistrate, in Buchanan County, Missouri, 'a certain issue between the State of Missouri and Roy Swisher in a certain criminal action for petit larceny, wherein the said State of Missouri was plaintiff and the said Roy Swisher was defendant'; that defendant 'then and there appeared as a witness for, and on behalf of himself'; that defendant was duly sworn 'that the evidence which he, the said Roy Swisher, should give to the court there touching the matter then in question between the said parties, should be the truth, the whole truth and nothing but the truth; and that, at and upon the trial of the said issue so joined between the parties aforesaid, it then and there became and was a material question whether the said Roy Swisher had ever been convicted of a felony'; and that defendant had feloniously, wilfully, corruptly and falsely sworn: That he had not previously been convicted and sentenced for the following felonies (each of which was described): Once for possession of narcotics and once for grand larceny in Oklahoma state courts; once for sale of narcotics in a United States district court; and once for Cutting with Intent to Wound in a Nebraska state court; and, further, that he had never been 'sent down' for possession of narcotics, had never been convicted of carrying narcotics or having anything to do with narcotics and had been in jail in Oklahoma only once, for petit larceny for a term of 30 days.

The state's evidence showed that on March 24, 1951, defendant was being tried in the said magistrate court for petit larceny, to wit, the theft of oats from the C. B. & Q. Railroad; that defendant offered himself as a witness; and that he was duly sworn, took the stand and testified in his own behalf. A transcript of defendant's testimony on cross-examination and redirect examination in the petit larceny case was identified, offered and received in evidence. Thereafter, by cross-examination of the state's witness, the defendant showed what his testimony had been on direct examination in that case. We shall review his testimony in the order in which it was given.

On direct examination defendant testified only that his name was Roy Swisher; that he lived at a certain street address and had lived there six years; that he had worked steady for the Union Pacific Railroad for the last seven years; and that he was 'a man of family.' He was not asked whether he stole the oats.

Upon cross-examination, the assistant prosecuting attorney asked: 'Q. Mr. Swisher, did you take this grain?' Defendant's attorney made this objection: 'Your Honor, I object to that. His cross-examination must be confined to the questions I have put to him.' The objection was sustained. The assistant prosecuting attorney then said: 'Q. All right then. You say you have a family? A. That's right. Q. How many times have you been convicted of a crime, Mr. Swisher?' Defendant's attorney's objection ('cross-examination must be limited to the questions I put to him,') was overruled. The assistant prosecuting attorney stated: 'I can impeach his testimony if I want to by showing he has previous convictions.' Defendant then answered the question (as to how many times he had been convicted of a crime), 'About twice.' Then followed this cross-examination:

'Q. Were you convicted and served time in Enid, Oklahoma, in 1924 for petit larceny and given 30 days in jail and fined $25.00? Do you remember that? A. Oh, yes.

'Q. Weren't you given a year in jail in 1927 in McAlester, Oklahoma, for possession of narcotics? A. No.

'Q. You were not? A. No. sir.

'Q. Were you ever given a year in jail for possession of narcotics? A. No. sir.

'Q. Never have. Were you given two years in the penitentiary at Jefferson City for grand larceny in 1929? A. I got that up here.

'Q. In Jefferson City you did that? A. Yes.

'Q. Did you do a year in jail in McAlester, Oklahoma, for grand larceny in 1935? A. No. sir.

'Q. Have you ever been in jail in Oklahoma? A. One time.

'Q. What for? A. Petit larceny. 30 days.

'Q. That's the only time you have been in jail in Oklahoma? A. That's all.

'Q. You have never been arrested and convicted of carrying narcotics or having anything to do with narcotics? A. No, sir.

'Q. Nowhere in the United States? A. No.

'Q. Were you given a year in the 'pen' in 1941 at Omaha, Nebraska, for assault to do great bodily harm? A. No.

'Q. You have never been arrested in Nebraska? A. No.

'Q. Never been convicted of any crime in Nebraska? A. No.

'Q. But you have been arrested and convicted in the State of Missouri? A. Oh, yes.

'Q. That's the only state you have been arrested or convicted of any crime? A. No, in Oklahoma.

'Q. Thirty days for petit larceny, and that's all? A. Yes, sir.

'Q. That is all.'

On redirect examination defendant testified:

'Q. You answered the questions about numerous crimes committed. You paid the penalty for those two crimes, did you? A. That's right. They tried them once. We're not trying them now.

'Q. Since that time have you been going straight? A. Absolutely.

'Q. Are you working for what company? A. Union Pacific Railroad.

'Q. Union Pacific Railroad. Did they ever find any complaint about your work? A. Never had a word with them until this came up here. * * *

'Q. You are the support of your wife and family? A. Nothing else; I have to be.

'Q. And you take care of them and have for the last seven years? A. That's right.

'Q. That's all. Witness excused.

In the instant perjury trial, the state put in evidence properly certified copies of the alleged convictions and sentences of defendant, as follows: On January 22, 1927, and October 25, 1927, possession of narcotics, one year each, confinement in Oklahoma State Penitentiary at McAlester; on November 11, 1930, grand larceny, one year, confinement in Oklahoma State Penitentiary at McAlester; on December 10, 1935, possession and sale of narcotics, eighteen months, confinement in Federal prison at Leavenworth, Kansas; on November 10, 1941, Cutting with Intent to Wound, one year, confinement in the Nebraska State Penitentiary at Lincoln.

Defendant did not testify in the instant trial and offered no evidence whatsover. His motion for a directed verdict of acquittal was overruled. He offered no instructions and objected to each of the seven given, all of which were given by the trial court of its own motion.

On this appeal defendant-appellant contends that the court erred in refusing to direct a verdict for him at the close of all the evidence, because his testimony denying the prior convictions did not concern a material matter in the trial of the petit larceny case and, therefore, that no case of perjury was made for the jury. Appellant's theory is that on direct examination in the petit larceny case he did not testify 'to any fact concerning his guilt or innocence of stealing the oats'; that his testimony concerned wholly immaterial matters not in issue in the case; that, by his testimony on direct examination, he did not put his credibility as a witness in issue, nor testify to any facts for which his testimony could be impeached or contradicted; that cross-examination as to prior convictions is proper only to affect the credibility of a witness or for impeachment purposes and can not affect the issue of guilt or innocence; that in this case his testimony on cross-examination denying the prior convictions was wholly incompetent, immaterial and improper; that it was wholly immaterial whether he was a credible witness or not or whether his direct testimony was true or false; that, since his credibility as a witness was not in issue and since his direct testimony on immaterial matters was not subject to impeachment, his testimony on cross-examination denying prior convictions was as to immaterial matters; and that the evidence in this case was wholly insufficient to sustain a conviction under the statute which penalizes false swearing as 'to any material matter'. Section 557.010.

We shall first review certain applicable constitutional and statutory provisions. Article 1, Section 19 of the Constitution of Missouri 1945, V.A.M.S., provides that no person shall be compelled to testify against himself in a criminal cause. Section 546.260 RSMo 1949, V.A.M.S., provides that 'No person shall be incompetent to testify as a witness in any criminal cause or prosecution by reason of being the person on trial or examination * * * but * * * shall be liable to cross-examination, as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case * * *.' Section 491.050 provides that 'Any person who has been convicted of a criminal offense is, notwithstanding, a competent witness; but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer.'

Appellant's position is that under these statutes neither a witness, nor a defendant in the capacity of a witness, may be cross-examined as to prior...