13 Ga. App. 541 | Ga. Ct. App. | 1913
The defendant was indicted for the offense of perjury. He filed a plea of former jeopardy, attaching thereto a copy of another indictment for perjury against him and a copy of the record of his acquittal upon that charge. The plea of autrefois acquit and the issue formed upon the defendant’s plea of not guilty in the present case were, by consent of counsel, tried together, and the jury found against the plea in bar and returned a verdict of guilty. The defendant moved for a new trial, and excepts to the judgment overruling the motion.
The question is presented whether one who has taken a lawful oath as a witness in a judicial investigation, and who, as such witness, knowingly and wilfully makes .more than one absolutely false statement as to more than one matter material to the issue, can more than once commit the offense of perjury in the same investigation and under the sanctity of the same oath. We are of the opinion that the identity of the proceeding and of the oath administered the witness excludes the possibility that the witness is" guilty of more than one perjury in the particular investigation. There is but one violation of the oath. The offense of perjury is most detestable. The perjurer should be most severely punished; for the administration of justice depends upon the truth, and perjury would undermine and destroy the administration of justice; and yet to our mind the matter is not unlike a case of murder, in
The question, then, is presented as to whether the 'alleged false-statement in the indictment on which the defendant had previously been tried, was material. If it was, the acquittal of the accused upon that indictment would bar any further prosecution for perjury alleged to have been committed in the particular-judicial investigation. If the statements alleged to have been knowingly, wilfully, and falsely made in the indictment upon which the accused had been tried were not material to the issue,, then the plea in bar would be worthless. In the former ease in which the defendant in this case was tried it was alleged in the indictment that he wilfully, knowingly, absolutely, and falsely swore that he was a single man, when in truth and in fact he was not a single-man, but was a married man; and an investigation of the testimony in the record shows that while this testimony was apparently irrelevant and immaterial, it was, in the case in which the defendant was testifying, a material matter, because it was the statement of a fact which, if true, would perhaps have influenced the jury in the case then pending and in which the defendant was a witness. The trial judge, by proceeding with the trial upon the former indictment upon which the defendant was acquitted, adjudged Black’s-statement as to his marital status to be material; and certainly the State, by insisting upon the conviction of the defendant for falsely stating that he was a single man when in truth he was-married, is estopped to deny that his testimony as to this point was material. We do not comprehend -the real materiality of' that portion of Black’s testimony which was the basis of the indictment against him for perjury which was first tried, but the State invoked the ruling that this testimony was material, and,, by overruling the general demurrer raising that question, the trial court adjudged it to be material.
The case in which Black was a witness was that of Mrs. Maynard against the Western & Atlantic Railroad Company, an action for damage alleged to have been caused by the railroad company’s-
It is true that under the ruling in the Askew case, 3 Ga. App. 79 (59 S. E. 311), the indictment under which the accused was previously tried may have been subject to demurrer, in that it did not allege how or why the alleged false testimony was material in the trial of the ease of Mrs. Maynard against the Western & Atlantic Railroad Company; but since that point is not involved, it merely becomés a question whether the testimony as to Black’s marriage was material. If it was material, as the trial court held it to be, then his acquittal upon the charge of perjury, as to any matter he may have testified to in the trial of the case of Mrs. Maynard against the Western & Atlantic Railroad Company, is a bar to trial for any other false statement made by him under the same oath and in the course of the same judicial investigation.
The test which has been applied in this State in determining whether a former prosecution is a bar to another is the solution of the question whether the two accusations refer to the same transaction, or, in other words, whether, under the two different charges, it is sought to punish the accused more than once for the same
In the first indictment for perjury the State was required to prove that'Black was lawfully sworn; that he consciously assumed the obligation of the oath with an understanding of its purpose and obligation; that after being so sworn he wilfully and knowingly testified absolutely falsely as to a matter which was of sufficient materiality to influence the finding of the jury in the case then pending. If the State failed to prove any of these essentials of the crime of perjury, and an acquittal resulted, the defendant is none the less protected by his plea of former jeopardy; for the plea of former adjudication extends not only to what was proved on the former trial, but also to everything that could properly have been proved.
Eor another reason it would seem that the plea of former jeopardy would be good (if we are right in holding that there can only be one indictment predicated upon false testimony under the same oath), viz., because the verdict acquitting Black would be conclusive upon the State and constitute an, estoppel by judgment upon the point that Black was not sworn as a witness in the case of Mrs. Maynard against the Western & Atlantic Railroad Company. An inspection of the record in the former trial of Black for perjury shows that the defendant at that time admitted that he had testified as stated in the bill of indictment. The court charged the jury that the facts testified to by him were material to the issue in the case of Mrs. Maynard, against the Western & Atlantic Railroad Company; and thus the only defense left open to Black was
We think, therefore, that the trial judge erred in refusing to grant a new trial. - ( Judgment reversed.