
    THE STATE v. WILLIAM R. COYNE, Appellant.
    Division Two,
    November 24, 1908.
    1. PERJURY: Insufficient Indictment: Belief. An indictment which charges that defendant, in his testimony before a grand jury, swore that he did not believe he had done certain things, and then goes on to charge that he did those things, but does not charge that he did at the time he testified believe he had done them, or that he swore falsely, is insufficient. The indictment in the perjury case must specifically charge that defendant did believe the things he swore he did not believe, or that he believed and well knew the statements made by him under oath were false.
    2. -: -: -: Recalling Fact. Where the indictment in the perjury case charged that defendant had stated under oath that he did not recall having visited one Ascher and soliciting money from him to be used in securing the enactment by the city council of an ordinance in which Ascher was pecuniarily interested, but charged that in truth and in fact he did so approach Ascher and solicited said money, it did not 'sufficiently charge him with perjury. The indictment does not charge that the matter sworn to b'y defendant was not that he had not done those things, but that he had falsely testified that he did not believe that he had done those things and did not recall that he had done them. The averment that, he did in fact approach Ascher and solicit money for a corrupt purpose, is not an averment that he testified falsely when he swore that he did not believe or recall' that he had done those things. To have made a good indictment it was necessary for the pleader to have averred that the defendant believed and well knew that the statements made by him upon oath to the effect that he did not believe and did not recall, were false. That is the meaning of our statute (Sec. 2039, R. S. 1899) which requires that the indictment for perjury shall contain "proper averments to falsify the matter wherein the perjury is assigned.”
    3. INSUFFICIENT INDICTMENT: Available on Appeal. An indictment which is defective for that it does not state facts sufficient to constitute a crime, may be assailed for the first time in the appellate court.
    4. PERJURY: Recalling Facts: Evidence: Failing Memory. Where the charge is that defendant swore falsely when he testified that he did not believe he did certain things and that he did not recall them, testimony that down to a date recently prior to the alleged false swearing defendant’s memory was wholly unreliable and that he was on the brink of paresis, is competent evidence — -not to show that he was either wholly or partially insane, or unable to appreciate the moral or physical consequences of an unlawful act, but to show that his memory was wholly unreliable and whether or not he did in fact recall what he had done at the time he swore he did not
    Appeal from St. Louis City Circuit Court. — Hon. George H. Williams, Judge.
    Reversed and remanded.
    
      Chester H. Krum, Thomas J. Borne and Horace L. Dyer for appellant.
    (1) The indictment does not state an offense. The allegations in the indictment are that the accused testified that he did not believe, or did not recall, etc., but of these there is no negation. There is no averment that the accused did believe, or did recall. State v. Faulkner, 175 Mo. 600. .(2) The exclusion of the evidence as to the possible want of memory on the part of the appellant was inexcusable error. (a) The case was tried upon a totally false hypothesis. The issue was not whether any person had' been visited by the appellant, but whether at the time when he was sworn, if he was sworn, he believed that he had visited such person, or recalled the fact of such visit. (b) Appellant was not charged with having denied that he had visited any person. Had such been the specific charge, his failure to recall, his indication of want of belief, might have been looked upon as evasions. The theory of the court’s procedure imported into the indictment a charge which the indictment did not make, (c) There was no issue of general character, like that of incapacity to appreciate the moral or physical consequences of an act. There was nothing on which to predicate a situation of confession and avoidance, over which the court seems to have become bewildered. The charge was that appellant falsely swore that he did not recall, or that he did not believe. To this he pleaded not guilty, (d) The evidence excluded tended to prove that, down to a date recently before the alleged false swearing, the appellant apparently stood on the brink of paresis, and that his memory was wholly unreliable. To say that evidence, such as was excluded, after having been admitted, did not bear upon the issue before the jury, is nonsense. Rarely has a more palpable lack of appreciation of the rights of a defendant, or the real issue in a given case, on the part of a trial court, been called to the attention of an appellate tribunal.
    
