The defendant appeals from a judgment rendered January 22, 1926, following the verdict of a jury in the Circuit Court of Pettis County, finding him guilty of perjury and assessing his punishment at two years' imprisonment in the penitentiary. *Page 316
The information charged that at the January term of the Criminal Division of the Circuit Court of Pettis County, 1925, a certain cause was pending wherein the State of Missouri was plaintiff and Joe Martin was defendant, wherein Joe Martin was charged with the "crime of unlawfully possessing intoxicating liquors;" that issues were being tried by a jury and Joe Martin appeared as a witness on his own behalf; was duly sworn and testified that he, in company with Benny Vaughn, on the ____ day of August, 1924, at about eight o'clock had gone to the residence of Gertrude Martin in the city of Sedalia, and remained there from the hour aforesaid to ten o'clock P.M., and while there he had purchased from her several drinks of intoxicating liquor; that he then and there knew that said testimony was false and corrupt; that in truth and in fact he did not go to the home of the said Gertrude Martin on that day, nor purchase any liquor from her.
An application for continuance was filed by defendant and overruled by the trial court.
On the trial it was admitted that a cause was pending in the Circuit Court of Pettis County, wherein the defendant Joe Martin was charged with the possession of intoxicating liquor, and that the case was on trial before a jury; that it became and was a material question whether said Joe Martin had purchased from one Gertrude Martin intoxicating liquor on the ____ day of August, 1924, and that upon that issue Joe Martin swore in substance and effect that in company with Bennie Vaughn on Friday night of the State Fair of Pettis County, 1924, he visited the home of Gertrude Martin at 1408 South Prospect Street, remained for a couple of hours, and purchased several drinks of intoxicating liquor from said Gertrude Martin.
The State produced Gertrude Martin as a witness and she testified that on the last day of the State Fair, which was Friday, 1924, she was at the fair grounds from twelve o'clock noon until eleven o'clock at night; was not at her home during that time, and sold no intoxicating liquor to the defendant Joe Martin, and did not see him during the day or night.
Several other witnesses testified for the State that they saw Gertrude Martin at the State Fair on that day, and that night during the hours at which Joe Martin testified he was at her home.
Defendant introduced four or five witnesses who testified that they had bought whiskey from Gertrude Martin at various times. Two witnesses testified that they went with Joe Martin on Friday night of the State Fair, 1924, and bought whiskey from her. The defendant introduced one witness who testified that Gertrude Martin's reputation was bad, and four witnesses who testified that Joe Martin's reputation was good. Gertrude Martin was the divorced wife of Joe Martin at the time mentioned in the evidence. *Page 317
The jury found the defendant guilty of perjury, as charged, and in so doing must have found that he did not purchase whiskey of Gertrude Martin at the time mentioned, that being the essential issue of fact submitted to the jury.
I. Error is assigned to the action of the court in overruling the defendant's application for a continuance, which was presented on the ground that one Leona Oswald, anContinuance. important and material witness for the plaintiff, was absent, and that the defendant could not safely go to trial without her presence. Facts were set out for the purpose of showing diligence in attempting to procure her appearance, and that if present she would testify that Gertrude Martin tried to get her to testify falsely as to certain material facts, to-wit, that Gertrude Martin was not at home, but was at the fair grounds on Friday night of the Fair week; that the said Gertrude Martin proposed to the absent witness that she get her small daughter, Leona Oswald, to testify to certain untruths.
The application has all the formal requirements of Section 3997, Revised Statutes 1919, except that, after stating the facts which the absent witness would swear to, it fails to state "that he believes them to be true." The application nowhere says that the applicant believes to be true the facts which the absent witness would swear to. This is a necessary statement and its absence makes it insufficient to warrant the court in granting a continuance. [State v. Blitz, 171 Mo. l.c. 536; State v. Alred,115 Mo. 471.] It is therefore unnecessary to consider other alleged infirmities in the application.
II. The brief and argument of the appellant is devoted almost entirely to the proposition that the alleged perjured statement of the defendant was not material to the issues in theMaterial case in which the evidence was given. Neither theIssue. information or indictment, nor any of the record in the case wherein Joe Martin was charged with the unlawful possession of liquor, was introduced in evidence. We know that there was such a charge pending only by the admission of counsel made at the start of the case. The alleged false testimony upon its face does not appear to be material to the defense of Joe Martin. There is nothing in the record to show how his purchase of liquor from his former wife on a certain day was material, nor when that alleged possession occurred.
However, the stipulation is that it became a material question whether the defendant did purchase liquor from Gertrude Martin on the day mentioned. We need not decide that this is a judicial admission made in open court by the defendant which would be binding upon him, although a mere conclusion, because, for other reasons *Page 318 the issue of materiality is eliminated from consideration. Both sides treated it throughout as material to the issue. The defendant made no objection at any period to any evidence on account of the lack of materiality of the alleged false statement. If it was not material, no evidence was admissible to prove it was true. But evidence pro and con was offered without objection from the defendant regarding the truth or falsity of the statement. There is no assignment of error anywhere in the motion for new trial which suggests that the alleged false statement was not material to the issue. The trial court instructed the jury that the statement was material. That court had before it the record in the case in which that evidence was offered, and of course was in position to determine whether it was material.
III. The motion for new trial assigns as error that the information did not state facts sufficient to charge the defendant with the commission of the crime. It contains all the averments necessary in a charge of perjury. TheInformation. pendency of the suit in which the evidence was given, the issue on the trial, the administration of the oath, the alleged false testimony, that it was material, the negation of its truth and the assignment of perjury. From the argument it appears that the alleged defect is the failure to aver the facts which show the materiality. Section 3132, Revised Statutes 1919, provides that an indictment for perjury shall be sufficient in that respect if it set forth in substance "that the matter or testimony alleged to be false was material to a certain issue named, without setting forth the particular facts and showing its materiality." The information avers: "It then and there became and was a material question whether said Joe Martin had purchased from one Gertrude Martin intoxicating liquor," etc.
That allegation meets the requirement of the statute.
IV. The motion asserts that there was a fatal variance between the allegation and the proof. This is not sufficient assignment, under Section 4079, Revised Statutes 1919, as amended by the Act of 1925, because it does not state "particularly" the "specific grounds" of that variance. Nor is the ground of the variance suggested in the appellant's brief.
V. It is claimed that certain instructions are erroneous but the assignment in the motion for new trial of error in that respect is insufficient to authorize a review under Section 4079, Revised Statutes 1919, as is likewise the assignment that the verdict is against the law and against the evidence. *Page 319
As the case was tried, it was purely and solely a question of fact, submitted to the jury as to whether or not the admitted testimony of Joe Martin in his own case was true or false. The only evidence offered was upon that issue and the jury found him guilty. We are unable to find any error warranting a reversal.
The judgment is therefore affirmed. All concur.