Hemphill v. State

| Miss. | Mar 15, 1894

Cooper, J.,

delivered the opinion of the court.

It may be that the appellant has been’ indicted for one perjury and convicted of another, and that, in testifying before the grand jury, where the perjury is charged to have been committed, he told nothing but the truth. The facts upon which the conviction rests are these: The grand jury was engaged in discovering whether one John Weeks had violated the law against retailing intoxicating liquor, and the appellant, being by it examined as a witness, testified that he had purchased a bottle of whisky from Weeks, who was thereupon indicted. On the trial of Weeks the appellant was examined as a witness for the state, and then testified that he had not bought whisky from Weeks, who was then acquitted. The appellant was then indicted for perjury, in having testified falsely before the grand jury, and upon his trial evidence of his contradictory oaths was given, aiid then Weeks was introduced as a witness, and testified that he had not sold whisky to appellant, and therefore that his oath before the grand' jury was false. The verdict of guilty was therefore fully sustained by the evidence, for the conflicting oaths of the appellant, re-inforced by the oath of Weeks that the evidence before the grand jury was false, sustained the conviction. 1 Greenleaf ón Ev., §§ 257-259: 2 Bish. Crim. Pro., §§ 930-932.

The court properly excluded the record of the conviction of Weeks for retailing, and the offered evidence of Green that he had bought whisky from Weeks. It is not pretended that the conviction was for a sale to the appellant, and manifestly the sale to Green related to a wholly different matter, so that the proffered evidence did not legally tend to prove that appellant had ever bought whisky from Weeks.

The instruction for the state is not subject to criticism in the light it is viewed by appellant’s counsel, and, taken in connection with the second instruction for the defendant, it is certain that no injury resulted to him by reason of any misconception by the jury of the quantity of evidence required for his conviction.

The state’s instruction is defective in omitting from its definition of perjury the materiality of the matter as to which the false oath is given, but there is no objection made to it on this ground, and it is evident that the oath before the grand j ury was in relation to a relevant and material fact, and that if it was false and corruptly made, the appellant was guilty of pei’jury.

The judgment is affirmed.