      Herbert 8. Hadley, Attorney-General, and Jolm Kennish, Assistant Attorney-General, for the State; Arthur N. Sager and G. Orrick Bishop of counsel.
    The indictment fully sets forth the substance of the alleged false oath, a legally organized grand jury, and the name of the foreman thereof before whom the oath was taken, the taking of the oath, and the authority of the foreman to administer such oath; that the testimony alleged to be false was material and the matter and issue under investigation, so that the court could determine upon such materiality; and, omitting from consideration that part of the indictment assigning perjury, the indictment fully complies with every requirement of the statute. R. S. 1899';.sec. 2039; State v. Gordon, 196 Mo. 185'; State v. Cave, 81 Mo. 450; State v. Huckeby, 87 Mo. 414. The indictment does not traverse and negative the alleged false oath by charging that in truth and in fact the said William R. Coyne did then and there believe and well know that he did at the time and place mentioned, in the first assignment of perjury, approach Henry Ascher and propose, for the fee of one thousand dollars, to assist in the passage of the ordinance. Instead of a traverse in the form aforesaid, the indictment, in assigning the perjnrv and negativing the alleged false oath, charges that in truth and in fact the defendant did visit Henry Ascher at the time and place mentioned and did propose for a fee of one thousand dollars to assist in the passage of the ordinance, etc., “as he, the said William R. Coyne, then and there well knew.” Is the assignment of perjury thus made insufficient to constitute a valid charge of perjury? (1) If the alleged false oath had heen a direct and absolute denial of the fact contained in the question asked, and had been so charged in the indictment, the assignment of perjury, as charged in the indictment under consideration, would, under the authorities, clearly have been sufficient, and that without-the concluding words “as he, the said William R. Coyne, then and there well knew.” Brown v. State, 57 Miss. 436; State v. Lea, 3 Ala. 605; 2 Chitty, O. L., 312, 320; 4 Went., 231; Roscoe’s Or. Ev., 684; 2 Russ., 542; State v. Raymond, 20 Iowa 585; 16 Ency. PI. & Pr., p. 341. (2) The knowledge of falsity required to be averred when, as in this case, the alleged false oath is as to the belief of the witness, is not knowledge of the falsity of the belief sworn to, but knowledge of the truth of the fact denied in the alleged false oath, and such knowledge at the time such oath was taken. In this ease, as alleged in the indictment, the defendant denied visiting Henry Ascher at the time and place and for the purpose alleged, by answering, “I do not believe I did.” If the-assignment of perjury had negatived the oath by averring that in truth and in fact the said William R. Coyne then and there well knew that he, the said Coyne, did visit the said Henry Ascher at the time and place and for the purpose mentioned, and that the said Coyne did in fact so visit the said Ascher, such assignment would undoubtedly be a traverse of the alleged false oath, and would be sufficient in law. Yet, no substantial distinction can'be made between the case of an assignment of perjury in which the knowledge of the truth of the fact at the time of the denial thereof, upon belief, is followed by the averment as to the truth of the fact itself, and the ease under consideration, in which the assignment first alleges the truth of the fact, denied upon belief in the alleged false oath, and alleges in connection therewith and immediately following the knowledge of the truth of the fact so denied, at the time of such denial, in the language, to-wit, “as he, the said William R. Coyne, then and there well knew.” The words last quoted, taken in connection with the averment immediately preceding, are susceptible of but one meaning, and that is, that when the defendant testified that he did not believe that he ever visited Henry Ascher at the time and place for the purpose mentioned, he had in fact so visited Ascher and well knew that he had when he so testified. In either case, the alleged false oath is traversed, and it is impossible to distinguish the two. forms, for the only difference is the order in which the truth of the fact denied and the knowledge thereof at the time of the alleged false oath are set forth in the assignment of perjury. State v. Terry, 30 Mo. 368; Kelley’s Cr. Law and Prac., sec. 704.
   GANTT, J.

