47 Fla. 16 | Fla. | 1904
The defendant below, plaintiff in error here, was informed against in the Criminal Court of Record of Escambia county for perjury, the information, omitting its formal commencement and conclusion, being as follows: “That Julius Brown, late of the county of Escambia aforesaid in the State aforesaid, laborer, on the second day of
Before trial the defendant moved to quash the information upon the following grounds: “1st. Because the
2nd. Because the said information does not inform the defendant of the nature of the crime that he is required to stand trial for.
3rd. Because the said. information is multifarious in this that it charges two separate and distinct offenses in one and the same count.
4th. Because the said information is defective in this that it sets forth statements alleged to have been made by the defendant that are not material.
5th. Because the said information is defective in this that it fails to set forth alleged statements by defendant that were material.” The denial of this motion constitutes the first assignment of error.
An information for perjury should either affirmatively allege, or show from other averments, that the false testimony was material to the issue upon the trial of which it was given. 16 Ency. Pl. & Pr. 342, and citations; Miller v. State, 15 Fla. 577; Robinson v. State, 18 Fla. 898. The indictment, at the pleader’s election, may either aver directly that the testimony falsely deposed was material to some issue on trial, or else allege facts from which its materiality will in law appear. 2 Bishop New Cr. Proc. sec. 921; 2 Bish. Cr. Law (7th ed.) sec. 1030. Does the information in this case come up to the requirements of this rule? We think that it does. It alleges that upon the trial of one Jack Adams before the Criminal Court of Record of Escambia county, it was a material issue as to whether the said Jack Adams sold whiskey, wine or beer in Escambia county without first having obtained a license so to do from the proper authority; and that as to this fact the defendant testified that the said Adams did not sell or cause to be sold any whiskey, wine or beer on the twenty-seventh day of June, 1902, or at any time during the said year. Now if the defendant was a witness for the prosecution, and testified as above, then such evidence was adverse to the
While it is necessary that an indictment should show the materiality of the matter alleged to have been sworn to falsely it is also necessary that its materiality shall be shown by the proofs in the case, and if not so proved there can be no conviction.
The defendant moved for new trial upon the ground, among others, that the verdict was contrary to the evidence, and unsupported by it, and the denial of this motion is also assigned as error. This assignment of error is well taken. The record shows that when the prosecution came to the proofs it departed materially from the case made in the information. The defendant at the trial of the said Jack Adams was introduced as a State witness, and instead of testifying, as the information alleges, that Jack Adams did not sell any whiskey, wine or beer, he simply stated in reply to a question by the prosecution that he, the defendant, did not buy any whiskey, wine or beer from Jack Adams on June 27th, 1902, without undertaking to testify as to whether or not Jack Adams did or did not sell it to other parties on that date. Whereupon the State prosecutor asked the question in substance, did you not swear before me in my office here in Pensacola that you bought whiskey and beer from Jack Adams on June 27th, 1902, to which ques
The judgment of the court below is reversed and a new trial awarded at the cost of Escambia county.
Hocicer and Cockrell, JJ., concur.
Carter, P. J., Shackleford and Whitfield, JJ., concur in the opinion.