The State v. Martin
| Decision Date | 03 June 1927 |
| Docket Number | 27882 |
| Parties | The State v. Joe Martin, Appellant |
| Court | Missouri Supreme Court |
Appeal from Pettis Circuit Court; Hon. Dimmitt Hoffman Judge.
Affirmed.
H K. Bente and C. I. Bennington for appellant.
(1) The statute clearly defines perjury and clearly states that a man must willfully and corruptly testify to a material matter. False testimony as to immaterial or improper matter is not perjury. Sec. 3126, R. S. 1919; Hintch v. State, 2 Mo. 158; State v. Shanks, 66 Mo. 560; State v Koslowesky, 228 Mo. 351; State v. Hardiman, 277 Mo. 229, 209 S.W. 879; State v. Ruddy, 287 Mo. 52, 228 S.W. 760. (2) To constitute perjury the false oath must be made willfully and corruptly, the intent to testify falsely must appear. 30 Cyc. 1403, sec. B; State v. Higgins, 124 Mo. 640; Martin v. Miller, 4 Mo. 47. (3) At the trial for possessing intoxicating liquor had in January, 1925, the fact that the defendant purchased whiskey from Gertrude Martin in the month of August, 1924, was certainly not material to the issue on the trial of defendant for possessing one quart of intoxicating liquor on October 10, 1924. The statement made by him does not constitute perjury. 30 Cyc. 1413; Sec. 3126, R. S. 1919; State v. Higgins, 124 Mo. 640; Martin v. Miller, 4 Mo. 47; State v. Dineen, 203 Mo. 628; State v. Railway, 34 Mo. 350. (4) The information is defective. It does not follow the statute, in that it does not charge that the perjured evidence in question was material to the issue on trial in said former case, and does not set out that the defendant gave such testimony knowing it to be false. Sec. 3126, R. S. 1919; 30 Cyc. 1403, 1433; State v. Higgins, 124 Mo. 540; State v. Dineen, 203 Mo. 628. (5) The statute provides that an information or indictment for perjury must show conclusively that the testimony given or the assertion made by the defendant and charged to be false was material to the issue on the trial of which he was sworn. 30 Cyc. 1433; State v. Holden, 48 Mo. 93; State v. Dineen, 203 Mo. 628; State v. Nelson, 146 Mo. 256; State v. Wakefield, 73 Mo. 549; State v. Ackerman, 214 Mo. 325; State v. Owen, 73 Mo. 440; State v. Shanks, 66 Mo. 560; State v. Keel, 54 Mo. 182; State v. Cave, 81 Mo. 450.
North T. Gentry , Attorney-General, and Smith B. Atwood, Assistant Attorney-General, for respondent.
(1) The information is sufficient since it contains all of the essential allegations in a charge of perjury. State v. Walker, 194 Mo. 369; State v. Gordon, 196 Mo. 185; State v. Rhodes, 220 Mo. 11; Sec. 3126, R. S. 1919. (2) The appellant's application for continuance was properly refused because: (a) The evidence sought was merely cumulative, and the court's refusal of a continuance to secure such evidence is not reversible error. State v. Richardson, 267 S.W. 841; State v. Riddle, 179 Mo. 287; State v. Mitchell, 204 S.W. 801; State v. Sassaman, 214 Mo. 695; State v. Horn, 209 Mo. 452. (b) The evidence sought tended to discredit the evidence of the prosecuting witness rather than to prove defendant's innocence. State v. Hilsabeck, 132 Mo. 348; State v. Wilson, 242 S.W. 886. (c) Necessary diligence in securing the absent witness was not shown in view of a former trial of this case in which said witness was not subpoenaed. Sec. 3997, R. S. 1919. (d) The discretion of the trial court's action on an application for a continuance will not be disturbed for slight reasons. (3) General objections in motion for new trial to the admission or exclusion of evidence are not sufficient to present the matter complained of before this court for review. State v. Ellis, 290 Mo. 219, 234 S.W. 845; State v. Holden, 203 Mo. 581; State v. Epenschied, 110 S.W. 1072. (4) The positive evidence of Gertrude Martin was corroborated by other evidence accounting for her whereabouts during all the time in question so that it was for the jury to determine the facts, even though the testimony is conflicting. Since there was substantial evidence to support the verdict, the court was not justified in overruling appellant's demurrer to all of the evidence. State v. Jackson, 283 Mo. 18, 222 S.W. 746; State v. Clinkingbeard, 247 S.W. 202; State v. Loeb, 190 S.W. 299; State v. Mitchell, 252 S.W. 393. (5) General objections to instructions in motion for new trial are not sufficient to present the matters complained of before this court for review. Laws 1925, p. 198, sec. 4079; State v. Glenn, 262 S.W. 1030; State v. Othick, 184 S.W. 106; State v. Dockery, 234 Mo. 592; State v. Snyder, 263 Mo. 664.
