The State v. Carter

• Decision Date: 25 June 1926
• Parties: The State v. John W. Carter, Appellant
• Court: Missouri Supreme Court

285 S.W. 971

315 Mo. 215

The State v. John W. Carter, Appellant

Supreme Court of Missouri

June 25, 1926

Appeal from Daviess Circuit Court; Hon. Arch B. Davis, Judge.

Reversed.

John H. Taylor, L. W. Reed and Thos. H. Hicklin for appellant.

The demurrer to the evidence should have been sustained. The cause should not have been submitted to the jury. A conviction upon proof of contradictory statements, made by defendant, he not being under oath, prior to the time of the alleged perjury, cannot stand, there being no other evidence to establish the truth or falsity of defendant's testimony. State v. Hunter, 181 Mo. 338. Or even where the contradictory statements were made under oath. State v. Williams, 30 Mo. 368. To show that this is not only the law of Missouri, but is the law of practically every other jurisdiction we refer the court to the exhaustive note beginning at page 58 of L. R. A. 1917 C.

North T. Gentry, Attorney-General, and J. Henry Caruthers, Assistant Attorney-General, for respondent.

The court properly refused appellant's demurrer offered at the close of all the evidence, as there was ample evidence of his guilt. State v. Hascall, 226 S.W. 21; State v. McKenzie, 177 Mo. 717; State v. Hunter, 181 Mo. 334; State v. Hardiman, 277 Mo. 231.

OPINION

Blair, J.

Appellant was convicted of perjury. From his sentence of imprisonment for a term of two years in the penitentiary, an appeal was granted to this court.

Only a brief statement of facts is necessary. One Jess Rader was put upon his trial in the Daviess County Circuit Court for the crimes of burglary and larceny. Appellant was sworn and examined as a witness on behalf of the State at that trial. The evidence only tends to show that, prior to the time of the Rader trial, appellant had made written and oral statements concerning the occurrence of acts and the making of statements by Rader strongly pointing to Rader's guilt of the crime for which he was then on trial. We do not deem it necessary to an understanding of the questions to be here decided to go into particulars concerning the nature of such statements.

When appellant was examined as a witness in the Rader case, he suffered a severe lapse of memory as to all acts and statements of Rader which would have constituted damaging evidence of Rader's guilt. The fact that appellant made the statements in question to the prosecuting attorney and others prior to the Rader trial was conclusively established. Appellant offered no testimony in his own behalf and stood upon his demurrer to the evidence offered by the State.

As suggested by the foregoing brief sketch of the facts, the main question presented here is the sufficiency of the evidence to support the verdict returned by the jury against the appellant. The facts which were material in the trial of Rader, so far as appellant's testimony was concerned were the acts and admissions of Rader and not what appellant had stated that such acts and admissions were. If appellant willfully testified falsely concerning those acts and admissions, he was guilty of perjury, because such acts and admissions were material in Rader's trial. To convict appellant of perjury as a witness upon the Rader trial, it was necessary to offer corroborative evidence in the case at bar tending to show that Rader actually made such statements to appellant and really did the acts referred to and that appellant knowingly and willfully testified falsely in respect to the occurrence of such acts and the making of such admissions. It was not sufficient to prove only that appellant made statements concerning such acts and admissions contradictory to his testimony when sworn and examined as a witness in respect thereto.

In State v. Hunter, 181 Mo. l. c. 337, it was said:

"What is meant by corroborative evidence is said to be aliunde evidence which tends to show the perjury independent of the prisoner's declarations or admissions. [State v. Buckley, 18 Ore. 228; Gabrielsky v. State, 13 Tex.App. 428; 2 Wharton's Criminal Law (10 Ed.) sec. 1319.] Schwartz v. Commonwealth, 27 Gratt. 1025, is a well considered case and announces the same doctrine.

"In Greenleaf on Evidence (16 Ed.) sec. 259, it is said: 'If the evidence adduced in proof of the crime of perjury consists of two opposing statements of the prisoner, and nothing more, he cannot be convicted, for if one only was delivered under oath, it must be presumed, from the solemnity of the sanction, that that declaration was the truth and the other an error or a falsehood; though the latter, being inconsistent with what he has sworn, may form important evidence, with other circumstances, against him.'

"Previous contradictory statements, made with or without oath, may be very important evidence, in connection with other circumstances against the accused; but, no matter by how many witnesses the different and conflicting statements may be proved, that is not corroborative proof of the corpus delicti. [...