125 Ky. 273 | Ky. Ct. App. | 1907
Opinion op the Court by
Reversing.
This is an appeal from a judgment of the Lee circuit court sustaining a demurrer to an indictment returned by the grand jury of that county against appellee for perjury.
The indictment is as follows: “Lee Circuit Court. The Commonwealth of Kentucky v. Arthur Combs. The grand jury of Lee county, in the name and by the authority of the commonwealth of Kentucky, accuse Arthur Combs of the crime of perjury, committed as follows, to-wit: That said Arthur Combs on the 3d day of July, 1906, in the county aforesaid, after being duly sworn by Ibzan McGuire, a justice of the peace of Lee county, to testify the truth on the examining
As the indictment in form and substance appears to allege such facts as are necessary to constitute the crime of perjury, we would be at a loss to know upon what ground the demurrer was sustained by the lower court, but for the information furnished by the brief of the Attorney General, which advises us that it was because it appears from the language of the indictment that the alleged false statement made by
This conclusion of the couH was doubtless based on section 71, subsee. 3, of the Criminal Code of Practice, which provides: “When any person is arrested, charged with homicide, he shall be carried before the county judge for an examining trial, if the county judge is absent from the county, or cannot properly preside in the case, the party arrested shall by the officer or person having him in charge, be carried to the justice of the peace, living nearest to the county seat, for an examining trial, or to the police judge of the town which is the county seat, for an examining trial. If the justice of the peace be abse^ from his district, or police judge be absent from the town, • or either of them cannot properly preside, then any other justice of the peace may act as an examining court in the trial of the person arrested.’.’ The ruling of the circuit court in sustaining. the demurrer cannot be justified upon the ground indicated. There is no question but that a justice of the peace may act as an examining court
Section 134, Cr. Code Prac., provides: “In an indictment for perjury or subornation of perjury, it is sufficient to set forth the substance of the controversy or matter in respect to which the offense was committed, and in what court and before whom the oath alleged to be false was taken, and that the court, or the person before whom it was taken, had authority to administer it, with proper allegations of the falsity of the matter on which the 'perjury is assigned, but the indictment need not set forth the pleadings, record or proceedings with which the oath is connected, nor the commission or authority of the court or person before whom the perjury was committed. ’ ’ The indictment seems to conform to' all the requirements of the section supra. Its allegations that appellee was “duly sworn by Ibzan McGuire, a justice of the peace of Lee county, to testify the truth .on the examining trial in the ease of the commonwealth of Kentucky against John P. Gum, Arthur Combs, and John Anderson, charged with the murder ■of Wm. Newman, then pending before the said Ibzan
Judgment reversed, and cause remanded for further proceedings consistent with the opinion.