The State v. Ruddy
| Decision Date | 19 March 1921 |
| Citation | 228 S.W. 760,287 Mo. 52 |
| Parties | THE STATE v. MIKE RUDDY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Adair Circuit Court. -- Hon. James A. Cooley, Judge.
Affirmed.
W. F Frank for appellant.
(1) Motion to quash the indictment should have been sustained. (a) For the reason that the indictment does not contradict the alleged false testimony of the defendant. There is no special averment negativing the matter set out in the indictment. (b) Because it does not appear from the face of the indictment that the alleged false testimony was material to the investigation being conducted by the grand jury, and because no facts are set out from which the court could determine the materiality of the alleged false testimony. State v. Coyne, 214 Mo. 344; Kelley's Crim. Law (3 Ed.) sec. 828; State v. Morgan, 225 S.W. 130. (2) Defendant's instruction in the nature of a demurrer to the evidence should have been given, because the State's evidence did not show that the alleged false testimony was material to the investigation being conducted and because the evidence did not show whether or not defendant's presence in the house in question was material to the investigation being conducted. State v. Holden, 48 Mo. 93; State v. Keel, 54 Mo. 182. (3) Defendant's presence in the house in question would not be material unless he, while there, learned some fact bearing on the question as to whether or not the parties living in the house were selling intoxicating liquor illegally. If defendant while in said house learned such facts it should have been alleged and proven. Where the materiality depends upon a number of facts it becomes a mixed question of law and fact to be submitted to the jury with proper instructions. 22 Am. & Eng. Enc. Law, 688. (4) Members of the grand jury who found the indictment against accused should not have been permitted to testify to anything except what accused said in the grand jury room before them. R. S. 1909, sec. 5086; State v Thomas, 99 Mo. 235; State v. Whelehon, 102 Mo 17. (5) Instruction one, given at the request of the State, should not have been given, because it authorized the jury to convict defendant, if they found that accused had been in the house in question within twelve months prior to January 22, 1919, when the information does not charge that accused had been in said house within said period of time. The instruction injects an issue into the case not made by the indictment.
Frank W. McAllester, Attorney-General, and Henry B. Hunt, Assistant Attorney-General, for respondent.
(1) The motion to quash the indictment was properly overruled, as the indictment is sufficient in form and substance. (a) The indictment contains a sufficient allegation relative to the adoption and existence of the Local Option Law in Adair County, outside the City of Kirksville. Art. III, Chap. 63, R. S. 1909; State v. Searcy, 39 Mo.App. 399; State v. Searcy, 46 Mo.App. 427; State v. Zehnder, 182 Mo.App. 167; State v. Dugan, 110 Mo. 143; State ex rel. v. Robertson, 262 Mo. 619. (b) Said indictment sufficiently alleges the court and term; the summoning and impaneling of the grand jury; that George Leavitt was the foreman of said grand jury and had lawful authority to administer an oath; that said grand jury on the 22nd day of January, 1919, at and during the January Term, 1919, of the Adair County Circuit Court, being duly sworn and charged to inquire within and for the body of the County of Adair, had under investigation certain alleged violations of the Local Option Law; that on said 22nd day of January, 1919, appellant was sworn by said foreman as a witness before said grand jury; that it was a material question whether said appellant had entered the dwelling of Jim and Sadie Benvenetto within twelve months prior to said January 22nd, they, the said Benvenettos, then and there being under investigation relative to their alleged sales of intoxicants at their dwelling in Adair County, Missouri outside the City of Kirksville, within said twelve months; that appellant denied being in said dwelling during the period aforesaid; the assignment of perjury. Sec. 4344, R. S. 1909; Sec. 4350, R. S. 1909; State v. Ackerman, 214 Mo. 327; State v. Faulkner, 175 Mo. 553, 565; State v. Faulkner, 185 Mo. 679; State v. Walker, 194 Mo. 376; State v. Gordon, 196 Mo. 198; State v. Nelson, 146 Mo. 259. (c) The indictment properly alleges the materiality of the issue with reference to which perjury was assigned. Appellant's demurrer was properly overruled. Sec. 4350, R. S. 1909; State v. Powers, 136 Mo. 196; State v. Nelson, 146 Mo. 261, 264; State v. Walker, 194 Mo. 370, 376; State v. Gordon, 196 Mo. 198; State v. Cave, 81 Mo. 454. (2) The trial court did not err in permitting members of the grand jury who returned the indictment at bar, to testify that numerous complaints had been made to the