The State v. Sloan

• Decision Date: 14 July 1925
• Docket Number: 26145
• Parties: THE STATE v. WILLIAM B. SLOAN, Appellant
• Court: Missouri Supreme Court

274 S.W. 734

309 Mo. 498

THE STATE v. WILLIAM B. SLOAN, Appellant

No. 26145

Supreme Court of Missouri

July 14, 1925

Rehearing Denied August 1, 1925.

Appeal from Jackson Circuit Court; Hon Samuel A. Dew Judge.

Affirmed.

W Rea Heath for appellant.

(1) The indictment was not properly returned into court by the grand jury. Sec. 3884, R. S. 1919. (2) The court erred in not confining the evidence to the issues set out in the indictment. State v. Holden, 48 Mo. 93; State v. Nelson, 146 Mo. 256. (3) The court erred in refusing defendant a continuance. State v. Sherrell, 198 S.W. 464; State v. Anderson, 96 Mo. 241; State v. Hesterly, 182 Mo. 16; State v. Arnold, 267 Mo. 33. (4) The court erred in admitting evidence of taxes and tax records and the certificate of the stenographer. State v. Fannon, 158 Mo. 149; State v. Edelen, 231 S.W. 585; State v. Martin, 229 Mo. 620; State v. Austin, 234 S.W. 802. (5) The court erred in refusing the evidence of the defendant, as to income as received from sale of property and of money paid on this and other property in his name. (6) Instruction 1 given for the State was error. State v. Smith, 119 Mo. 439; State v. Kyle, 177 Mo. 659; State v. Nelson, 146 Mo. 256; State v. Slusher, 256 S.W. 817; State v. Tate, 12 Mo.App. 327; Appleman v. Appleman, 140 Mo. 309; State v. Hardiman, 209 S.W. 879; State v. Thornton, 245 Mo. 437. (7) The court erred in refusing defendant's instructions covering the defense offered. State v. Palmer, 88 Mo. 568; State v. Love, 93 Mo. 547; State v. Graham, 96 Mo. 120; State v. Brown, 104 Mo. 365; State v. Taylor, 118 Mo. 153; State v. Jackson, 126 Mo. 521; State v. May, 142 Mo. 135; State v. Stile, 149 Mo.App. 104; State v. Rutherford, 152 Mo. 124; State v. Darrah, 152 Mo. 522; State v. Faulkner, 175 Mo. 546; State v. Harris, 232 Mo. 317; State v. Brown, 239 Mo. 431; State v. Conway, 241 Mo. 271; State v. Finkelstein, 269 Mo. 612; State v. Levitt, 278 Mo. 372. (8) The conduct of the prosecuting attorney was prejudicial. State v. Mix, 15 Mo. 153; State v. Conway, 241 Mo. 271; State v. Dixon, 253 S.W. 746. (9) The court erred in giving Instruction 3. (10) The court erred in giving Instruction 6. State v. Palmer, 88 Mo. 568. (11) The court erred in refusing proper and material evidence offered by the defendant.

Robert W. Otto, Attorney-General, and James A. Potter, Special Assistant Attorney-General, for respondent.

