The State v. Tedder

• Decision Date: 08 June 1922
• Citation: 242 S.W. 889,294 Mo. 390
• Parties: THE STATE v. MILTON TEDDER, Appellant
• Court: Missouri Supreme Court

242 S.W. 889

294 Mo. 390

THE STATE v. MILTON TEDDER, Appellant

Supreme Court of Missouri, Second Division

June 8, 1922

Appeal from Washington Circuit Court: -- Hon. A. H. Harrison Special Judge.

Affirmed.

R. A Frazier for appellant.

(1) The court erred in giving Instruction 2 for the reason it attempts to explain to the jury the quantum of evidence necessary to a conviction, viz.: The evidence of more than one credible witness or by one such witness strongly corroborated by other evidence of facts or circumstances which convinces your minds of the truth of the testimony of such single witness. And, for the reason that the words corroborated and corroboration should not be used in any instruction without explanation as to what they mean. State v. Hunter, 181 Mo. 316. (2) The court erred in overruling defendant's plea of former jeopardy. When one offense is a necessary element in and constitutes an essential part of another offense, and both were in fact but one transaction, a conviction or acquittal of one is a bar to a prosecution for the other. State v. Williams, 152 Mo. 115; State v. Hunter, 136 Mo. 62; State v Hall, 141 Mo.App. 701. (a) Twice in jeopardy is in violation of and forbidden by Article 2 of the Constitution, and in violation of Section 23 of Bill of Rights. State v. Moore, 156 Mo. 137; State v. Huffman, 136 Mo. 58. (b) In prosecutions for perjury committed at a former trial as a general rule the acquittal of defendant on a criminal prosecution in which he testifies, does not bar a subsequent prosecution against him for perjury committed on the former trial. But if the truth or falsity of the charges in the former indictment is the gist of the question under investigation so that a conviction for perjury will necessarily impart a contradiction of the jury's verdict of not guilty in the former trial then the subsequent prosecution will be barred. Standard Encyc. Proc. p. 554; United States v. Butler, 38 F. 498; Kentucky v. Cooper, 106 Ky. 909. (c) The acquittal of the accused on the trial of an indictment for an offense is a bar to a prosecution for false swearing based on his testimony at a former trial. 2 Wharton, Criminal Law, sec. 1599; State v. Webster, 206 Mo. 558. (3) The court erred in overruling defendant's demurrer to the indictment for the reason that said indictment does not state facts sufficient to constitute a crime under the law of this State. State v. Rhodes, 220 Mo. 9. (a) Court erred in not sustaining defendant's demurrer for the reason that the indictment is fatally defective in this that the alleged false testimony given is not of necessity contradicted by the alleged false testimony. And for the further reason that the alleged false testimony does not contradict or dispute the alleged material question, and there is a fatal variance between the alleged material question and the alleged false testimony. United States v. Howard, 132 F. 325; Gibson v. State, 44 Ala. 17; Kelly on Crim. Law, sec. 828; State v. Coyne, 214 Mo. 344; State v. Keel, 54 Mo. 182; State v. Rhodes, 220 Mo. 9.

Jesse W. Barrett, Attorney-General, and Marshall Campbell, Special Assistant Attorney-General, for respondent.

(1) The indictment is sufficient. State v. Walker, 194 Mo. 367; State v. Huckeby, 87 Mo. 414; State v. Nelson, 146 Mo. 256; State v. Cave, 81 Mo. 450; State v. Miller, 44 Mo.App. 159; State v. Breitweiser, 88 Mo.App. 648; State v. Powers, 136 Mo. 194; State v. Morse, 90 Mo. 91. (2) It is the general rule that the acquittal of the defendant on a criminal prosecution in which he testified, does not bar a subsequent prosecution against him for perjury in his testimony. State v. Moran, 216 Mo. 550; State v. Vandemark, 58 A. 715; State v. Bevill, 100 P. 476; Teagure v. Commonwealth, 189 S.W. 908; State v. Williams, 58 P. 476; Allen v. United States, 194 F. 664; Miles v. State, 165 S.W. 567; Dickerson v. State, 111 P. 857; Murff v. State, 172 S.W. 238. (3) The evidence is sufficient. State v. Burnett, 253 Mo. 341; State v. Moran, 216 Mo. 550; People v. Veld, 139 N.Y.S. 788; People v. Doody, 72 N.Y. (App.Div.) 372; Sullivan v. Commonwealth, 165 S.W. 696; Hashagen v. United States, 169 F. 396. (4) Where the defendant failed to request instructions on all the law in the case, the failure of the court to so instruct is not error. State v. Fisher, 162 Mo. 668; State v. Melvin, 166 Mo. 565; State v. Westlake, 159 Mo. 669; State v. Cantlin, 118 Mo. 100; State v. Hilsabeck, 132 Mo. 348; State v. Sacre, 141 Mo. 64. Objections to instructions must be specifically stated, and unless so stated in the motion for new trial there is nothing for review. State v. Rowe, 271 Mo. 94; State v. Daugherty, 228 S.W. 788; State v. Gallagher, 222 S.W. 467; State v. Chissell, 245 Mo. 555. (5) In a charge of perjury it is necessary that the evidence which was perjured, be material to sustaining the facts in the matter in which the perjury was committed. State v. Jennings, 278 Mo. 552; State v. Ackerman, 214 Mo. 332; State v. Faulkner, 175 Mo. 568; State v. Day, 100 Mo. 249.

