The State v. Hardiman

Decision Date04 March 1919
Citation209 S.W. 879,277 Mo. 229
PartiesTHE STATE v. ARTHUR HARDIMAN, Appellant
CourtMissouri Supreme Court

Appeal from Moniteau Circuit Court. -- Hon. J. G. Slate, Judge.

Reversed and remanded.

Roy L Kay and N. C. Hickcox for appellant.

(1) Corroborative evidence against the accused on a prosecution for perjury means evidence aliunde which tends to show the perjury independent of any declaration or admission of the prisoner and the person to be corroborated. State v Rohten, 259 Mo. 424. (2) The instructions given by this court are erroneous upon authority of the case of State v. Thornton, 245 Mo. 436. The instructions do not follow the charge alleged in the information. There is no charge in the information accusing defendant of swearing that he did not buy whiskey or intoxicating liquors and instruction number 7 requires the jury to find that he did swear that he did not buy whiskey and that such statement was false.

Frank W. McAllister, Attorney-General, and Henry B. Hunt, Assistant Attorney-General for respondent.

(1) Instructions similar to instructions Nos. 6 and 7 given for the State in this cause, have been passed upon by this court. State v. Hunter, 181 Mo. 337; State v Thornton, 245 Mo. 443; State v. Heed, 57 Mo. 253. (2) As to the sufficiency of the evidence in this cause, on the question of corroboration of the principal witness, we refer the court to the following cases: State v. Heed, 57 Mo. 254; State v. Faulkner, 175 Mo. 254; State v. Hunter, 181 Mo. 334; State v. Thornton, 245 Mo. 444; State v. Rohten, 259 Mo. 424.

OPINION

WALKER, J.

Appellant was charged by information in the circuit court of Moniteau County with perjury, committed while testifying as a witness in said court. Upon a trial, he was convicted and sentenced to two years' imprisonment in the penitentiary, from which judgment he appeals.

At a trial, in said court, in January, 1918, of one Schenewerk for the unlawful sale of intoxicating liquors, the appellant is charged with having, in the language of the information, testified: "That he, the said Arthur Hardiman, did not see the said Frank Schenewerk put a bottle in the buggy of the said Arthur Hardiman, at California, Missouri, on or about the 24th day of May, 1917, and that he, the said Arthur Hardiman, said that this was the first time he had ever seen the said Frank Schenewerk and that he, said Arthur Hardiman, had not seen the said Frank Schenewerk since said 24th day of June, 1917, until the day of said trial, January 15, 1913, and that he, the said Arthur Hardiman, had not talked to anyone about the case or issue being tried on the said 15th day of January, 1918, or the matter in issue to be tried, and that he, the said Arthur Hardiman did not give or hand any money on the said 24th day of May, 1917, to said Frank Schenewerk, and that said Frank Schenewerk did not receive any money from him, the said Arthur Hardiman, at said time and place, and that statement so made by him, the said Arthur Hardiman, was made in reference to the time he, the said Arthur Hardiman, saw and talked with said Frank Schenewerk while he, the said Arthur Hardiman, was in his buggy near Gattermeier, mill in California, Missouri; whereas, in truth and fact, the said Arthur Hardiman, saw the said Frank Schenewerk put a bottle in the buggy of the said Arthur Hardiman, was in his buggy near Gattermeier's 1917, near Gattermeier's mill in California, Missouri, at the time mentioned, and said Arthur Hardiman did give and hand to said Frank Schenewerk money on said occasion, about the 24th day of May, 1917, at California, Moniteau County, Missouri, near said Gattermeier's mill."

The evidence against the appellant is that of one Allen, City Marshal of California, Mo. It is as follows: "I know the defendant, Arthur Hardiman. I live in California, Missouri, and am the City Marshal, and have been since April, 1917. I was investigating liquor violations going on here about May 24, 1917. I watched some of them -- what I could. I saw the defendant about the 24th of May, 1917. I saw at one time what I took to be a delivery to him of a half pint of whiskey. I was in Gattermeier's mill, and I noticed the defendant, Arthur Hardiman, at the hitch rack. I waited at the north door of the mill, and I noticed the defendant untie his team and get into his buggy, and sit there without driving away, and it just called my attention to it; I just watched him there, and directly Frank Schenewerk came and it appeared to me that he drew a half pint bottle from his right hip pocket and put it in the front of the buggy, and took something from this fellow's hand in return. That was from Hardiman's hand. There was nothing said by either. That is about all I saw. I was not present at the time of his arrest." Cross and redirect examinations elicited nothing of further relevancy, save an express statement by the witness that it was a bottle that was passed by Schenewerk to appellant's buggy. That the latter thereupon handed something to Schenewerk. On final cross-examination, Allen said: "I do not tell the jury it was whiskey; I do not tell them that any money was passed; I do not tell them that I saw a sale of liquor at the time." No testimony corroborative of this witness was offered by the State.

The testimony of the appellant was as follows: "I am the defendant in this case; I was present in the court last January and testified in the hearing of the case of State v Schenewerk, for and on behalf of the State; I testified that I did not know Frank Schene-werk by name until the day of the trial; I saw him once before the day of the trial, sometime in May. He came up to me at the hitch rack right across from Dr. Burke's. I testified in that case that he did not put anything in my buggy, and that testimony was true. He did not put anything in my buggy that I saw. I testified in that case that I did not hand him anything." This testimony is...

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