dissenting opinion.
Biggs, J.If the purpose of this prosecution was either to force the defendant to pay a gambling debt or to punish him for its non-payment, I would readily agree to his discharge. But I do not so read or understand the record. If the state’s witnesses are to be credited, the defendant made a false affidavit to get $10, the. property of the prosecuting witness. This is the offense charged and proved, when stripped of verbiage and varnish.
I have always understood that in criminal cases the appellate jurisdiction of this court was exhausted, when it was determined that the act of the accused, as charged in the indictment, was an offense against the law; that the indictment was in due form, and that the conviction had been obtained according to the forms and requirements of criminal procedure.
The sufficiency of the indictment in the present case is not questioned, and if we adhere to the doctrine of this court, as declared in the case of State v. Boland, 12 Mo. App. 74, the defendant certainly violated the statute and subjected himself to a criminal prosecution, if the affidavit was false, and he made it for a corrupt purpose. If it was false, it was certainly corrupt as abundantly appears from the defendant’s own admissions. He did not make the affidavit to induce the *167stakeholder to give him his own money, but he made it to get money from the stakeholder, to which he had no legal or moral right.
The real question in the case is, was the falsity of the affidavit established by evidence, which, in law, is deemed sufficient to make out a case of perjury % In other words was the testimony of the prosecuting witness-corroborated by other material evidence or independent circumstances ? The majority of the court are of the opinion that the state’s evidence falls short of this requirement. The reading of the record leads me to a different conclusion. If the testimony of the witness Murphy be ignored, .that of S. J. Manes and George Hendricks is in the case. The testimony of these two witnesses was to the effect that the prosecuting witness sued the defendant before a justice of the peace for $15.35 in which was included the $10 which it was claimed that the defendant owed on the bet in 1884 ; that on the trial the defendant “claimed that the $10 was a gambling debt, and the law would not allow judgment for such a debt.” It strikes me that this was a plain and unequivocal admission that he had made the debt. If he did not in fact make it, why was it that this defense was not interposed, instead of seeking shelter under the gambling act ?
I think the judgment of the circuit court ought to be affirmed.