grand jury that the Benvenettos had been selling intoxicants in violation of the Local Option Law; and that said grand jury was investigating said complaints. Sec. 5069, R. S. 1909; Sec. 4350, R. S. 1909; Sec. 5086, R. S. 1909; Kelley's Crim. Law, Sec. 163; State v. Ackerman, 214 Mo. 332; State v. Faulkner, 175 Mo. 556; State v. Thomas, 99 Mo. 260. (3) The trial court did not err in permitting the foreman of said grand jury to read from "Kelley's Criminal Law and Practice" the oath he administered to appellant. Sec. 5070, R. S. 1909; 30 Cyc. 1446, 1450; Sec. 6353, R. S. 1909; State v. Bennett, 102 Mo. 373; Kelley's Crim. Law, sec. 149. (4) Error was not committed, in permitting members of said grand jury to testify that appellant was repeatedly asked the question with reference to which perjury was assigned. State v. Blize, 111 Mo. 473. (5) The question with reference to which perjury was assigned was a material question, and the evidence so shows. State v. Ackerman, 214 Mo. 332; State v. Jennings, 278 Mo. 552; State v. Hardiman, 277 Mo. 223. (6) A general assignment of error with reference to instructions presents nothing for review. State v. Rowe, 271 Mo. 94; State v. McBrien, 265 Mo. 605; State v. Selleck, 199 S.W. 130.
WHITE, C. Railey and Mozley, CC., concur. Higbee, P. J., not sitting.
The appellant in the Circuit Court of Adair County, was convicted of the crime of perjury, and his punishment assessed at two years' imprisonment in the penitentiary.
He was charged with having sworn falsely in a matter pending before the grand jury of Adair County. At the January term, 1919 of the circuit court of that county, a grand jury had under investigation violations of the Local Option Law. It was admitted that the Local Option Law was in force in Adair County, outside the City of Kirksville. Complaints had been made to the grand jury that Jim Benvenetto and Sadie Benvenetto, within a year before the investigation was made, had been selling liquor at their home in the City of Novinger in Adair County, outside the corporate limits of the City of Kirksville. The defendant was brought before the grand jury, sworn, and asked this question:
"Have you been in the home of Jim Benvenetto and Sadie Benvenetto in the City of Novinger in Adair, County, Missouri, within the last twelve months?" Ruddy answer the question, "No." Several members of the grand jury testified that he was several times asked the question and answered it in that manner. Four witnesses testified to having seen the defendant go into the Benvenetto home at various times between January 22, 1918, and January 22, 1919 -- the day on which the question was asked.
The assignments of error on which the appellant seeks a reversal relate to the sufficiency of the indictment and the evidence offered, showing the materiality of the question, which brought the alleged false answer.
I. It is first claimed that the indictment does not allege with particularity any facts which would show it was material to the matter under investigation whether Mike Ruddy visited the home of the Benvenetto's or not. The indictment, which is too long to quote in full, after setting forth the facts showing the Local Option Law in force, the empaneling and organization of the grand jury, the oath administered to the defendant, and the nature of the investigation which was in progress, contains this statement:
"That after the said oath had been so duly administered and while the said Mike Ruddy was then and there before the said grand jury, duly sworn as aforesaid, it then and there became and was a material question whether the said Mike Ruddy had in truth and in fact entered the dwelling house in which the said Jim and Sadie Benvenetto live and have lived during the last twelve months in the City of Novinger in Adair County, Missouri, and outside the corporate limits of the said City of Kirksville."
At common law the general allegation that the question was material would have been insufficient; facts to show the materiality of the evidence had to be alleged. [State v. Keel, 54 Mo. 182.] But the statute has simplified the form of indictment in such cases. Section 3132, Revised Statutes 1919, specifies what shall be required in an indictment for perjury; as to the materiality of the false statement it is required to state only:
"That the matter or testimony alleged to be false was material to a certain matter or issue named, without setting forth the particular facts showing this materiality."
The statute settles that question against the contention of the appellant. [State v. Rhodes, 220 Mo. 9, 119 S.W. 391.]
II. It is further claimed that the "assignment of perjury" in the indictment is insufficient; that is, that the indictment does not sufficiently, explicitly and directly state the truth of the matter about which the alleged false testimony was given. The indictment...
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