Brown v. State
47 Fla. 16
Fla.
1904
Check Treatment
Taylor, C. J.

Before trial the defendant moved to quash the information ‍‌‌​​‌​‌​‌‌​​‌​‌​​‌​‌‌‌‌​​​‌​‌​‌‌​​‌‌‌​‌‌‌‌‌​‌‌‌‌‍upon the following grounds: “1st. Because the *18said information is vague, indefinite and so uncertain as not to be understood by the defendant.

2nd. Because thе 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 defendаnt 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 direсtly 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. Prоc. 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 Jаck 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 сounty 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 *19case of the State on trial against the said Adams, and, under the provisions of section 1101 of the Revised Statutes, it was proper and competent for the prosecuting attorney to interrogate him as to contradictory statements made elsewhere, as a prеdicate for impeaching him; and if he was a witness for the defense the prosecution would have the same right on cross-examination under the provisions of section 1102, Revised Statutes, and the making of such contradictory statement by the defendant, therefore, became and was a material matter to be еnquired about in such trial, and so sufficiently appears from the allegations of the information here; and when interrogated as to the making of such contradictory statement, if the witness testified falsely he was guilty of perjury.

While it is necessary that an indictment should show the materiality of the matter alleged to have been swоrn 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 defеndant 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 allegеs, 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 Jаck 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 prosecutоr 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*20tion the defendant answered that he did not so swear, and this latter denial is the basis of this prosecution and conviction. The defendant was the State’s witness and when hе stated simply that he himself had not bought liquors from Adams he did not thereby give evidence that was adverse to the State, but simply disappointed the prosecution in failing to testify tо facts that it expected from him, without in any way deposing anything harmful or adverse to the State’s case against Adams. Under those circumstances it was wholly irrelеvant and immaterial whether the defendant had or had not on other ‍‌‌​​‌​‌​‌‌​​‌​‌​​‌​‌‌‌‌​​​‌​‌​‌‌​​‌‌‌​‌‌‌‌‌​‌‌‌‌‍occasions stated or sworn that he had bought whiskey or beer from Jack Adams, and it was imprоper to permit him to be interrogated, as to such supposed contradictory statements. It was not proper as a predicate for impeаching him, because he had testified to nothing material or adverse to be impeached for (Adams v. State, 34 Fla. 185, 15 South, Rep. 905), and if he had answered that he had sworn or stated on another occasion that he had bought liquors from Jack Adams it would not have aided or harmed the State’s case, against Adams in the slightest degree. So that thе fact as to whether he had or had not on another occasion stated or sworn that he had bought liquors from Adams was wholly immaterial and irrelevant for any рroper or legitimate purpose or issue in the trial of said Adams. The verdict, therefore, was not supported by the evidence, since the evidencе in the case shows that the matter upon which the supposed perjury is predicated was not material to any issue in the case on trial at which it was deрosed. 1

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.