The State v. Jennings
| Decision Date | 13 June 1919 |
| Citation | 213 S.W. 421,278 Mo. 544 |
| Parties | THE STATE v. ALVIS JENNINGS, Appellant |
| Court | Missouri Supreme Court |
Appeal from Greene Criminal Court. -- Hon. .C. .H. Skinker, Special Judge.
Affirmed.
Hamlin & Hamlin and Collins and Holladay & Stough for appellant.
(1) The indictment in this case is bad. The indictment charges that on the 12th day of May, 1917, defendant was placed upon his trial in the criminal court of Greene County on a charge of having unlawfully thrown a rock at and into a street car of the Springfield Traction Company, while said car was in motion, but nowhere charges that defendant threw this rock or committed the complained of act in Greene County, Missouri and without such allegations no offense is charged. "The cardinal principle of pleading in prosecution for felony is that everything constituting the offense must be pleaded with certainty and nothing be left to implication." State v. Ferguson, 152 Mo. 92; State v. Hall, 130 Mo.App. 170; State v. Hagan, 164 Mo. 654. This indictment is again bad for the reason it was wholly immaterial, on the charge of throwing a rock at a moving street car, whether this defendant had knowledge of or was implicated in any plan or agreement between himself and others to throw rocks at a moving street car. "Swearing falsely to a matter incidental, but utterly immaterial, to the issue, does not constitute the crime of perjury." Hinch v. State, 2 Mo. 158; Martin v Miller, 4 Mo. 47; State v. Bailey, 34 Mo. 350; State v. Wakefield, 9 Mo.App. 326. (2) The court erred in overruling defendant's plea in abatement, the defendant being under sentence at the time of this trial for another felony. In legal contemplation he was in a custody different from that of the criminal court of Greene County, and could not be placed upon trial until his term of imprisonment had expired. Ex parte George Meyer, 44 Mo. 279; State v. Buck, 120 Mo. 479; State v. Bell, 212 Mo. 130. (3) The verdict is wholly against the evidence. It is fundamental that whenever it is necessary to allege a matter it is also necessary to prove that matter. It is alleged in the indictment that the Springfield Traction Company, at whose car defendant is alleged to have thrown a rock, was a corporation duly organized and existing under the laws of this State. It is also alleged in the indictment that the defendant upon the trial of that charge committed perjury by falsely swearing that he did not conspire with others to throw rocks at a street car of the Springfield Traction Company, a corporation. There is no proof in this case that this Springfield Traction Company is or was a corporation, the record is absolutely silent as to proof on this all-vital allegation and for that reason alone this case under the holdings of this court must be reversed. State v. Horned, 178 Mo. 59; State v. Henschel, 250 Mo. 263.
Frank W. McAllister, Attorney-General, and Henry B. Hunt, Assistant Attorney-General, for respondent.
(1) The indictment is sufficient. Sec. 4596, R. S. 1909; Kelley's Crim. Law, sec. 821; Sams v. Railway, 174 Mo. 72; State v. Lang, 14 Mo.App. 249; Secs. 4344, 4350, R. S. 1909; State v. Gordon, 196 Mo. 198; State v. Cave, 81 Mo. 451; State v. Huckeby, 87 Mo. 415; State v. Nelson, 146 Mo. 259; State v. Taylor, 202 Mo. 2. (a) It was not necessary to state the venue of the offense of throwing stones at a street-car. Secs. 4350, 5107, 5115, R. S. 1909; State v. Keel, 54 Mo. 184; State v. Brown, 159 Mo. 648; State v. McDonough, 232 Mo. 227; State v. Fields, 262 Mo. 163. (b) Perjury was assigned upon matter material to the issue. State v. Ackerman, 214 Mo. 330; State v. Day, 100 Mo. 249; State v. Faulkner, 175 Mo. 568, 572; State v. Wakefield, 73 Mo. 554; Harris v. Railway, 172 Mo.App. 270. (c) Evidence may be material although it does not tend to directly prove the issue. State v. Moran, 216 Mo. 561. (2) A plea in abatement must be filed before a plea of not guilty is entered; or, if a plea of not guilty has been entered, leave of court should be obtained to withdraw such plea before filing a plea in abatement. 12 Cyc. 357; Sunday v. The State, 14 Mo. 420; State v. Taylor, 171 Mo. 472; Grimes v. State, 105 Ala. 89; State v. Wells, 159 P. 521 (Nev.) ; Rogers v. State, 166 Ala. 12. Filing of the plea in abatement did not have the effect of withdrawing the plea of not guilty. State v. Gieseke, 209 Mo. 340; State v. Reeves, 97 Mo. 672. (3) Appellant having been formally arraigned upon the first trial of this cause, arraignment was not necessary at the second trial thereof. State v. Simms, 71 Mo. 539; State v. Tate, 156 Mo. 131; Kelley's Crim. Law, sec. 221. (4) It was not necessary to prove that the Springfield Traction Company was a corporation. It was sufficient to prove that the alleged perjury was committed, Sec. 4350, R. S. 1909; State v. Huckeby, 87 Mo. 418; State v. Gordon, 196 Mo. 198; State v. Koslowesky, 228 Mo. 359.
