The State v. Fannon
| Decision Date | 12 November 1900 |
| Citation | 59 S.W. 75,158 Mo. 149 |
| Parties | THE STATE v. FANNON, Appellant |
| Court | Missouri Supreme Court |
Appeal from Maries Circuit Court. -- Hon. T. B. Robinson, Judge.
Reversed and remanded.
Joseph J. Crites for appellant.
(1) The court and not the jury must determine whether the fact sworn to was material in the judicial proceeding in which the perjury is alleged to have been committed. An instruction therefore, which submitted this question to the jury was erroneous. The court should have declared to the jury what part of the alleged false oath was material to the questions pending before the justice. State v. Williams, 30 Mo. 364; State v. Higgins, 124 Mo. 640. (2) Under the numerous rulings of this court defendant was entitled to a plain and clear direction of their duty if they entertained a reasonable doubt of the defendant's guilt. State v Clark, 147 Mo. 22; State v. Gonce, 79 Mo. 600; State v. Gullette, 121 Mo. 447. The instruction asked was a proper one. State v. Clayton, 100 Mo 516; State v. Brooks, 92 Mo. 542; State v. Nueslein, 25 Mo. 111; State v. Vansant, 80 Mo. 67. While it is true that the term "reasonable doubt" was defined on instruction for the State, at no place was the jury told that if they entertained a reasonable doubt they should acquit. (3) It is a well-settled rule of evidence that a witness will be permitted to speak only of those facts of which he has a personal knowledge and recollection. He is at liberty, however, to refresh and aid his memory, if it is in fault, by consulting on the witness stand a writing or memorandum made by himself or some other person, if, after examination, he is able to testify from his own recollection thus renewed and revived. In this case the witness was not only permitted to refresh his memory, but to keep on reading from a paper, about which there was not the slightest evidence of making, by whom made nor the time of making, or anything in fact giving it even remote connection to the case. Underhill on Evid., sec. 337; 1 Greenl. on Evid., sec. 437; Bank v. Owen, 101 Mo. 554; Anchor Mill Co. v. Walsh, 37 Mo.App. 567; Robertson v. Reed, 38 Mo.App. 32. (4) It was grievous error on the part of the court to exclude the testimony of witness Nagley. The materiality of the witness's testimony for the defendant is shown plainly by the evidence. It was from the lips of this witness that the defendant expected to substantiate his claim against Love, yet for no fault of the defendant this very material evidence from this witness was not permitted to go to the jury. Underhill on Evidence, 467; 1 Wharton's Evidence, sec. 491; 2 Phillips on Evidence, 887; 2 Best, Evidence, sec. 636; O'Bryan v. Allen, 95 Mo. 68; Keith v. Wilson, 6 Mo. 435; Hubbard v. Hubbard, 7 Oregon 42; Hey v. Com., 32 Grat. 946; Davenport v. Ogg, 15 Kan. 363; Bell v. State, 44 Ala. 393; Roberts v. Com. (Ky.), 22 S.W. 845; State v. Thomas, 111 Ind. 516; Smith v. State, 4 Lea. (Tenn.) 428; Taylor v. State, 130 Ind. 66; State v. Ward, 61 Vt. 179; Cook v. State, 30 Tex.App. 607; Lassiter v. State, 67 Ga. 739; Pleasant v. State, 15 Ark. 624.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) Even admitting that it is the duty of the court to pass upon the materiality of the testimony before the justice of the peace, we fail to see where defendant could be prejudiced by having the question also submitted to the jury. The fact that the trial court passed upon the materiality of the testimony when the motion to quash the indictment was before him, is sufficient to excuse the defendant from being in anywise injured. To require the jury also to pass upon it and find it material was inviting less than a favor thrown at the feet of defendant to which he was not entitled under the law. It was the commission of an error in defendant's favor, and as to that he can take no advantage. This court has so held in all cases where such error has been indulged. The court having found the statements to be material, the fact of submitting the question to the jury would not change their materiality, it matters not what the jury may have thought about it. In order to constitute error reversible, it must prejudice or tend to prejudice the rights of the defendant in some way. (2) The instruction based upon the question of reasonable doubt was refused, as shown by the record, on the ground that an instruction on that question had already been given. In this no error was indulged in. Having been fully included in instruction number six offered by the state it became the duty of the court to refuse it. State v. Edie, 147 Mo. 535; State v. Jones, 78 Mo. 278; State v. Anderson, 89 Mo. 312; State v. Jackson, 96 Mo. 200; State v. Elliott, 98 Mo. 150; State v. Thomas, 99 Mo. 235; State v. Gamble, 119 Mo. 427. It has been frequently held by this court that