44 Ala. 81 | Ala. | 1870
The constitution of this State forbids that any person shall “ be deprived of his life, liberty or property, but by due course of law.’’ — Con. Ala. 1867, art. I, § 7. Due course of law, in this sense, means that every person who is charged with an offense, shall be charged and tried as required by the laws of the land, and not otherwise. And for this purpose, in a criminal prosecution, the record must show that the accused is charged with an indictable offense according to the forms of law, and that- his trial has been conducted as the practice, required by the law, prescribes. If these requisites, on the face of the record, appear to be wanting, it is the duty of the court to refuse to give judgment, on motion pointing out the deficiencies. This is called a motion in arrest of judgment. And the effect of such a motion, if granted, is to set aside all the proceedings in the case, and allow a judgment of acquittal to be entered. This motion can not be made before the verdict, nor can it be made after the sentence. It, therefore, comes properly between the verdict and the judgment of condemnation ; and it must be decided before the sentence is pronounced. It can not, therefore, be continued until after sentence. — 1 Chitty’s Crim. Law, 661; 1 Bish. Crim. Proc. p. 850, § 850, et seg. The constitution and the statute law recognize the right of the accused to have the judgment
This might be sufficient to dispose of this case and send it back to the circuit court for a new trial. But there is another question which arises on the record, that will be important on a new trial; that is, the sufficiency of the charge alleged in the indictment, and the materiality of certain testimony offered by the accused in the court below, in explanation of his act in taking the oath.
Perjury is a corrupt, willful, false oath, taken in a judicial proceeding, in regard to a matter or thing material to a point involved in the proceeding. This oath must be taken before some officer or court having authority to administer it. This is a statutory proceeding, and the affidavit required is a statutory oath. This is the oath that the clerk is authorized to administer. His powers are not general, but special, and he can no.t exercise a broader jurisdiction than is conferred upon him by the statute. — Revised Code, §§ 680, 645, 771; Pamph. Acts 1868, page 252. The clerk has no power to construct a new oath, different from that prescribed by the statute. He must confine his action to the authority thus given.
The act prescribes that certain facts shall exist, and that affidavit of “ either ” of these facts being made, and bond given, or affidavit of the plaintiff’s inability to give such bond being also made, the attachment shall at once issue. The affidavit made by the accused, for the falsehood of which he is indicted, is quite different from the one required and authorized by law. It is an affidavit that the affiant “ had reason to believe ” that certain crops would be removed from certain premises, without full payment of certain wages, without affiant’s consent. This was no grounds
Evidence of the advice of the attorney of Hood, at the time the affidavit was drawn and sworn to, was competent to show the absence of corrupt motive. It was competent to show that the accused might have been thus led into a mistake. Then the oath, though untruthful, could not have been perjury.— The State v. Lea, 3 Ala. 602; 2 Hawkins’ Cr. Pl. b. I, ch. 69, § 2, p. 8, (7th London ed.) The court erred in rejecting it, as shown in the bill of exceptions. I may also add, that it admits of grave doubt whether the indictment in this case is sufficient. — Bev. Code, § 1139.
The judgment of the circuit court is therefore reversed, and the cause is remanded for further proceedings in the court below, in conformity with this opinion. The accused, Jerry Hood, will be held in custody until discharged by due course of law.