State v. Thornton

• Decision Date: 13 November 1912
• Citation: 150 S.W. 1048,245 Mo. 436
• Parties: STATE v. THORNTON.
• Court: Missouri Supreme Court

150 S.W. 1048

245 Mo. 436

STATE v. THORNTON.

Supreme Court of Missouri, Division No. 2.

November 13, 1912.

1. CRIMINAL LAW (§ 3939—CONFESSIONS.

Evidence involuntarily given before a grand jury is not admissible to prove any crime theretofore committed by the witness giving such evidence, as a violation of Const. art. 2, § 23, prohibiting compelling accused to testify against himself.

2. PERJURY (§ 37)—INSTRUCTIONS—PROOF.

An instruction in a perjury case that the jury should not convict unless the falsity of the statement by accused was proven by the testimony of two credible witnesses, or one credible witness and corroborating circumstances proven by other credible witnesses, was erroneous for failing to charge that the false statement relied on must be proven by at least one credible witness aside from admissions by accused.

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

Henry Thornton was convicted of perjury, and he appeals. Reversed and remanded.

Defendant was convicted in the circuit court of Boone county of the crime of perjury, and appeals.

The offense of which defendant stands convicted is alleged to have been committed about April 4, 1911, during an investigation by the grand jury of Boone county to ascertain if illegal sales of intoxicating liqnom had taken place in that county. After being summoned before the grand jury and sworn by its foreman, defendant was asked if he "purchased any whisky from R.. I. Woodard in Columbia, Mo., during the last 12 months." To this question defendant replied: "I have not bought any whisky since Dr. Conway was a duly licensed physician, and then on prescriptions given by him." This answer was committed to writing and signed by the defendant. By other witnesses it was shown that Dr. Conway's license to practice medicine was revoked in May, 1910 (about 11 months before defendant was summoned before the grand jury). After giving the above-recited evidence, defendant was temporarily excused, with directions to come before the grand jury again when requested to do so. About four days later said grand jury again called defendant as a witness, and by propounding further questions, and admonishing him that he had "better make a clean breast of it and come across," succeeded in securing from defendant the following additional statement, which was also committed to writing and signed by him: "On the evening of about March 18th, 1911, I bought two quarts o:!: whisky from Woodard's drug store. I gave $3.00 for the two quarts. Mr. Woodard waited on me. I had no prescription for whisky. He did not ask me for prescription. Henry Thornton." Four witnesses testified that on March 18, 1911, they gave defendant $3 with which to purchase whisky for them, and that he brought them two quarts of whisky, and requested them "not to blow it on him" if they were summoned before the grand jury. One other witness testified that he procured whisky through defendant in the same manner less than one year before the grand jury investigation. Defendant did not testify as a witness in this cause. Within less than an hour after the defendant appeared before the grand jury the second time, an indictment was returned charging him with committing perjury during his first examination by swearing that he had not bought any whisky "since Dr. Conway was a duly licensed physician, and then on prescription given by him." Defendant was tried and convicted on this indictment.

Harris & Finley, of Columbia, for appellant. Elliott W. Major, Atty. Gen., and John M. Dawson, Asst. Atty. Gen., for the State.

BROWN, P. J.

(after stating the facts as above). To secure a reversal, it is urged that the trial court erred in admitting on the part of the state defendant's testimony as written and signed when he was called before the grand jury the second time.

The defendant contends that said statement so introduced was not voluntarily made, and that its admission amounted to a violation of his constitutional rights, in that it compelled him to testify against himself, as prohibited by article 2, § 23, Constitution of Missouri of 1875. Objection was made to the introduction of said statement on that ground, and exception duly saved when it was admitted. In the case of State v. Young, 119 Mo. loc. cit. 520, 24 S. W. 1045, it was held by this court: "The Constitution means more than the protection of the accused on his final trial when his rights are scrupulously guarded by the courts. It as clearly protects him from being forced to testify against himself in any and all preliminary investigations, whether before the coroner, grand jury, or the justice on his preliminary examination. The immunity afforded him by the Constitution is broad enough to protect him against self-crimination `before any tribunal, in any proceeding'"—citing Connselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. 195, 35 L. Ed. 1110; Cullen v. Commonwealth, 65 Va. 624; State ex rel. v. Hardware Co., 109 Mo. 118, 18 S. W. 1125, 15 L. R. A. 676. The doctrine announced in the Young Case has been generally followed by this court. State v. Naughton, 221 Mo. 398, 120 S. W. 53; State v. Lehman, 175 Mo. 619, loc. cit. 628, 75 S. W. 139, and cases therein cited. In the latter case the doctrine is announced that, while one guilty of a crime may refuse to answer questions propounded to him by a grand jury if truthful answers to such questions would tend to criminate him, yet, if he does testify, he must speak truthfully, or subject himself to the pains and penalties of perjury. In the same case the further doctrine is announced that if the accused does testify before the grand jury, and his answers tend to show him guilty of the crime then under investigation, such answers are not admissible against him when he is indicted and placed on trial for the offense. 175 Mo. 628, 75 S. W. 139....