State v. Hamilton, 7 Mo. 300

Opinion of the Court, delivered ly Napton, Judge. This was an indictment for perjury. The indictment charged, That on, &c., at &c., before one William Bau-ta, a justice of the peace within and for the county aforesaid, a certain cause between one Thode, adm’r. &c., and one David Hamilton, in which cause the said Thode was plaintiff, and said Hamilton defendant, came on to be tried in due form of law, arid was then and there, to wit &c., tried by said justice &c.

And upon the trial of said cause, the said David Hamilton, then and there appeared as a witness, and was then and there duly sworn &c., in the usual form. The indictment further averred, that upon this trial, it became a material question whether the said Thomas Young, in his life time, had sold and delivered to said David Hamilton, a certain barrel of whisky, at, and for the price of seventeen dollars and fifty cents; and whether the • said Young had sold and delivered, in his life time, a barrel of whisky, at, and for any price whatsoever.

And thereupon, the said Hamilton, being so sworn as aforesaid, devising, &c., on the trial, &c., did testify, &c., that the said Thomas Young, deceased, in his life time, had not sold and delivered to him, the said Hamilton, the said barrel of vrkisky, at, and for the said price of fifteen dollars, nor at any price whatsoever: whereas, in truth, and in fact, the said Young, in his life time, did sell, and deliver to the said Hamilton, the said barrel of whisky, at, and for said price of fifteen dollars, and so the jurors aforesaid, &c.; the defendant inurred to this indictment, and the court sustained the mnrrer; and the only question is, whether the demurrer was properly sustained. an indict-ry to show,by mente thathe wasswomun-tier oircum-stances which fu-honsedhi3 as a witness (See it's!,6' 1835, Title £ MUStlfiGS^ Courts,” p, Unnecessary avements^in of“aindic1!3?eij;t eTL^urpius- .

In the first count of the indictment, it was averred, that the defendant was sworn as a witness on behalf of himself: this was omitted, however, in the second count, and-it simply stated that defendant was sworn as a witness, out specifying on whose behalf, or at whose instance the oath was taken. As it was the duty of the court to overrule the demurrer, if either count in the indictment were good, t — ' * it is unnecessary to enquire, whether the statement that the witness testified on behalf of himself, was improperly made or not.

Both counts were objectionable in this, that there was no averment that the witness was sworn under circumstances which would authorize him to be sworn. The sen-O eral rule of law is, that a party cannot be a witness in his own case. There are special circumstances, which, by Statute, authorise a party to be sworn. These circumstances should have been set forth.

The counsel for the defendant has also objected to this indictment, that it is repugnant and inconsistent, because it is averred, that on the trial of the suit before the justice, it became material to enquire, whether a certain barrel whisky nad been sold to defendant, for the price of fifteen dollars and fifty cents, and that defendant testified, he purchased no such barrel of whisky at the price ofseventeen dollars.

The words “at, and for the price of seventeen dollars and fifty cents,” wherever it occurs in this indictment, may be rejected as surplusage: every substantial averment is made out without it, and the charge is consistent without these words.' There was, in my opinion, no defect in the indictment in this particular. Judgment affirmed.