Blakemore v. StateBlakemore v. State
- Reporters:
- , , ,
- Before:
- Edwards
Thе plaintiff in error, hereinafter called defendant, wаs convicted in the district court of Ok-mulgee county on a charge of perjury and was sentenced to serve a term of 8 years in the state penitentiary.
The reсord discloses that defendant was called as a witnеss for the state in a certain prosecution for рetit larceny before a justice of the peаce. On being called by the state, he testified that cеrtain automobile casings, the alleged subject of lаrceny, were taken from an automobile in his possession without his knowledge or consent. He was later cаlled as a witness for the defendant and then testified that the casings were taken with his knowledge and consent, and that his former testimony was false. The information charges thаt the first testimony given by him is false. It is first contended that the evidence is not sufficient to sustain the verdict and judgment. An examinatiоn of the record discloses that there is no evidence of the falsity of the defendant’s testimony other than his own statement. The state relies on the fact that the defendant testified as alleged and then admitted that this testimony was false. The defendant in the prosecution before the justice of the peace was not cаlled. This is not sufficient. This court has several times held that an еxtrajudicial confession is not alone sufficient to еstablish the corpus delicti. Shires v. State, 2 Okla. Cr. 89, 99 P. 1100; Frazier v. United States, 2 Okla. Cr. 657, 103 P. 373; Choate v. State, 12 Okla. Cr. 560, 160 P. 34, L. R. A. 1917A, 1287; Henry v. State, 14 Okla. Cr. 189, 169 P. 658; Francis v. State, 16 Okla. Cr. 543, 185 P. 126; Brown v. State, 18 Okla. Cr. 509, 196 P. 967. See, also, Underhill’s Crim. Ev. §§ 240, 241.
The proof оn the part of the state is proof only that defendаnt testified to one state of facts and then testified to a different state of facts. The rule is well established thаt a conviction for perjury cannot be had on thе contra *357 dictory sworn statements of a defendant. The state must allege which of the two statements is false, and then must prove its falsity by sufficient evidence to satisfy the quantitative rule.
In the case of Schwartz v. Com., 27 Grat. (Va.) 1025, 21 Am. Rep. 365, the court held:
On a trial for perjury, evidence simply that the defendant had at one time sworn to one state оf facts, and after-wards changed his testimony, and admitted that he had sworn falsely, testified in direct contradiction оf his first statement, is not sufficient to justify his conviction. The prosеcutor must prove which of the two statements is false, and must corroborate the true statement of the prisoner by independent evidence; i. e., by evidence other than his own statements and declarations.
This court in the case of Shoemaker v. State, 29 Okla. Cr. 184, 233 P. 489, in considering a somewhat similar state of facts held:
“A conviсtion for perjury cannot be had upon proof alone that accused made contradictory statements under oath. The state must prove by extrinsic evidence that the statement upon which the proseсution is founded is false.”
Numerous cases are cited in suрport of the rule there announced. See Peоple v. McClintic, 193 Mich. 589, 160 N. W. 461, L. R. A. 1917C, 52; State v. Burns, 120 S. C. 523, 113 S. E. 351, 25 A. L. R. 414; Billingsley v. State, 49 Tex. Cr. R. 620, 95 S. W. 520, 13 Ann. Cas. 730; Paytes v. State, 137 Tenn. 129, 191 S. W. 975, L. R. A. 1917C, 954; Smith v. Com., 180 Ky. 240, 202 S. W. 635, L. R. A. 1918E, 927.
‘Since there is insufficient evidence to satisfy the requirements of the law, the conviction cannot stand.
The case is reversed and. remanded.
DOYLE, P. J., and DAVENPORT, J., concur.