The defendant appeals from a judgment rendered January 22, 1926, following the verdict of a jury in the Circuit Court of Pettis County, finding him guilty of perjury and assessing his punishment at two years' imprisonment in the penitentiary.
The information charged that at the January term of the Criminal Division of the Circuit Court of Pettis County, 1925, a certain cause was pending wherein the State of Missouri was plaintiff and Joe Martin was defendant, wherein Joe Martin was charged with the "crime of unlawfully possessing intoxicating liquors;" that issues were being tried by a jury and Joe Martin appeared as a witness on his own behalf; was duly sworn and testified that he, in company with Benny Vaughn, on the day of August, 1924, at about eight o'clock had gone to the residence of Gertrude Martin in the city of Sedalia, and remained there from the hour aforesaid to ten o'clock P. M., and while there he had purchased from her several drinks of intoxicating liquor; that he then and there knew that said testimony was false and corrupt; that in truth and in fact he did not go to the home of the said Gertrude Martin on that day, nor purchase any liquor from her.
An application for contnuance was filed by defendant and overruled by the trial court.
On the trial it was admitted that a cause was pending in the Circuit Court of Pettis County, wherein the defendant Joe Martin was charged with the possession of intoxicating liquor, and that the case was on trial before a jury; that it became and was a material question whether said Joe Martin had purchased from one Gertrude Martin intoxicating liquor on the day of August, 1924, and that upon that issue Joe Martin swore in substance and effect that in company with Bennie Vaughn on Friday night of the State Fair of Pettis County, 1924, he visited the home of Gertrude Martin at 1408 South Prospect Street, remained for a couple of hours, and purchased several drinks of intoxicating liquor from said Gertrude Martin.
The State produced Gertrude Martin as a witness and she testified that on the last day of the State Fair, which was Friday, 1924, she was at the fair grounds from twelve o'clock noon until eleven o'clock at night; was not at her home during that time, and sold no intoxicating liquor to the defendant Joe Martin, and did not see him during the day or night.
Several other witnesses testified for the State that they saw Gertrude Martin at the State Fair on that day, and that night during the hours at which Joe Martin testified he was at her home.
Defendant introduced four or five witnesses who testified that they had bought whiskey from Gertrude Martin at various times. Two witnesses testified that they went with Joe Martin on Friday night of the State Fair, 1924, and bought whiskey from her. The defendant introduced one witness who testified that Gertrude Martin's reputation was bad, and four witnesses who testified that Joe Martin's reputation was good. Gertrude Martin was the divorced wife of Joe Martin at the time mentioned in the evidence.
The jury found the defendant guilty of perjury, as charged, and in so doing must have found that he did not purchase whiskey of Gertrude Martin at the time mentioned, that being the essential issue of fact submitted to the jury.
I. Error is assigned to the action of the court in overruling the defendant's application for a continuance, which was presented on the ground that one Leona Oswald, an important and material witness for the plaintiff, was absent, and that the defendant could not safely go to trial without her presence. Facts were set out for the purpose of showing diligence in attempting to procure her appearance, and that if present she would testify that Gertrude Martin tried to get her to testify falsely as to certain material facts, to-wit, that Gertrude Martin was not at home, but was at the fair grounds on Friday night of the Fair week; that the said Gertrude Martin proposed to the absent witness that she get her small daughter, Leona Oswald, to testify to certain untruths.
The application has all the formal requirements of Section 3997, Revised Statutes 1919, except that, after stating the facts which the absent witness would swear to, it fails to state "that he believes them to be true." The application nowhere says that the applicant believes to be true the facts which the absent witness would swear to. This is a necessary statement and its absence makes it insufficient to warrant the court in granting a continuance. [State v. Blitz, 171 Mo. l. c. 536; State v. Alred, 115 Mo. 471.] It is therefore unnecessary to consider other alleged infirmities in the application.
II. The brief and argument of the appellant is devoted almost entirely to the proposition that...
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