At the December term, 1907, of the circuit court of the city of St. Louis, the defendant William R. Coyne was indicted by the grand jury for perjury. He was tried and convicted, and his punishment assessed at two years in the penitentiary. After ineffectual motions for new trial and in arrest of judgment, he was sentenced in accordance with the verdict and from that judgment he has appealed to this court. Omitting the formal parts the indictment is as follows:

“That a certain investigation and inquiry was then and there pending before said grand jury into all crimes and felonies committed and triable within the said city of St. Louis, and more particularly certain offenses of bribery and solicitation of bribes, and conspiracy to solicit, accept and receive bribes, alleged to have been committed by certain members of the House of Delegates of the Municipal Assembly of the city of St. Louis, and particularly one Ferd Warner and one Frederick W. Priesmeyer, who were then and there members of the said House of Delegates of the Municipal Assembly, and public officers of the city of St. Louis, in connection with certain bills, ordinances and measures which were or had been pending in said House of Delegates by which it was proposed by the city of St. Louis to give and grant certain rights, privileges and franchises to sundry and divers persons and corporations in said city of St. Louis.
‘ ‘ That in the course of said inquiry and investigation in the city of St. Louis, and on or about the 28th day of October, in the year one thousand nine hundred and seven, one William R. Coyne was duly summoned as a witness, and did then and there personally appear as a witness before the said grand jury in regard to the said inquiry and investigation then and there pending; that the said William Coyne was then and there duly sworn by the foreman of said grand jury and took upon himself his corporal oath; the said foreman, to-wit, one George T. Riddle, being then and there duly and legally authorized and empowered, and having competent authority to administer the said oath to the said William R. Coyne, and that then and there it became and was important, competent and material to the investigation and inquiry then and there pending before said grand jury to inquire and ascertain whether he, the said William R. Coyne, had ever approached any person, firm or corporation in the city of St. Louis and proposed to aid or assist in, procure and secure the passage of any ordinance, bills or measures pending in the House of Delegates or Municipal Assembly of the city of St. Louis, in which such persons, firms or corporations were interested, for a fee or money consideration and whether he, the said "William R. Coyne, had ever represented' himself as an agent of the House of Delegates of the city of St. Louis, qr any member thereof; and then and there he, the said William R. Coyne, upon his said corporal oath and before the said grand jury, did feloniously, falsely, corruptly, knowingly and willfully, depose and swear in substance to the effect following:
“That he, the said William R. Coyne, did not believe that he, the said William R. Coyne, had ever at any time approached any person, firm or corporation interested in the passage of any ordinance by the Municipal Assembly of the city of St. Louis and proposed to them, or either of them, to assist in the passage of such ordinance for a money consideration;
“That he, the said William R. Coyne, did not remember that he, the said William R Coyne, had ever at any time represented himself as an agent of the House of Delegates of the city of St. Louis, or of any member thereof;
“That he, the said William R. Coyne, did not think that he, the said William R. Coyne, had ever approached one Henry Ascher or any other person and proposed to him or them, or either of them, that he, the said William R. Coyne, would aid or assist in the passage of any ordinance pending in the House of Delegates in the city of St. Louis, if he, the said William R. Coyne, was given a fee;
“That he, the said William R. Coyne, did not remember whether he, the said William R. Coyne, had ever approached one Henry Ascher, or any other person, in the city of St. Louis, and proposed that for a money consideration he, the said William R. Coyhe, would aid iu aud attempt to pass any ordinance pending before tbe House of Delegates in tbe city of St. Louis;
“That he, the said William R. Coyne, did not recall that he, the said William R. Coyne, had ever at any time gone to any person or the representative of any firm or corporation in the city of St.' Louis with the specific purpose -of securing employment with reference to the passage of some ordinance pending in said House of Delegates in which such persons were interested;
