122 Ky. 296 | Ky. Ct. App. | 1906
OPINION by
— Affirming’.
J. H. Henderson, was indicted by the grand jury of Jefferson county, under section 1177 of the Kentucky Statutes of 1903, charged with the offense of subornation. of perjury. To this he pleaded not guilty, but a trial resulted in his being found guilty as charged in the indictment, and his punishment fixed at confinement in the penitentiary for a term of two years. Prom the judgment predicated upon this verdict, he is here on appeal.
The facts constituting the offense with, which he stood charged in the court below are, substantially, that he suborned Mary Parmer to make oath before the deputy bond recorder of Louisville that she was Patsey Finley and owned ¿ residence at 1315 West Magazine street worth $1,500 over and above her .debts and liabilities., whereas, in truth and in fact, she was not Patsey Finley, and owned no property whatever at 1315 West Magazine street.
Appellant complains of a variance between the evidence and the allegations of the indictment in this: That he was charged with suborning Mary Parmer to commit the crime of false swearing, whereas the evidence shows that, the woman who swore falsely
Appellant also complains that the court allowed the Commonwealth, after he had testified in his own behalf, to ask him, on cross-examination, whether or not he had been theretofore confined in the penitentiary under conviction of the charge of forgery and which he was compelled to answer that he had. Section 597 of the Civil Code of Practice provides that a witness may be impeached by showing that he had
Conceding for the purposes of this case that Carrie Parmer- was appellant’s accomplice, the court’s instruction to the jury as to the value to be given the testimony of an accomplice is substantially in the; language of section 241 of the Criminal Code of Practice, and this was all to which, appellant was entitled. Craft v. Commonwealth, 80 Ky. 349, 4 Ky. Law Rep., 182.
"While it is undoubtedly true, as urged by appellant, that the offense which .Carrie Parmer committed was false swearing, and not perjury, still that cannot avail him here. He is. charged with subornation of perjury under section-1177 óf the Kentucky Statutes of 1903, which is as follows: “If any person shall unlawfully and corruptly cause or procure another, by any means whatever, to- commit .the offense described in the four preceding sections, he shall be guilty of subornation of perjury, and confined in the penitentiary for not less than one nor more than five years.” Section 1174, which creates the offense of false swearing, is one of the four sections embraced within the terms of section 1177. This, section creates an offense entirely distinct and separate from either perjury or false swearing, and it was within the province of the Legislature to name this offense, and they did name it ‘ ‘ subornation of per jury. ” The grand jury used the name prescribed by the statute, and the particular facts constituting the .offense show that it relates to the offense described in section 1174, which creates the offense of false swearing.
But appellant overlooks another part of the same section of the statute, which is as .follows: “Said recorder, or one of his deputies, shall he in his office at all hours, for the purpose of taking bonds. All bonds and affidavits shall be returned within twenty-four hours to the proper tribunal.” This language clearly shows that it was intended that the deputy should he in the office and take bonds when his principal was not present, and to do this it is necessary that he should be empowered to administer oaths to those applying to be sureties on the bonds to be taken.
On the merits of the ease we think appellant’s guilt, was established by the evidence beyond reasonable controversy, and, perceiving no substantial error to his rights occurring in the procedure of the trial, the judgment is affirmed. '.
Petition by appellant for rehearing overruled.