State v. Frisby

Norton, C. J. — The defendant was tried in the Cooper county circuit court on an indictment charging him with the crime of perjury, and appeals from the judgment of conviction obtained by the state on the trial. The indictment alleges, substantially, that the grand jury had before it for investigation the question whether or not one Sellinger and Haller, or either of them, did, on the twenty-fourth day of December,' 1882,.-said day being Sunday, keep open an ale house, or tippling shop, by permitting persons to enter the same and drink liquors therein; that in said investigation Henry Prisby was sworn as a witness, and it was a material matter of enquiry in said investigation whether or not, “ he, the said Prisby, did, on the twenty-fourth of December, 1882, enter the said ale house and drink intoxicating liquors therein, and that said Prisby, in answer to questions propounded to him did, feloniously, wilfully, corruptly and falsely swear, in substance, and to the following effect, to-wit: ‘ That he did not, on the said twenty-fourth day of December, 1883, enter the said ale house and tippling shop and drink intoxicating liquors therein, whereas, in truth and in fact, the said Henry Prisby, did, on the said day, enter said ale house and tippling shop and drink intoxicating liquors therein.’ [533] On the trial the state was permitted, over defendant’s objection, to prove that defendant swore before the grand jury .that he did not enter the said ale house on the twenty-fourth day of December, 188%, and drink intoxicating liquor therein, and also to prove that defendant did, in fact, enter said saloon and drink intoxicating liquor therein, on the twenty-fourth' day of December, 1882. We are of the opinion that the court erred in admitting this evidence, for the reason that the statement alleged in the indictment to have been made by defendant, and on which perjury was assigned, is, that defendant did not, on the twenty-fourth day of December, 1883, enter said ale house and drink intoxicating liquor therein, and the evidence received had not the slightest tendency to prove the allegations of the indictment as to what defendant did swear to. In a prosecution for perjury we understand the rule to be, that it is necessary for the prosecutor to prove in substance the whole of what has been set out in the indictment as having been sworn to by the defendant, and that it must be either literally or substantially as set out, and that any variance in substance between the indictment and evidence in this respect will be fatal. The rule is thus laid down in Barbour’s Crim. Law, 201 and 1971; 2 Arch. Crim. Prac. 1735 ; 2 Chitty Crim. Law, 312. This rule is not infringed upon by anything said in the cases, referred to by the Attorney General, of State v. Eaton, 75 Mo. 586, and State v. Burnett, 81 Mo. 119, but is sustained by the case of State v. Hamilton, 65 Mo. 667. The judgment for the reason given will be reversed. All concur.