RAILEY, C. White and Reeves, CC., concur.

OPINION

RAILEY, C. --

On August 25, 1920, appellant was indicted by the grand jury of Washington County, Missouri, for the crime of perjury. Without caption and signatures the indictment reads as follows:

"The grand jurors of the State of Missouri, empanelled, sworn and charged to inquire within and for the body of the County of Washington and State of Missouri, upon their oaths present and charge, that heretofore, to-wit, at the August term of the Circuit Court of Washington County, on the 23rd day of August, 1920, at the county aforesaid, before the Hon. E. M. Dearing, Judge of the Twenty-first Judicial Circuit of the State of Missouri and ex-officio Judge of the said Washington County Circuit Court, a certain issue between the State of Missouri and Milton Tedder, charged with grand larceny for the stealing of chickens in the nighttime, wherein the said State of Missouri was plaintiff and the said Milton Tedder was defendant, came on to be tried in due form of law, and the said court then and there having competent authority in that behalf, the said issue was then and there tried by a jury of said county in that behalf duly sworn and taken between the parties aforesaid; upon which said trial Milton Tedder then and there appeared as a witness for and on behalf of himself as defendant in said cause, in the action aforesaid, and was then and there duly sworn and took his oath before the said court; which oath was then and there administered to the said Milton Tedder by S.D. McGready, who was then and there deputy clerk of said court, and having full power and competent authority to administer the said oath to the said Milton Tedder in that behalf, that the evidence which he, the said Milton Tedder, should give to the court there, and to the said jury so sworn as aforesaid, touching the matter then in question between the said parties, should be the truth, the whole truth and nothing but the truth. And that, at and upon the trial of said issue so joined between said parties aforesaid, it then and there became and was a material question whether the said Milton Tedder stole nine chickens on April 27, 1920, and during the nighttime from one Eliza Parmley and was thereby guilty of grand larceny for the stealing of said chickens during the nighttime; and that said Milton Tedder then and there on the trial of said issue and upon his oath aforesaid feloniously, wilfully, corruptly and falsely before the court and jury aforesaid did depose and swear in substance and to the effect, following, that is to say, that he, the said Milton Tedder, on April 27, 1920, between the hours of eight and nine o'clock p. m., purchased nine chickens from Aquilla Cole and Nealy Stoner and paid therefor $ 6.75; and further stated that said Cole and said Stoner came to his house between the hours aforesaid, and that they were riding on a certain black horse and had said nine chickens in a sack; and further said that he, the said Milton Tedder, thereafterwards and at Belgrade, Washington County, Missouri, recognized Nealy Stoner as one of the boys who came to his house on April 27, 1920, and got down off of said black horse and took the said nine chickens placed in said sack as aforesaid and brought said chickens into the home of said Milton Tedder and sold said chickens to said Milton Tedder for the aggregate sum of $ 6.75; whereas, in truth and in fact, the said Aquilla Cole and Nealy Stoner did not ride on said black horse up to said Milton Tedder's home on said April 27, 1920, and did not have said nine chickens or any other chickens in said sack and that said Cole and Stoner did not sell to said Milton Tedder said nine chickens for said aggregate sum of $ 6.75, but that the said Milton Tedder did on April 27, 1920, at and in the county and state aforesaid and during the nighttime, steal, take and carry away from the premises of Eliza Parmley the chickens described as aforesaid and which said nine chickens were the property of the said Eliza Parmley.

"And so the grand jurors aforesaid, upon their oaths aforesaid, say, that the said Milton Tedder, on the said August 23, 1920, at the county and state aforesaid, before the circuit court aforesaid, upon the trial aforesaid, did, in manner and form aforesaid, feloniously, wilfully, corruptly and falsely commit wilful and corrupt perjury; against the peace and dignity of the State."

Owing to the disqualification of Judge Dearing to sit in the case Honorable A. H. Harrison was duly elected and qualified as special judge to try this cause. Defendant was formally arraigned and entered a plea of not guilty. He filed a demurrer to said indictment, which was overruled; and likewise filed a plea of...