when the instructions as a whole, declare the law, omissions in the way of particular instructions will not constitute grounds for reversal. State v. Edie, 147 Mo. loc. cit. 545; State v. Edwards, 71 Mo. 312; State v. Hatfield, 72 Mo. 518; State v. Mathews, 98 Mo. 125; State v. McNamara, 100 Mo. 100; State v. Minton, 116 Mo. 605. (3) Squire Lacy, as stated by him in his evidence, referred to the paper or written instrument to refresh his memory. This he had a perfect right to do. While the instrument was not written by the witness, yet it was a document that had been filed in his court as justice of the peace; it had been in his possession since defendant testified before him; it was filed by defendant and was of such character as to entitle the witness to refer to it while testifying. In fact it was the basis of defendant's false swearing. There is no question but that the squire knew it to be the paper containing the set-off filed by defendant and on which defendant based his testimony while before him. Why could he not then use the instrument to refresh his memory? We submit there is no reason for its exclusion. He knew it to be genuine. (4) The court refused to permit witness Nagley to testify for the reason that he had disregarded the order of the court in prohibiting the witnesses in the case from being present in the court room during the trial. The court has the right to make the order, and the right to use his discretion in its enforcement. He saw proper to refuse the right of the witness to testify, and as no abuse of his discretion is shown by defendant he can not now complain. Aside from this, defendant fails to show prejudice in the action of the court in exercising his discretion. He made no statements or offers as to what was intended to be proven by this witness; the trial court was and this court is unable to tell whether defendant was damaged. While it is true defendant sets up the refusal to allow the witness to testify, as ground for a new trial, yet he failed to set out the facts he intended and expected to prove or show in evidence by him. Until this is done he can not contend error committed. By permitting his witness to remain in the court room, defendant practically admits the testimony of such witness to be of no value to him. This fact is strengthened by his failure to state such facts as he intended to prove, showing the value of the witness, and defendant's innocence in the transaction. Until this is done the defendant is charged with an attempt to trifle with the deliberations of the court during actual trial.
The defendant was indicted for perjury, in the circuit court of Maries county. He was duly arraigned, pleaded not guilty, and was convicted. He appeals to this court.
The indictment is sufficient under the statute of this State, and it is not necessary to set it out for the purposes of this decision. In substance it charged that defendant corruptly and falsely swore that one John E. Love had bought and received from defendant 120 loads of juggles at 25 cents per load, during the years 1891, 1892, 1893, 1894, 1895 and 1896, whereas said Love did not buy said "juggles" at said price. The evidence tended to prove that "juggles" consisted of timber wasted in making railroad ties. Defendant was engaged in the tie business and the evidence tended to show that Love sent his wagons at various and sundry times during the years mentioned to the tie camp of defendant, and hauled away these juggles for firewood; that they were taken without any one keeping the account and often when defendant was not present. Defendant was sued by Love before a justice of the peace on a small note for $ 13.50, and pleaded as a set-off or counter-claim the indebtedness of Love to him for the price of the juggles, which he stated amounted to 120 loads at 25 cents a load. The testimony of the justice of the peace and Love's attorney, was to the effect that defendant swore to his counter-claim, and it was this testimony which was averred to be willfully and corruptly false. Numerous errors are assigned for reversal of the judgment.
I. The instructions are challenged first because the court submitted to the jury the materiality of defendant's evidence to the issue on trial before the justice. Each of the first four instructions given by the court in behalf of the State left it to the jury to determine whether the alleged false evidence of defendant in the justice's court was material to the question to be determined by the jury in the justice's court.
It was decided by this court in an opinion by Judge Scott in State v. Williams, 30 Mo. 364, that "the court and not the jury, must determine whether the fact sworn to was material in the judicial proceeding in which the perjury is alleged to have been committed, and an instruction, therefore, which...
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