The State v. Hardiman
Decision Date | 04 March 1919 |
Parties | THE STATE v. ARTHUR HARDIMAN, Appellant |
Court | Missouri 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.
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: 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: This testimony is...
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