Adams v. Commonwealth

123 Ky. 258 | Ky. Ct. App. | 1906

Opinion of the Court by

Chief Justice Hobson.

Reversing.

Appellant, Joe Adams, was indicted in the Boyle circuit court for false swearing. He demurred to the indictment. His demurrer was overruled. On the trial he was found guilty, and his punishment fixed at one year in the penitentiary. The indictment against him is in these words: “The grand jury of the county of Boyle in the name and by the authority of the commonwealth aforesaid accuses Joe Adams of the crime of false swearing committed in manner and form as follows: The said Joe Adams in the county and State aforesaid, on the-day of April, 1905, and before the finding of this indictment, having been duly sworn as a witness by and before the grand jury impaneled and George Mahan the foreman thereof, the said grand jury and foreman of said grand jury having the legal right to administer the said oath, of the Boyle circuit court at its April term, 1905, to make true answers to all questions that might be asked him, in answer to a question as to whether he had ever bought any whisky from any one in Boyle county within the last 12 months last past, which was a question bearing upon any violation of the local option law then and there in sa,id county in full force and effect and was then and there being legally and of authority investigated by said grand jury, the said grand jury having the authority so to do, did then and there willfully, knowingly, and falsely testify, and state that he had not bought any whisky within the said 12 months last past in said county from any one when in fact and truth he had bought whisky within the said 12 months last past in said county from one Willis Harris. Against the peace and dignity of the commonwealth of Kentucky.”

The indictment was found under section 1174, Ky. St. 1903. “If any person, in any matter which is or may be judicially pending, or which is being investigated by a grand jury, or on any subject on which he can' legally be sworn, or on which he is required to be sworn, when sworn by a person authorized by law to administer an oath, shall willfully and knowingly swear, depose, or give in evidence that which is false, he shall be confined in the penitentiary not less than one nor more than five years.” The indictment sufficiently shows that the accused was sworn in a matter which was being investigated by the grand jury and which the grand jury had authority to investigate. Bnt it is not sufficiently charged that the accused knew the testimony he gave to be false. Knowledge of the falsity of the evidence is essential to the offense. In Williams v. Commonwealth, 113 Ky. 656, 23 Ky. L. R. 2046, 68 S. W. 871, we said: “The corrupt intent to swear falsely is (the gist of the offense no less than of the crime of perjury.”

In Goslin v. Commonwealth, 121 Ky., 90 S. W. 223, 28 Ky. Law Rep. 683, we again said: “It is for the jury to say whether the defendant is guilty. They must say not only that the testimony was given about which the inquiry is being made, but that it is established beyond reasonable doubt to have been corruptly false.” It may be that the defendant willfully, knowingly, and falsely testified as stated in the indictment, and yet it may be that he did so innocently and thinking he was 'telling the truth. To illustrate: It may be that he testified that he had not bought any whisky in the county within 12 months last past when in fact he had bought whisky within that time from Willis Harris, and it may also be true as testified by him on the trial that at the time he was before the grand jury his recollection was that the transaction with Harris occurred more than 12 months before. It is true the indictment substantially follows the form prepared by the codifiers and printed at the back of the Criminal Code of Practice, but as the corrupt intent is the gist of the offense it is insufficient. The indictment should have charged, not only that in fact and in truth he had bought whisky within 12 months from Willis Harris, but that he so knew when he testified before the grand jury, and the court erred therefore in overruling the defendant’s demurrer to the indictment. The same defect exists in the instructions of the court to the jury. The corrupt intent is not submitted to the jury by the instructions. The court should also have instructed the jury that the guilt of the accused must be established beyond a reasonable doubt by tbe testimony of- two witnesses or of one witness and strong corroborating circumstances. Goslin v. Commonwealth, supra.

There was sufficient evidence to submit the case to the jury, but for the reasons indicated the judgment is reversed, and cause remanded, with directions to the circuit court to sustain the demurrer to the indictment, and for further proceedings consistent herewith.