“Whereas, in truth and in fact, he, the said William R. Coyne,' in the city of St. Louis and on or about the fifth day of September, A. D. 1907, visited one Henry Ascher and stated to said Henry Ascher that he (the said Coyne) had been sent to said Henry Ascher by one Ferd Warner (who was then and there a member of the said House of Delegates) to confer with said Ascher about and concerning a certain ordinance then and there pending in said House of Delegates wherein it was proposed to grant to said Ascher the right and privilege of erecting and maintaining an automobile garage, and he, tbe said William R. Coyne, did then and there propose to the said Ascher that he employ him (the said Coyne) and pay him a fee of one thousand dollars to aid and assist in the passage of said bill or ordinance then pending in said House of Delegates, as he, the said William R. Coyne, then and there well knew.
“And whereas, in truth and fact, he, the said William R. Coyne, in the city of St. Louis, and on or about the 14th day of September, 1907, visited one Charles C. Higham, the works manager of the American Brake Company, and talked with him about and concerning a certain ordinance then pending in the said House of Delegates, whereby it was proposed to grant to the St. Louis Merchants Bridge Terminal Railway Company the right and privilege to construct, maintain and operate certain spur tracks to 'reach the plant of the American Brake Company, and in which said ordinaii.ce the said American Brake Company was interested, and stated that it would be necessary for said American Brake Company to- pay thé sum of one thousand dollar’s, in order to secure the passage of said ordinance by said House of Delegates; and that unless such sum of one thousand dollars was so- paid. said ordinance would not be passed by said House of Delegates; and that for a fee of one thousand dollars (to be paid him, Coyne) he would get behind said bill or ordinance then pending in said House of Delegates and aid and assist in its passage; as he, the said William R. Coyne, then and there well knew.
. “And whereas, in truth and in fact, the said William R. Coyne, in the city of St. Louis and on or about the 28th day of September, 1907, visited one F. C. Bretsnyder, who was then and there the president and manager of the Bell Oil Company, and talked with him about and concerning a certain ordinance then pending in. said House of Delegates, whereby it was proposed to grant to the Wabash Railroad Company the right and privilege to construct, maintain and operate a switch or side track in said city of St. Louis, and in which said ordinance the said Bell Oil Company was interested, as such proposed side track was to- reach the plant of the said Bell Oil Company, and. he, the said William Coyne, did then and there propose to 'the said Bretsnyder that he (the said Coyne) be employed and paid a fee of one thousand dollars to aid and assist in the passage of said bill or ordinance then pending in said House of Delegates; as he, the said William R. Coyne, then and there well knew.
■“And whereas, in truth, and in fact, he, the said William R. Coyne, in said city of St. Louis, on or about the 28th day of September, 1907, visited one Williana P. Bohnenkamp, who was then and there the counsel and attorney of the Bell Oil Company, and talked with him about and concerning a certain ordinance then pending in the House of Delegates, whereby, it was proposed to grant certain side track and switch privileges to the said Wabash Railroad Company as aforesaid, and in which said ordinance the said Bell Oil Company was interested, as such proposed side track was to reach the plant of the said Bell Oil Company, and he (the said Coyne) did then and there propose to the said Bohnenkamp' that he, the said Coyne, be employed and paid a fee of one thousand dollars to aid and assist in the passage of said bill or ordinance then pending in said House of Delegates; as he, the said William R. Coyne, then and there well knew.
“And whereas, in truth and in fact, he, the, said William R. Coyne, in the city of St. Louis, and on or about the 15th day of September, 1907, visited one Joseph F. Liebke, of the C. F. Liebke Hardwood Mill and Lumber Company, and talked to him about and concerning a certain ordinance then pending before the House of Delegates, wherein it was proposed to vacate certain streets and alleys in the city of St. Louis, in which said C. F. Liebke Hardwood Mill and Lumber Company was interested as desiring to use for a lumber yard the ground so proposed to be vacated, and he, the said Coyne, did then and there propose to the said Liebke that he (the said Coyne) be employed and paid a fee of ten thousand dollars to aid and assist in the passage of the said bill or ordinance then pending in the said House of Delegates; as he, the said William R. Coyne, then and there well knew.
“And so the grand jurors aforesaid, upon their oath aforesaid, do say that the said William R. Coyne, at the city of St. Louis aforesaid, on or about the twenty-eighth day of October, in'the year one thousand nine hundred and seven, in the manner and form aforesaid, knowingly, willfully, corruptly, falsely and feloniously, did commit willful and corrupt perjury. Against the peace and dignity of the State.”

