57 Fla. 7 | Fla. | 1909
On the 19th day of June, A. D., 1907, the grand jurors empaneled and sworn in and for the Circuit Court of Jackson County returned into court an indictment in the words and figures as follows:
“In the name and by the authority of the State of Florida.
In the. Circuit Court of. the First Judicial Circuit of Florida, Spring Term, A. D., 1907.
The Grand Jurors of the State of Florida, sworn and inquiring in and for the body of the County of Jackson, upon their oaths do present that on the 8th day of May, A. D., 1907, there was then and there pending and on trial before the County Judge of Jackson County, Florida, in the County Judge’s Court a certain cause, where
J. Walter Kehoe, State Attorney for the First Judicial Circuit of Florida, Prosecuting for said State.”
A motion to quash the indictment was overruled, the defendant plead not guilty, was tried and convicted. Motions in arrest of judgment and for new trial were overruled; the defendant was sentenced to the State prison for three years, and seeks relief here by writ of error.
The overruling of the motion to quash the indictment is assigned as error.
The defendant moved the court to quash the indictment on the ground, among others, that “there is no specific denial of the truth of the matter sworn to or any negativing of the truth of the matter sworn to.”
That part of the indictment for perjury which expressly alleges the falsity of the testimony given by the accused is technically called the assignment. This is the gist of the offence, not mere inducement; consequently the allegation must be direct and specific, not in terms of uncertain meaning, or by way of .implication.
It is necessary in an indictment for perjury to expressly and positively negative the truth of the alleged false swearing, by stating the facts by way of antithesis. A general denial that the testimony in question was false is not sufficient. In addition to an averment that the' testimony of the accused was false, the indictment should also set forth the truth in regard to the matter at issue. Thus, after stating the substance of what was sworn to. the indictment proceeds: “Whereas in truth and in fact,”
An illustration of the proper practice in this regard is found in the case of Commonwealth v. Still, 83 Ky. 275, where it is said: “It being charged in an indictment for false swearing that the defendant testified falsely that he did not see a game of cards played at a particular time and place, it was not sufficient to state merely that his statements were false, and known by him to be false, but it should have been averred that the accused did see the game of cards played at the time and place mentioned.” In commenting upon the case of Commonwealth v. Still, the Court of Appeals of Kentucky in Ferguson v. Commonwealth, 8 Ky. Law 257, 1 S. W. Rep. 435, said: “It is urged that this. case is unlike that one, in this, to-wit, that there the accused had testified negatively to a matter, as that he did not see the gaming charged in the indictment, while here he testified affirmatively to an alleged transaction. We, however, perceive no ground for a distinction in the two cases; and whether the accused has sworn affirmatively or negatively to a matter, the indictment must by special averment negative such matter, and not simply allege its falsity in general terms.” See, also, 30 Cyc. 1437; 16 Ency. Pl. & Pr. 338; 2 Bishop’s New Cr. Proc. § 918; 2 Wharton’s Cr. Law, § 1300; Hughes’ Cr. Law & Proc. § 1640; McLain on Crim. Law, § 880; Archbold’s Cr. Pr. & Pl. 1733; Gabrielsky v. State, 13 Tex. App. 428; Burns v. People, 59 Barb. (N. Y.) 531; Gibson v. State, 44 Ala. 17; State v. Lea, 3 Ala. 602; Thomas v. State, 54 Ark. 584, 16 S. W. Rep. 568; State v. Ela, 91 Me. 309, 39 Atl. Rep. 1001; Stefani v. State, 124 Ind. 3, 24 N. E. Rep. 254.
In State v. Nelson, 74 Minn. 409, 77 N. W. Rep. 223, where in a prosecution for perjury, the indictment set out in extenso the testimony of the defendant, consisting of a number of distinct and separate statements of fact, followed by a general allegation that all of this testimony was false, but contained “no assignment of perjury,” that is, no special averments negativing any of the facts alleged to have been falsely deposed, or specifying wherein they were false, the court held that the indictment did not inform the accused of “the nature and cause of the accusation” against him, within the meaning of Article x, § 6 of the Constitution of the State. On page 412 of the opinion, it is said: “Nothing is better settled than that at common law it was absolutely necessary, in an indictment for perjury, to make direct and specific allegations negativing the truth of the alleged false testimony, by setting forth, the true facts by way of antithesis, and that a mere general allegation that the testimony was false was not sufficient. This requirement was not technical or a mere matter of form, but of the very essence of the indictment, and necessary in order to inform the accused of the nature and cause of the accusation against him, by setting out wherein or in what respect his testimony was claimed to be false. This, as a general rule at least, is the only way by which he could be fully informed of the nature and cause of the accusation against him. This will be apparent to any lawyer on a moment’s reflection, without our resorting to illustrations. It will, -of course, be more apparent when the alleged false testimony consists of a complex statement of facts than when it consists of a simple statement of a single fact.”
“The convenience also of mankind demands, and in furtherance of that convenience, it is a part of the duty of those who administer justice, to require that the charge should be specific, in order to give notice to the party, of what he is to come prepared to defend, and to prevent his being distracted amidst the confusion of a multifarious and complicated transaction, parts of which only are meant to be impeached for falsehood.”
For the reasons stated the indictment is fatally defective for want of a proper assignment of the perjury. We think, instead of saying merely that Fudge was “sworn as a witness,” etc., the indictment should allege at least that he was “duly sworn,” or “in due form of law sworn,” or words of equivalent import, especially since the indictment does not attempt to set forth the words of the. oath. 2 Bish. New Cr. Proc. § 912; State v. Mace, 76 Me. 64. At this time, however, it is unnecessary to say whether the indictment is fatally defective in this respect.
We will not consider in detail the many other objectio'ris presented by the motion to quash the indictment. Suffice it to say the whole indictment is inartificially drawn arid iriay be reconstructed iri accordance with the rules of good pleadirig by reference to the
The judgment is reversed.
Mr. Justice Parkhill being absent on account of illness the foregoing opinion prepared by him is concurred in as the opinion of the court and the judgment is reversed.