122 Ky. 874 | Ky. Ct. App. | 1906
OPINION op the Court by
Reversing.
The grand jury of Jefferson county returned the following indictment: “The grand jury of the county of Jefferson, in the name and by the authority of the Commonwealth of Kentucky, accuse Henry Schwieters of the crime of knowingly, willfully, unlawfully, and feloniously swearing to that which was false in a matter which was judicially pending, when he had been sworn by a person authorized by law to administer an oath, committed in manner and form, as follows., to wit: ‘ ‘ That the said . Henry Schwieters on the-day of December, A. D. 1905, in the city of Louisville, in the county of Jefferson, being called to testify as a witness in a certain action wherein one Charles Scholl was the plaintiff and one Henry Bell wa's the defendant, and wherein the said plaintiff prayed the court to adjudge that at the election held in Jefferson county on November 7, 1905, he, the plaintiff, was elected to the office of sheriff of Jefferson county, or that neither he, the plaintiff, nor the defendant were fairly elected to the said office, and that there was no election held on that day, which action was then pending in the chancery branch, first division, thereof, a court
The indictment was found under section 1174, Ky. Stats., 1903, which is as follows: “If any'person, in any matter which is or may be judicially 'pending, or which is being investigated by a grand jury, or on any subject in which he can be legally sworn, or on which- he is required to be sworn, when sworn by a person authorized by law to administer an oath, shall willfully and knowingly swear, depose of give in evidence that which is false, he shall be confined in the penitentiary not less than one nor more than five years.” It will be observed that the statutory offense is committed when- a person shall willfully and knowingly swe-ar falsely on any subject on which he is required to be sworn, when- sworn by a person, authorized by law to administer an oath.; The indict"ment charges- that the defendant in the city of Louisville and county of Jefferson being called to testify as a witness in a certain 'action after being, duly sworn by Clarence Walker a notary public' having authority to administer oaths- and take depositions, did then and there willfully, knowingly, and
It is also insisted that the falsity of the matter alleged to have been sworn to by the defendant is not properly negatived by special averment of its truth. In Commonwealth v. Still, 83 Ky., 275; 8 Ky. Law Rep., 208, it was held that, where the defendant wias indicted for swearing falsely that he did not see a certain game of cards, it was not sufficient for the indictment to state merely that his statements were false and known by him to be false, but it should have been averred that he did see the game of cards referred to. The same rule was followed in Commonwealth v. Weingartner, 27 S. W., 815; 16 Ky. Law Rep., 221, where the charge was that the defendant had sworn that a house had been sublet without his. knowledge or consent and it was not averred in the indictment affirmatively that he knew of the subletting of the house and consented to it. So, in Commonwealth v. Porter, 32 S. W., 138; 17 Ky. Law Rep., 554, where the charge was that he had sworn falsely in stating that he did not see a certain person at a certain time and there was no averment that he did see the person at that time.
It is insisted that the charge in the indictment' that “in truth and in fact it was true, and said Henry Schwieters then and there well knew it to be true, that the said Alex Metz did not, at the time stated in the said deposition of the said Henry Schwieters, come to the said voting place,” etc., is not a charge that Metz came there, and that Schwieters knew he came there, on the day named between 15 minutes past 5 o’clock and about 25 minutes after 6 o’clock, as stated in the preceding part of the indictment. It
Judgment reversed, and cause remanded, with directions to the circuit court to overrule the demurrer to the indictment.