Commonwealth v. Taylor

96 Ky. 394 | Ky. Ct. App. | 1895

JTJDGE PATNTER

delivered .the opinion op the court.

This appeal is prosecuted by the Commonwealth from a judgment of the Simpson Circuit Court dismissing the indictment on demurrer. The question is as to the sufficiency of its averments to constitute an offense under the statute, 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 legally be sworn, or on which he is required to be sworn, when sworn by a person authorized by law to adminter an oath, shall willfully and knowingly swear, depose or give in evidence that which is false, he shall be confined in tlie penitentiary not less than one nor more than five years.” (The Ky. Stats., sec. 1174.)

Counsel for appellee lias filed no brief, and the court has no suggestion as to the reasons which influenced the action of the court below. The indictment is defective. It makes this, among other averments: “That the defendant did unlawfully and.feloniously and falsely swear and state that he did not know Dan Milliken, when he well did know Dan Millikén. ’ ’ It will be observed that the indictment does not employ the words of the statute descriptive of the offense.

It does not charge that the defendant did, willfully •and knowingly, swear, depose or give in evidence before the grand jury that which was false. The word unlawfully has no place in the statute, and does not in any sense have the meaning of either the word willfully or knowingly, independent of or as used in the statute.

The word “feloniously” does not have the legal significance of either the word willfully or knowingly, or of both. Neither of these words is necessary to be used in the indictment. The offense charged is not a common law but a statutory one. It is wholly unnecessary in an indictment charging false swearing under the foregoing section of the statute, to charge that it was “unlawfully”' or “feloniously” done. The use of either of the words would be surplusage. Shorn of this surplusage, the indictment simply charges the defendant did “falsely swear,” &c. This averment is not sufficient. The defendant could have sworn falsely before the grand jury without committing any offense under the statute. In order that he might commit the offense under the statute, he would have to give the false evidence willfully and knowingly.

In the case of the Commonwealth v. Turner, 8 Bush, 2, the prosecution was under a statute which denounced a penalty against any person who should ‘willfully kill, disfigure or maim any horse,” &c. The indictment charged that the defendant did ^ unlawfully shoot and kill a bay mare,” &c. A demurrer to the indictment was sustained. The court said: “The defendant here is charged with having unlawfully killed the mare of Crutcher. This he may have done, and yet may not have done it willfully.”

It has been held by this court in Taylor v. Commonwealth, 3 Bush, 511, and Conner v. Commonwealth, 13 Bush, 721, that although an offense is not charged in the jrrecise words used in the statute defining it, yet if charged in words conveying the same meaning, the indictment is good. But in prosecutions under this-statute, where it is difficult, if not impossible, to find other words, or by circumlocution, to supply the place of those used in the statute, the indictment should follow the precise words of the statute.

In Commonwealth v. Tanner, 5 Bush, 318, the court said: “When the words of the statute are descriptive of the offense, the indictment should follow the language, and expressly charge the described offense on the defendant, or it will be defective.”

The indictment was defective, because it did not explicitly describe the “matter” which was being investigated by the grand jury, about which the defendant was testifying when he gave the evidence which is charged to be false.

This should have been done, to have fully apprised him of the nature of the charge against him, and that the court might be enabled to determine whether or not the grand jury had authority to make such investigation, and through its foreman administer the oath.

The charge is, that the false evidence consisted in defendant saying he did not know Dan Milliken, and inferentially stating that the purpose of the grand jury was to ascertain if he had seen Dan Milliken gaming. The indictment should have charged that the matter under investigation was the charge of gaming against Dan Milliken

For the foregoing reasons the- demurrer to the indictment was properly sustained.

Judgment affirmed.