Of the alleged false oaths upon which the perjury is assigned only two were submitted to the jury, to-wit, that he, the said William R. Coyne, did not believe that he, the said William R. Coyne, had ever at any time approached any person, firm or corporation interested in the passage of any ordinance by the Municipal Assembly of the city of St. Louis and proposed to them or either of them to assist in the passage of such ordinances for a money consideration, and that he, the said William R. Coyne, did not recall that he, the said William R. Coyne, had ever at any time gone to any person or representative of any firm or corporation in the city of St. Louis with the specific purpose of securing employment with reference to the passage of some ordinance pending in the House of Delegates, in which such persons were interested. The assignment of perjury as to the first of said alleged false oaths is charged as follows: “Whereas, in truth and fact, he, the said William R. Coyne, in the city of St. Louis, and on or about the 5th day of September, A. D. 1907, visited one Henry Aseher and stated to said Henry Aseher that he, the said William Coyne, had been sent to Henry Aseher by one Ferd Warner (who was then and there a member of the House of Delegates) to confer with said Aseher about and concerning a certain ordinance then and there pending in said House of Delegates, wherein it was purposed to grant to said Aseher the right and privilege of erecting and maintaining an automobile garage, and he, the said William R. Coyne, did then and there propose to the said Aseher that he employ him the said Coyne and pay him a fee of one thousand dollars to aid and assist in the passage of said bill or ordinance then pending in said.House of Delegates; as he, the said William R. Coyne, then and there well knew.” Thus it will be observed that while the alleged false oath as ■ charged was in the one case “that he, the said William R. Coyne, did not believe that he at any time approached any person,” etc., and in the other, that he, the said William R. Coyne “did not recall that he had ever gone to any person,” etc., the assignment of perjury does not, in the first case, charge that the defendant did in truth and in fact then and there believe and well knew that he, the defendant, did at a certain time approach Henry Ascher, etc., and in the second case that the defendant did then and there recall and well knew that he had in the city of St. Louis on the 15th of September, 1907, visited one Joseph Liebke, but the said assignments negative the alleged false oaths by charging the fact to be true, which the defendant in his oath denied upon belief, and by charging the fact to be true, which in his oath the defendant testified that he did not recall, and at the close of each assignment concludes with the averment ‘1 as he, the said William R. Coyne, then and there well knew.”

