7 Ga. App. 680 | Ga. Ct. App. | 1910
The plaintiff in error was convicted of perjury. His motion for a new trial was overruled, and he" assigns error. The perjury was assigned on the following affidavit: “State of Georgia, Floyd County. Personally came Anthony Sweat, who on oath saith that to the best of his knowledge and belief, Claude Parnés did, on the 7th d‘ay of September, in the year 1909, in the
The motion for a new trial was based upon the usual general grounds, and the following special grounds contained in an amendment: (1) Because the court failed to sufficiently and explicitly set forth the defendant’s contention that the first affidavit he made, and upon which the warrant against Barnes was issued, was true; that said affidavit only alleged to the best of his knowledge and belief, and defendant had sufficient grounds upon which to base his belief; that the last affidavit made by the defendant was false, and was not freely and voluntarily made, but was made under coercion and promises of reward and hope of benefit, and it was not the intention of the defendant to swear falsely when he made his first affidavit. (2) Because of the failure of the court, although requested in writing, to charge the law relating to confessions. (3) Because the court erred in charging the jury as follows: “You look to the indictment and .see the charge in its entirety. It is charged in the indictment, in substance, 'that the defendant wilfully, knowingly, and absolutely swore falsely, in swearing out this warrant upon which this man Barnes was arrested. That is the issue upon which you are to pass, as to whether this defendant
1. The 3d, 4th, and 5th of these grounds of the amended motion, when considered in connection with the entire charge, are absolutely without any merit. The judge fully and fairly charged the contentions of the defendant. He. charged fully and correctly the law with reference to confessions, and he cautioned the jury that the confession should be freely and voluntarily made, without.
2. As to the 6th ground, in which it is claimed that the defendant could neither read nor write, and that there was no evidence that the affidavit was read over to him, or that he knew its contents when he made it, it does appear that the defendant was illiterate and that he signed the affidavit by his mark, but the evidence distinctly shows that he knew its contents. This is shown by the contents of what is called his second affidavit. The evidence is that before he made the second affidavit the attesting officer called his attenion to the contradictory character of his two statements, and warned him that he was in fact contradicting the contents of the first affidavit made by him, and that in doing so he was committing the offense of perjury. His own statement expressly shows that when he made the first affidavit, he-was asked, by the justice of the peace who attested it, if Claude Barnes, as stated in the affidavit, had been guilty of gaming, and that ho replied that he had been; and this justice also testifies that he was particular to have the defendant swear that the contents of the affidavit were true as therein stated. Therefore the jury were fully warranted in the conclusion that the defendant knew the contents of his affidavit when he made it.
3. The 7th ground is controlled by the decision of the Supreme Court in the case of Pennaman v. State, 58 Ga. 336, where it is held that an -affidavit made by one to obtain a criminal warrant is material to the issue arising on the warrant, and may be the basis of an indictment for perjury. Such an affidavit, made for the pur
4. In the last ground of the amended motion it is said that the statement in the affidavit upon which the perjury was alleged, that Claude Barnes, “to the best of [the affiant’s] knowledge and belief,” had committed the offense of gaming, was not an absolute statement as to the fact of gaining, and for this reason was not an affidavit upon which perjury could be assigned. The words “to the best of his knowledge and belief” are usually the form of every affidavit upon which criminal warrants are based; and it can not be doubted that such affidavits are sufficient upon which to assign perjury, if the statement therein contained is wholly and wilfully false. One who makes an affidavit “to the best of his knowledge and belief,” as to the existence of a fact, makes an absolute assertion, either that he has knowledge of the existence of that fact, or has information which induces him to believe that the fact does exist; and, therefore, one who swears as to the existence of a fact of which he knows nothing of his own knowledge or otherwise, though it should turn out to, be true, would nevertheless be guilty of perjury. As stated by Bishop in his work on Criminal Law (vol. 2, §1048), “If a man swears to a thing whereof consciously he knows nothing, he commits perjury, for the declaration of the witness is that he knows the truth of what he states; and if he is conscious he does not know it, he means to swear falsely, however the fact may prove to be.” And as stated by him in the same work (vol. 1, §437), “Perjury appears to be regarded as an attempt to subvert justice in a judicial proceeding, for a man commits this offense who testifies to what he believes to be false, or to what he .mows nothing about, though it turns out to be true.” See also 2 Bussell on Crimes (3d Eng. ed.), §597. To state the proposition somewhat differently. Absoluteness is an essential element of perjury, under the statutory definition in this State. If, therefore, a person merely deposes that a thing is true, without disclosing how or whereof he speaks as to the matter, he can not be convicted of perjury, unless the thing asserted to be true was in fact false. But if a person swear that a thing is true “to the best of his knowledge and belief,” he may be convicted, if it appears that he did not believe the thing to be true, and had no knowledge or information on the subject, even though it may have existed un
5. Now as to the general grounds of the motion. We confess that what may be called the general complexion of the case does not strike us very favorably. Here was an ignorant negro in jail, and the evidence shows that the prosecutor in this ease and his lawyer had procured from him this so-called second affidavit. Ho reason appears why the defendant should have made this statement so soon after he had made the first affidavit, and after he had testified in support of the first affidavit on the preliminary investigation against .Claude Barnes for gaining, unless induced to do so as claimed by him. But the question was for the jury, and the court carefully instructed them not to accept the confession contained in this second affidavit, unless they believed it was freely and voluntarily made by the defendant. ' The jury having accepted the confession, and giving to it probative value, were authorized to believe that the statement contained in the first affidavit made by the defendant, that Claude Barnes had been guilty of the offense of gaming, was false, and was wilful perjury, and therefore that he was guilty as charged in the indictment; for, in addition to this contradictory confession, they had the positive testimony of Claude Barnes that he had not been guilty of gaming at any time within the past two years in Eloyd county, and also the specific testimony of several negroes, whom the defendant charged with having participated in the offense of gaming with Claude Barnes, that such was not the truth. The testimony of Claude Barnes, corroborated by the confession of the defendant, would have been sufficient to authorize the jury to convict; for the soundness of the rule has never been questioned, that where there is one witness to prove a contrary state of facts, the confession of the defendant, contradicting the statement made by him on oath, renders unnecessary any additional evidence. Mayhew’s ease, 6 Car. & P. 315; People v. Burden, 9 Barb. 467; 9 Enc. Evidence, 764, and cases cited in the notes. This testimony for the State comes fully up to the requirement of the law, that to convict of perjury there must be two witnesses, or one witness and proof by corroborating circumstances.
<7udgment affirmed.