(1) The mistake in the caption of the indictment wherein the words "September Term, 1923," are used, whereas in truth the indictment was returned in the November term, is of no consequence, since the caption is no part of the indictment, and any error in the caption is not fatal to the indictment. Sec. 3908, R. S. 1919; Kirk v. State, 6 Mo. 469; State v. Daniels, 66 Mo. 192; State v. Blakely, 83 Mo. 359. (2) The court committed no error in permitting evidence to be introduced to show there was an incumbrance on the property described by the appellant and such evidence did not broaden the issues in the case. The indictment charges that it was material to inquire into the ownership of the property. An inquiry into the ownership of the property necessarily involved an inquiry into the question of incumbrances on the property. The indictment specifically charges that appellant falsely stated that there was no incumbrance on the property, hence the evidence relating thereto did not broaden the issues made by the indictment. (3) The court did not err in refusing the defendant a continuance. An application for continuance is addressed to the sound discretion of the court, and unless such discretion has been abused the appellate court will not interfere. State v. Cain, 247 Mo. 705; State v. Salts, 263 Mo. 314; State v. Burgess, 192 S.W. 823; State v. Wilson, 242 S.W. 887. The evidence sought to be proven by the absent witness was merely cumulative and for that reason any error committed in the ruling on the application for continuance is not reversible error. State v. Riddle, 179 Mo. 294; State v. Sassaman, 214 Mo. 734. (4) The court committed no error in admitting the tax receipt in evidence or in admitting testimony of the stenographer. The tax receipts offered in evidence were duplicate originals and not copies as stated by appellant. The evidence of the stenographer was the original testimony of the appellant and was not a copy of such testimony. (5) The court committed no error in refusing the evidence offered by the appellant to the effect that he had received money from the sales of deeds of trust subsequent to the time of his tax return in 1922. (6) Instruction 1 given for the State was not erroneous. Certain cases cited by appellant under this proposition relate to the failure of the court to instruct the jury that they should not consider the admission of the appellant in determining the quantum of proof necessary in a perjury case. The case of the State v. Thornton, 245 Mo. 437, cited by appellant, relates to involuntary statements made by a defendant before a grand jury. In such a case such involuntary statements are clearly inadmissible for any purpose, and if erroneously admitted at all the jury should, of course, be instructed not to consider them in determining the quantum of proof necessary in a perjury case. In the case at bar the alleged admissions of the appellant were purely voluntary. The admissions of the appellant did not constitute any part of the corpus delicti. The corpus delicti was proven beyond all shadow of doubt by numerous witnesses and by indisputable record evidence. The falsity of the appellant's testimony was admitted. The sole question at issue was whether such false testimony was given wilfully, that is, intentionally. Contradictory statements made by a defendant are admissible in connection with other circumstances against the accused. The only limitation is that the jury should not consider them in determining the corroborative proof of the corpus delicti, and since this evidence was not offered in proof of the corpus delicti it was not necessary to instruct the jury not to consider it in that connection. State v. Hunter, 181 Mo. 337. (7) The court committed no error in refusing the instructions offered by the defendant for two reasons: First, because such instructions were clearly erroneous; and second, because the point involved in such instructions was covered by Instruction 1 given for the State. State v. Dougherty, 228 S.W. 786. (8) The argument of counsel for the State was not prejudicial under the evidence in the case, and even if any of such argument may be considered improper the case should not be reversed on that account unless from a consideration of all the evidence it is believed that a verdict of guilty would not likely have been rendered except for such improper argument. State v. Hess, 240 Mo. 160; State v. Baker, 246 Mo. 376. The court did not err in giving Instruction 2 for the State. The whole issue in the case is the question of the intent and motive of the appellant in the giving of his false testimony. In other words, this instruction was given to protect the appellant. (9) The court committed no error in giving Instruction 6 for the State. This instruction is the usual and ordinary stereotyped instruction given in criminal cases.

OPINION

Blair, J.

Defendant was convicted in the Circuit Court of Jackson County of the felony of perjury, was sentenced to imprisonment in the penitentiary for two years, and has appealed.

Defendant offered himself as surety upon a $ 12,000 appeal bond for one Bert R. Meyers, who had been convicted of a felony in said county and had appealed to this court. He was sworn and testified in such proceeding as to his property qualifications. It was during the course of such testimony that the alleged false testimony was given.

The evidence offered by the State tended to show that the defendant then and there falsely testified that he was the sole and absolute owner in fee simple of certain real estate in Kansas City, that said property was not in his wife's name, and that it was free from encumbrances. The proof showed that the record title to said real estate was in defendant's wife, and that said property was encumbered to secure the payment of a note or notes, amounting to $ 3,000. The property was taken in the name of defendant's wife when first purchased, and defendant had joined with his wife in the execution of the encumbrance.

Defendant did not deny that the record title stood in his wife's name or that said property was so encumbered. He claimed that he had forgotten that said encumbrance was upon this particular property and thought it was upon a different piece of property, which he claimed to own. He testified that, about the year 1911, his wife conveyed said property to him by deed executed before some notary public. He could not give the name or address of such notary. He said that he delivered the deed to said notary to have it recorded. One witness corroborated him as to the execution of said deed.

Defendant offered testimony tending to show that the tenants occupying said property paid the rent to him and that he exercised all of the usual acts of ownership and dominion over same. He also offered testimony tending to show that he bore a good reputation for truth and honesty.

The State offered evidence tending to show that said property was assessed in the name of defendant's wife and that the tax receipts were issued in her name.

I. The first assignment of error is that the indictment was not returned into court in compliance with Section 3884, Revised Statutes 1919. That section requires that indictments found by the grand jury shall be presented by the foreman in open court in the presence of the grand jurors. Defendant's contention is bottomed...