119 Ark. 408 | Ark. | 1915
This is an appeal from :a judgment convicting the defendant, Grordy Harris, of the crime of perjury. The substance of the charge set forth in the indictment is that in a certain criminal case on trial in the circuit court of Union County, wherein one Hez McLemore was being tried upon the charge of grand larceny in stealing a cow, the property of C. H. Murphy, the defendant herein was sworn as a witness, and testified that he had sold one 'Cage McLemore'ten or eleven head of cattle ¡and no more, Whereas in truth, and in fact he had sold to Cage McLemore 20 or 21 head of cattle. It is alleged in the indictment that the said testimony was false, and that it was material to the issue presented in that trial.
There are numerous assignments of error, but we content ourselves with the discussion of the sole question whether or not the alleged false testimony was material to the issue in the trial in which it was given, for we have reached the conclusion that a decision of that question determines.the case.
The testimony shows the following state of the record in the case of State v. Hez McLemore, in which defendant’s alleged false testimony was given: Hez McLemore was accused of .stealing a certain cow, described as a cow with a crumpled horn and branded with the letter “M” on the left hip, which said cow was alleged to have been the property of C. H. Murphy. Murphy and Cage McLe-more, the brother of Hez, had been engaged in the cattle business and had purchased several hundred head of cattle with money furnished by Murphy. The agreement between-them was that Murphy should furnish the money, and Cage McLemore should buy the cattle .and put them in the range, and that when sold, there should be a certain division of the profits. The proof shows that there were as many as 245 head of cattle in the range at one time, but when, they were finally gotten up there were 83 of them missing. There was subsequently .another contract entered into between those parties whereby the legal title of 'Cage McLemore passed to Murphy, and he became the sole owner of the cattle. The cow with the crumpled horn was, according to the proof adduced by the State in that case, one of the number purchased by Cage McLemore for Murphy, and was one of the 83 missing cattle. There was an improvised slaughter pen concealed in a thicket near Hez McLemore’s house, and the crumpled horns of this cow were found .at that place. The theory of the State was that all of the missing cattle were stolen from the range by Hez McLemore and were butchered at the concealed slaughter pen in the thicket near his house. The defendant, G-ordy Harris, was also indicted for participation in the offense. Defendant is a brother-in-law of the two McLemores, and in the trial of Hez he was introduced as a witness in the latter’s behalf. He testified that he bought from one Sandy Simmons a cow with a crumpled horn and butchered it himself at the concealed slaughter pen in question, and that the horns found by the State’s witnesses at the pen are those that were taken from the Sandy Simmons cow. Hez McLemore was convicted in that trial, but on appeal to this court the judgment of conviction was reversed on account of two errors of the court, one was the giving of an instruction, telling the jury in substance that they could convict the defendant in that case if they found that he had stolen any cow, the property of Murphy, within three years before the finding of the indictment. McLemore v. State, 111 Ark. 457.
The defendant Harris testified in the trial, in addition to that part of his testimony .already referred to, that he and Hez McLemore had been buying cattle together and butchering the same and peddling the meat at Felsen-thal, Arkansas. He testified that there had been bought 44 head of cattle, some of which belonged to him individually, and the remainder to him and Hez in partnership and that out of that number they had butchered 15 or 18. His statement was that he had butchered 10 or 12 of his individual cattle, and that 5 or 6 of the partnership cattle had 'also ¡been, ¡butchered.
The testimony which is now alleged to have been false was brought out on cross-examination. He was asked the question whether or not he had sold cattle to 'Cage McLe-more for Murphy, and he replied that he had sold 10 or 11. There was an effort during his cross-examination to show ¡by 'the checks which had been given to him by Cage McLemore, that he had ¡been paid for 21 head of cattle. The testimony in the present case shows conclusively that the various checks were given to the defendant by Cage McLemore for sums aggregating the price of 21 head of cattle, hut the defendant satisfactorily showed ¡by the testimony of himself and other witnesses that two of the checks did not represent sales of cattle to McLemore, but did represent money which McLemore had borrowed from him to pay for two head of cattle ¡bought from certain other parties, one Sinclair and one Taylor. He showed that Cage McLemore bought a cow from 'Sinclair and did not have the money to pay for it at the time, and that he (defendant) furnished the money, .and later Cage McLe-more gave Mm one of the checks in question to return the sum of money so advanced, twelve or thirteen dollars. One of the other checks was represented by the price of a cow which defendant bought from Taylor for McLemore and paid for it, and McLemore gave him a check to reimburse him for the amount so paid. So it may be said that the undisputed testimony in this case established the fact that the defendant sold to Cage McLemore 19 head of cattle, and that he testified in the former trial that he only sold 10 or 11 head of cattle to McLemore. He undertakes now to explain ¡by showing that the additional 8 head of cattle were partnership property, and that when he spoke of the sale of the 10 or 11 head of cattle sold to McLemore he meant his individual cattle, .and did not take into account the 8 head of partnership cattle. The whole of his testimony in the former trial was reproduced before the jury in the trial of this case, and, notwithstanding the attempted explanation, his testimony was open to the construction that he had withheld the fact of the sale of the additional number o.f cattle, and had falsely testified that he only sold 10 or 11 head to McLemore.
The case has been fully developed by the State, so far as concerns all matters affecting the materiality of the alleged false testimony, and no useful purpose would be served by remanding the ease for a new trial. The judgment is therefore reversed and the cause dismissd.