Defendant appeals from a judgment of the Criminal Court of Greene County, sentencing him to two years' imprisonment for the crime of perjury.
The evidence offered by the State may be summarized as follows:
On May 12, 1917, Alvis Jennings (the appellant herein) was put upon his trial in the Criminal Court of Greene County, Missouri, upon an information which charged him with the crime of throwing stones at a street car in the City of Springfield, while said car was in motion. Upon that trial, Jennings testified in his own behalf substantially as follows:
That he did not throw a rock at this street car out near Broad and Dale Streets; that he did not ask or invite any of the boys with him to throw rocks; nor did he hear any of the boys riding with him in the automobile say anything about going out to rock a car; nor did he know of any such intention. On cross-examination he testified that he went out in an automobile with several boys for a ride; that nothing was said at the confectionery store where the crowd was made up that they would throw rocks; that he got out of the automobile two blocks from Broad and Dale Streets to urinate; that he saw no one throw rocks and heard no crash of glass; that he followed his companions back to the automobile and then heard some of them say, "We threw rocks in the car." That he had no intimation up to that time that the boys were intending to do anything of this kind. The above evidence of defendant upon the former trial was in substance testified to in the present trial by the circuit judge who tried the first case and by the court stenographer who took down the testimony at the time.
A street car conductor testified upon the present trial that in the month of January, 1917, he was on the street car one evening about nine o'clock, going north on Broad Street; that when the street car reached Dale Street, three rocks struck it, two rocks going through the side glass and one through the vestibule door.
Clarence Geister testified that he, together with defendant, Jennings, went out to Dale and Broad Streets in an automobile about eight-thirty or nine o'clock on the night in question for the purpose of stoning a Broad Street car; that on the way out appellant told them to pick up some rocks and be quiet. The whole crowd talked of throwing rocks at the street car and when the car came along appellant said, "Let them have 'em!" This witness admitted that he later plead guilty of stoning the car and paid the cost and that the above transaction occurred in Springfield, Greene County, Missouri.
Peter Boyle testified that he was in the automobile with the appellant and the boys when they went down to Dale and Douglas Streets; that they threw rocks at the street car when it came along and then ran back to the automobile and left; that they discussed the proposition of stoning the street car at the confectionery store, and decided where to go after they got into the automobile. Later when they got out of the automobile appellant said something about them keeping still, and to stay on the dark side of the street, so they could go down without being noticed; that appellant was at the confectionery store when the crowd was formed. This witness later pleaded guilty to a charge of stoning this particular street car.
Dewey Hulse testified that on the night in question he met the appellant and the other boys at the confectionery store; that the crowd of boys planned to go out to Broad and Dale Streets to throw rocks at a street car; that they rode out in an automobile to within two blocks of the above mentioned street crossing; there the crowd got out of the car and picked up some rocks and waited for a car and when the car came by, "We throwed at it." Shortly before the attack appellant told the boys to be quiet and "pick up some rocks, and when the car got even with Dale Street, why throw them and all run."
Defendant testifying in the present case stated that he was 21 years old; that he had nothing to do with and did not enter into any scheme with the boys mentioned to go out and rock street cars at the time referred to by the witnesses; that later he did plead guilty in the Criminal Court of Greene County, to the charge of shooting at a street car, but this was an entirely different transaction and that he served a term in jail for the latter offense. On cross-examination he further testified that he threw no rocks at the street car in question and did not know what the boys went out there for, but thought they were merely taking a joy ride; that he did not see the other boys pick up or throw any rocks, and that he did not know that the boys contemplated throwing rocks at the street car.
I. Appellant contends that the court erred in overruling his plea in abatement. This so-called plea in abatement amounts to nothing more...
To continue reading
Request your trial