Section 2039, Revised Statutes 1899, provides that “in any indictment for perjury, it shall be sufficient to set forth the substance of the offense charged, and by what court or before whom the oath was taken, averring such court or person to have competent authority to administer the same, and that the matter or testimony alleged to be false was material to a certain matter or issue named, without setting forth the particular facts showing its materiality, together with the proper averments to falsify the matter wherein the perjury is assigned.” This indictment sets forth the substance of the alleged false oath, a legally organized grand jury, and the name of the foreman thereof before whom tbe oath was taken, the taking of the oath and the authority of the foreman to administer such oath; that the testimony’alleged to be false was material and the matter and issue under investigation. But the question arises as to whether there were proper averments to falsify the matter wherein the perjury is assigned. The indictment does not traverse and negative the alleged false oath by ^charging that in truth and in fact the said William R. Coyne did then and there believe and well know that he did at the time and place mentioned in the first assignment of perjury approach Henry Ascher and propose for the fee of one thousand dollars to assist in the passage of the ordinance, but charges that in truth and in fact, the defendant did visit Henry Ascher at the time and place mentioned and did propose for a fee of one thousand dollars to assist in the passage of the said ordinance, “as he, the said William R. Coyne, then and there well knew.” In Brown v. State, 57 Miss. l. c. 436, it was said, “The averment in an indictment for perjury that the accused knew that the matter sworn to was false is necessary only where the oath is as to the belief of the affiant. In such eases, it is held that knowledge of the affiant to the contrary must be averred. [State v. Lea, 3 Ala. l. c. 605 and 606.]” In the case last cited, it was said, ‘ ‘ In the present case, the matter sworn to was not that the prosecutors committed a larceny, though the effect of the affidavit was to charge them with that crime, and thereby to commence a prosecution, but was, that the defendant believed that they had committed such crime. The averment in the indictment that no such crime was committed by them does not show that the defendant swore falsely. In order for the assignment to produce this consequence, it should also have been averred that the defendant well knew the contrary of that of which he stated his belief to be true. Such are the most approved precedents.” [2 Chitty, C. L., 312, 320; Roscoe’s Cr. Ev., 684; 2 Russ. 542.] “We are compelled,” said the court, “to resort to precedents as persuasive authority, in the absence of decisions upon this point, but independent of them, we think it clear from the reason of the thing that the assignment should form an issue upon the precise matter sworn to.” The object of the assignment of perjury is to falsify by averments in the indictment those parts of the defendant’s statements on oath which are intended to charge him on the trial with having committed the offense in question. And in negativing the defendant’s oath where he was sworn only to his belief, it should be averred either that the defendant did not believe what he swore, or that he believed and well knew the statements made by him, under oath, were false. At common law the form of this averment was, “All of which statements made by the said J. S., the said J. S. then and there well knew to be false.” [2 Whar., Precedents of Indictments, sec. 577.] In State v. Ah Lee, 18 Oregon l. c. 543, it is said that notwithstanding the statute in regard to indictments of perjury, “it is not intended by this to suggest that knowledge of the falsity of the matters sworn to is eliminated from this crime. If such knowledge was a necessary ingredient of the crime before the enactment of the Code, it is so still. The Code has wrought no change in the substance of the crime. It has only abolished useless forms.” In Cook’s Case, 1 Rob. (Va.) 729, “An indictment against an insolvent debtor for perjury in swearing to a schedule which did not discover certain debts owing to him, was held bad on demurrer for not averring that he well knew and remembered that the omitted debts were then justly due and owing to him. ’ ’ In that case the indictment charged that the defendant falsely and corruptly swore that the schedule contained, to the best of his knowledge- and. remembrance, a full account of bis estate, and such debts as were owing to him, when, in truth, certain debts owing to him (which were described in the indictment) “were not embraced or included in the said schedule so subscribed and delivered by the said Cook, and the said Cook then and there well knew and remembered that the said schedule did not contain the said debts.” But there was no averment that the defendant knew or remembered that the debts omitted in the schedule were owing to him. And the whole court held that this indictment was bad in not averring that the defendant at the time of giving in the schedule and taking the oath well knew and remembered that the debts charged to be improperly omitted in the said schedule were then justly due and owing to! him. It will thus be seen that the authorities are practically uniform in holding that in negativing a defendant’s oath, where he has sworn only to his belief, it is necessary to charge that he well knew the contrary of what he swore, as his knowledge is a necessary ingredient of the crime in such cases.

