The State v. Walker

• Decision Date: 06 March 1906
• Citation: 91 S.W. 899,194 Mo. 367
• Parties: THE STATE v. CHARLES WALKER, Appellant
• Court: Missouri Supreme Court

91 S.W. 899

194 Mo. 367

THE STATE v. CHARLES WALKER, Appellant

Supreme Court of Missouri, Division Two

March 6, 1906

Appeal from Douglas Circuit Court. -- Hon. Jno. T. Moore, Judge.

Affirmed.

Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.

(1) The information, which was duly verified, is in proper form and contains the necessary averments. It states the court and the trial of the cause in which the perjury is alleged to have been committed; the nature of the action then pending; the fact that defendant was sworn by an officer duly authorized the substance of his evidence; and the further allegation that the same was false, and that defendant knew at the time that the same was false. State v. Blize, 111 Mo 471; Williams v. State, 68 Ala. 555; Roscoe's Crim. Evid., sec. 18; State v. Strat, 1 Murph. (N.C.) 124; State v. Faulkner, 175 Mo. 568; State v. Day, 100 Mo. 249; People v Grimshaw, 33 Hun 505; Washington v. State, 22 Tex.App. 32; 2 Bishop Crim. Law, secs. 1032-1038; 1 Greenl. on Evid., sec. 195; 2 Wharton's Crim. Law, sec. 1278; Dilcher v. State, 39 Ohio St. 133; State v. Brown, 102 N.W. 802; State v. Cary, 159 Ind. 507. (2) Defendant has not properly preserved for review the alleged errors occurring during the progress of the trial. None of the evidence is contained in the bill of exceptions, neither are the instructions for the State nor for the defendant.

GANTT, J. Burgess and Fox, JJ., concur.

OPINION

GANTT, J.

At the September term, 1904, of the circuit court of Douglas county, Missouri, the prosecuting attorney of said county filed in said court the following information:

"In the circuit court of Douglas county, Missouri, at the September term, 1904.

"State of Missouri,

vs.

"Charles Walker.

"Fred Stewart, prosecuting attorney within and for the county of Douglas and State of Missouri, upon his oath informs the court that heretofore, to-wit, at the county of Douglas and State of Missouri, at the March term of the circuit court of Douglas county, on the 2nd day of April, 1904, before the Hon. Asbury Burkhead, judge of the 31st judicial circuit of the State of Missouri, and ex-officio judge of said Douglas County Circuit Court, a certain action wherein the State of Missouri was plaintiff and James Turner and Victory Williams were defendants upon an information preferred against them for the crime of taking away a female under the age of eighteen years from the care of her father for the purpose of concubinage, came on to be tried in due form of law, the said court then and there having competent authority in that behalf, and the said issue was then and there tried by a jury of the county in that behalf duly sworn and taken between the parties aforesaid; upon which said trial one Chas. Walker then and there appeared as a witness for and on behalf of the said James Turner and Victory Williams, the defendants in the action aforesaid, and was then and there duly sworn and took his oath before the said court, which said oath was then and there administered to the said Chas. Walker by Hon. Asbury Burkhead, judge of said court as aforesaid, having full power and competent authority to administer the said oath to the said Chas. Walker in that behalf, that the evidence which he, the said Chas. Walker, 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 as aforesaid between the parties aforesaid, it then and there became and was a material question whether a certain birth record introduced in evidence in the cause then being tried and showing that one India or Dude Hatfield, the prosecuting witness in said cause, was born in 1887 had been changed since the aforesaid action had been commenced; and that the said Chas. Walker then and there on the trial of the said issue upon his oath aforesaid feloniously, willfully, 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 Chas. Walker, was at the home of India or Dude Hatfield, meaning the prosecuting witness in the aforesaid cause, a few days before the preliminary trial of said cause and that William Hatfield, the father of the said India or Duke Hatfield, got the record of the births of the children and got one Sol Walker, who was present, to read it and that he, the said Chas. Walker, heard it read, and that according to said record the said India or Dude Hatfield was born in 1884 or 1885, that Mr. Hatfield, meaning the said William Hatfield the father of the said India or Dude Hatfield, then took the said record and put it into a cigar box; and that he, the said Chas. Walker, was at the home of the said William Hatfield the next day after the said William Hatfield had placed the said birth record in the said cigar box, and that one John Milt Spurlock and one John Addis were there (meaning that the said John Milt Spurlock and the said John Addis were at the home of the said William Hatfield) and that the said William Hatfield came into the house and got a paper out of the cigar box (meaning the same cigar box that the said William Hatfield had placed the birth record in) and that they went around to the south end of the house (meaning the said William Hatfield, John Milt Spurlock and John Addis) and that he, the said Chas. Walker, stepped around there, and that they (meaning the said William Hatfield, John Milt Spurlock and John Addis) were scratching something off said paper with a pocket knife, the said Chas. Walker then and there well knowing that the said birth record did not show when read in his presence that the said India or Dude Hatfield was born in 1884 or 1885, and that he was not at the home of the said William Hatfield a few days before the preliminary trial of said cause when John Milt Spurlock and John Addis were there, and that he did not see William Hatfield take any paper out of said cigar box and take it around to the south end of the house, and that he, the said Charles Walker, did not see the said William Hatfield, John Milt Spurlock and John Addis scraping something off the said paper with a knife, and that the said Chas. Walker then and there knew that the said testimony by him given under oath as aforesaid to be false and corrupt. Whereas in truth and in fact the said birth record did show that the said India or Dude Hatfield was born in 1887, and the said Chas. Walker did not see the said William Hatfield take the said paper out of a cigar box a few days before the preliminary trial of said cause, and the said William Hatfield did not take the said paper around the south end of the house and that neither the said William Hatfield nor John Milt Spurlock nor John Addis at that or any other time scraped anything off of said paper as aforesaid at the time and place aforesaid. And so the prosecuting attorney aforesaid, upon his oath aforesaid, does say that the said Chas. Walker, on the said 2nd day of April, 1904, at the county and State aforesaid, upon the trial aforesaid, did, in manner and form aforesaid, feloniously, willfully, corruptly and falsely commit wilful and corrupt perjury against the peace and dignity of the State.

"Fred Stewart,

"Prosecuting Attorney.

"Fred Stewart, prosecuting attorney, makes oath and says that the facts stated in the foregoing information are true according to his best knowledge, information and belief.

"Subscribed and sworn to before me, this 14th day of September, 1904.

"G. B. Wilson, circuit clerk."

At the March term, 1905, of the said circuit court, the defendant was duly arraigned and entered his plea of not guilty, and the case was tried to the court and a jury, and the jury found the defendant guilty and assessed his punishment at two years in the penitentiary. Motions for new trial and in arrest of judgment were filed, heard and overruled, and the defendant was sentenced to the penitentiary in accordance with the verdict of the jury. An appeal was granted to the defendant to this court and leave was given him to file a bill of exceptions within ninety days after the 30th of March, 1905.

I. The defendant is not represented in this court by counsel, but it appears from the record before us that within the time alleged for the filing of the bill of exceptions, the defendant tendered to the judge of the circuit court of said county, to-wit, on the 9th day of May, 1905, a paper writing which purports to be a bill of exceptions, and that paper has been forwarded to this court as a part of the record. There is no file mark or other evidence showing or tending to show when said alleged bill of exceptions was filed in the office of the clerk of the circuit court of Douglas county. From the fact that the clerk transmits said paper in its original form...