Barnett v. State

| Ala. | Nov 15, 1889

McCLELLAN, J.

The indictment in this case sufficiently alleges every ingredient of the crime of perjury. It states the substance of the proceeding in which the false testimony was given, the materiality of the testimony, the name of the officer by whom the oath was administered, and that he was authorized by law to administer the oath, the fact testified to on which perjury is assigned, and that the defendant’s testimony in that behalf was willfully and corruptly false. The demurrer was properly overruled. — Code, §§ 3813, 3908; Hicks v. State, 86 Ala. 30" court="Ala." date_filed="1888-12-15" href="https://app.midpage.ai/document/hicks-v-state-6513321?utm_source=webapp" opinion_id="6513321">86 Ala. 30; Williams v. State, 68 Ala. 551" court="Ala." date_filed="1881-12-15" href="https://app.midpage.ai/document/williams-v-state-6511045?utm_source=webapp" opinion_id="6511045">68 Ala. 551; Peterson v. State, 74 Ala. 34" court="Ala." date_filed="1883-12-15" href="https://app.midpage.ai/document/peterson-v-state-6511689?utm_source=webapp" opinion_id="6511689">74 Ala. 34; Davis v. State, 79 Ala. 20" court="Ala." date_filed="1885-12-15" href="https://app.midpage.ai/document/davis-v-state-6512316?utm_source=webapp" opinion_id="6512316">79 Ala. 20.

The bill of sale, about which the defendant testified before the grand jury, was presumably in the hands of Johnson, who was being prosecuted for having, by undue means, obtained Barnett’s signature to it. It would scarcely be reasonable to require the prosecution to inform Johnson that the paper was needed before the grand jury in order to get an indictment against him, and to require him to produce it, or to expect that he would produce it, for such a purpose. The objections to the testimony of Mr. Lomax, the solicitor, as to what occurred before the grand jury in reference to the paper, on the grounds that it was not produced, or its loss accounted for, and that the witness had never seen it, were patently without merit.

Morrill, a witnesss called to impeach the character of Johnson, a witness for the State, having, on cross-examination, testified that he and Johnson were friendly, it was entirely competent for the prosecution to ask him the further question, “If he did not go to arrest Johnson with a shot-gun, upon a warrant sworn out by himself?” The evidence thus sought to be elicited tended directly to contradict the friendliness deposed to by the witness, and to taint his testimony as to Johnson’s bad character with the element of personal ill-will; and hence to lessen its weight with the jury. And Morrill having replied that, while he did not swear out the warrant, he did go to arrest Johnson with a gun, along with a special officer, who had the warrant, we see no error in permitting the State to further ask him, who this special officer was.

The general rule unquestionably is, that the advice of counsel can afford no protection against the punitive consequences of criminal acts. Whatever the rights of a defendant are in respect to the doing of the act charged, they are available to him in defense, whether he was advised of them or not; and no amount of assurance, even from those learned in the law, of the existence of rights in the premises, which in point of fact do not exist, can justify or excuse an act otherwise criminal. The giving of such assurance or advice neither increases nor diminishes criminality in any degree, and evidence of it is, therefore, irrelevant.—Weston v. Com., 111 Pa. St. 251.

One of the exceptions to the general doctrine is found in those cases of alleged perjury, in which the truth or falsity of the matter charged as being willfully and corruptly false is a mixed question of law and fact. If, in such case, the facts are fully and in good faith laid before counsel, and upon them he advises, as a matter of law, that a certain statement may be made which will be the truth, and, acting on this advice, the client swears to the statement, believing he has been correctly advised, it can not be said that this oath is willfully and corruptly false, and hence a charge of perjury can not be predicated upon it. Instances of this kind usually occur with respect to affidavits, the truth of which depends upon some question of law, — as, for attachment, where the question is fraud vel non in the disposition of property by the debtor; or in a bankrupt’s schedule, and he is wrongly advised that certain property may be omitted, &c. United States v. Conner, 3 McL. C. C. 573; Hood v. State, 44 Ala. 81; State v. McKinney, 42 Iowa, 205" court="Iowa" date_filed="1875-12-16" href="https://app.midpage.ai/document/state-v-mckinney-7096654?utm_source=webapp" opinion_id="7096654">42 Iowa, 205; United States v. Stanley, 6 McLean, 409" court="None" date_filed="1855-05-15" href="https://app.midpage.ai/document/united-states-v-stanley-8639564?utm_source=webapp" opinion_id="8639564">6 McLean, 409. We do not think the advice offered in evidence in the case at bar comes within the doctrine of the cases cited. The matter testified about was purely one of fact; it involved no question of law. Whether Johnson had induced the defendant to sign the due-bill, by the false pretense that it was another paper, and that his signature was wanted only as an attestation to the subscription of the party bound thereby, was a matter affording no room for professional advice. Barnett knew better than the attorney could have known what the real fact was, and no sort of advice based on the assumption of fact, which he knew to be false, could justify or excuse anything he did under it. Moreover, it does not appear in the statement accompanying the offer of this evidence, that he ever laid the facts before the attorney, but left him to draw the conclusion upon which the advice proceeded from other sources. A proper showing was not made, and could not, in the nature of things, be made, for the admission of this evidence. It was properly excluded.

The indictment charges, that the defendant swore before the grand jury that one Johnson had obtained his signature to a certain bill of sale by false pretenses, and that this statement was false. We are unable to see how Barnett could defend against this prosecution for perjury, in respect to that statement, by showing that Johnson had not obtained his signature, in that his subscription to the paper was not a signature within the terms of the statute. He might as well attempt to rest his defense on the fact that he had not put his hand to the paper at all, or, in other words, that Johnson had not obtained his signature, either by false pretense or otherwise; and in either case he would be in the very anomalous attitude of defending against a charge of perjury, by showing that his alleged false statement was false in fact. So that it is wholly immaterial whether the subscription by mark, shown in the testimony, was a “ signature” within the meaning of section 3813 of the Code. Whether it was or not, the defendant is equally guilty. That inquiry would be pertinent, if Johnson was on trial for obtaining Barnett’s signature by false pretenses; but it is wholly foreign to any issue presented by this record.

In response to the arguments of counsel on either hand, it would, perhaps, be as well to say, that we do not doubt that the offense denounced by section 3813 would be committed, by obtaining an unattested signature by mark to a bill of sale by false pretenses, since forgery might be predicated of a bill of sale so signed, and by the terms of that section it is made to extend to all “written instruments the false making of which is forgery.” — Bickley v. Keenan, 60 Ala. 293" court="Ala." date_filed="1877-12-15" href="https://app.midpage.ai/document/bickley-v-keenan--co-6510066?utm_source=webapp" opinion_id="6510066">60 Ala. 293.

Affirmed.