Now the matter upon which the perjury was assigned in this case, clearly was that the defendant had corruptly and falsely sworn that he did not believe that he had ever approached one Henry Ascher and proposed to him to aid in the passage of an ordinance for a given fee, and that he did not recall that he had ever at any time gone to any person or corporation with the view of securing employment with reference to the passage of an ordinance. The matter sworn to by him was not that he had not done these things, but that he had falsely testified that he did not believe that he had ever gone to Ascher and did not recall that he had ever done these things, As was said in State v. Lea, 3 Ala. 605, the averment that he did approach said Ascher does not show that he testified falsely. In order to produce this consequence, it was necessary for the pleader to have averred that the defendant believed and' well knew that the statements made by bim to the effect that be did not believe and did not recall, were false. And tbe allegation at tbe end of tbe averment that tbe defendant did solicit said fees as charged “as he then and there well knew,” in our opinion falls far short of the requirements of the common law, which has not been modified by our statute in regard to the assignments of an indictment for perjury wherein knowledge is of the essence of the crime.

In 2 Chitty’s Crim. Law, mar. page 312, that learned and accurate author, speaking upon this subject, says: “These averments or assignments of perjury, as they are technically termed, should be specific and distinct, in order that the defendant may have notice of what he is to come prepared to defend, and it would, therefore, be insufficient to aver generally and indefinitely that the defendant’s oath was false. And where an indictment for perjury committed in the insolvent debtors ’ court alleged that the defendant falsely, etc., swore ‘that his schedule presented to that court contained a full, true and perfect account of all debts owing to him, whereas in truth and in fact, the schedule did not contain a full and true and perfect account of all debts owing to him, ’ without specifying any debts omitted, it was held that this indictment was bad. [1 Ry. & M. 210.] ”

It results that, in our opinion, the indictment was insufficient. It may be added that the indictment may be assailed in this court for the first time, as the defect that it does not state facts sufficient to constitute a crime is one which is apparent upon the face of the record. Having reached the conclusion that the indictment is invalid upon the first assignment of error, we deem it unnecessary to pass upon the second and third assignments, as they may he cured in a subsequent indictment, but as the judgment must be reversed and the cause remanded and a new indictment may'be found, the fourth assignment, to-wit, the exclusion of the evidence tending to prove that down to a date recently before the alleged false swearing, the defendant apparently stood on the brink of paresis and that his memory was wholly unreliable, should be considered, in order to advise the circuit court, if another indictment is found, of our views as to the admissibility of this testimony.

It seems that the circuit court admitted this evidence and then afterwards by an instruction excluded it. The language of the instruction was as follows: “You are instructed that all testimony introduced by the defense for the purpose of showing total or partial insanity of the defendant on the 28th of October, 1907, will be disregarded by you for the reason that such testimony is insufficient to establish such defense.”

As we have already seen, the knowledge of the defendant of the falsity of his testimony before the grand jury is of the very essence of the charge against him in this case. The purpose of the testimony offered and excluded by the court, was not to establish that the defendant was insane, but that owing to disease and nervous disturbances he had evinced a great loss of memory, up> to April, 1907. This testimony was not for the purpose of showing that he was either wholly or partially unable to appreciate the moral or physical consequences of an act, but to show that his memory was wholly unreliable, and this not by himself but by other witnesses who had occasion to observe his conduct independent of this charge. We can not see any reason why it was not competent for the defendant to introduce this testimony as tending to show the jury that, notwithstanding they might believe beyond all doubt that he did in fact solicit employment from Ascher and others to aid them in getting their ordinances through, still thht, owing to this failure of memory, he did not recall and did not remember, at the time, these propositions to Ascher and others. The indictment and the plea of not guilty tendered the issue to the jury whether the defendant honestly believed, as he stated, or whether honestly he did not recall those visits to Ascher and others. “Memory,” says Sir William Hamilton, “is the power of retaining knowledge in the mind. The mental power of recognizing past knowledge.” That men may and do have what is denominated unsound memories although otherwise of sound mind, is a matter of common knowledge. It is most generally observable in persons of old age, who have lost the power to remember past events, but no one would class them as insane persons. That such a person might do an act and be perfectly conscious of it, and of its moral and legal effect, and yet forget it, we take it is not open to dispute. Of course, it would be for the jury to credit or discredit this testimony and believe or not believe it, as it appeared reasonable or unreasonable to them, but the question here is one of competency. Did the defendant have the right to show to the jury that he was in a condition bordering upon paresis or a partial paralysis affecting his muscular motion, due to a disorder of the central nervous system, and that this had so affected his memory that he was known in the ordinary transactions of business to forget one day what had occurred the day before or a week before? We think that the court in ascribing the offer of this evidence to an attempt to prove insanity, either total or partial, misapprehended the purpose of the evidence, and that its instruction in withdrawing it on that ground from the jury was erroneous. The whole purpose of the testimony, as we view it, was to place the jury in possession of the condition of the defendant’s mind at the time of the alleged perjury, and to allow them to say whether the statements ■ of the defendant before the grand jury, that he did not believe or did not recall his statements to Ascher and others, were honest or not. And if they were honest, then he had not committed perjury. It is not for us to credit or discredit this statement in view of all the testimony in the case, but it was a question of fact for the jury to determine. Our conclusion is that the court committed error in excluding this testimony from the jury by its instruction.

For the reasons given the judgment is reversed and the cause remanded so that the circuit attorney may cause a new indictment to be preferred if he shall so desire, and to that end that the defendant should be recognized for the further action of the grand jury if deemed proper by the circuit court.

Fox, P. J., and Burgess, J., concur.  