83 Ga. 521 | Ga. | 1889
McCord was found guilty of perjury, and moved for a new trial, which was refused. The imputed perjury was committed by him (if at all) when testifying as a. witness in behalf of Eddleman on Eddleman’s trial for-the murder of Gresham. The alleged false matter testified to was, substantially, that he (McCord) was in ascertain alley, and saw a large man (Gresham) striking-with a knife at Eddleman, Eddleman backing and. Gresham advancing; and that the former shot the latter-when they were only a few feet apart. The homicide' took place in May, and Eddleman was tried in October following. On the trial of McCord, the State, after proving that he had testified as alleged, and after adducing evidence tending to show that his testimony was false, proved by one Owens that he overheard a conversation in July or August between McCord and
1. The plain tendency of this, evidence was to show, either that measures were in progress at that time to bribe McCord as a witness in behalf of Eddleman, or that some agreement in the nature of bribery had already taken place. To meet this evidence, McCord offered the testimony of Langley, to the effect that in .about an hour after the homicide, he (McCord) communicated to Langley the fact that he was in the alley, s.aw the rencounter, and detailed the circumstances to Langley substantially in accordance with his testimony as delivered upon the trial of Eddleman. This testimony the court rejected. It appears from other evidence in the case that as soon' as the homicide was committed, Eddleman was taken into custody and carried to prison. There is no suggestion that any intercourse whatever took place between him and McCord prior to the conversation of the latter with Langley. Nor does it appear that there was any special relation between Eddleman and McCord calculated to induce the latter to volunteer as a false witness in his behalf. The earliest intercourse indicated anywhere in the record as taking place between McCord and Hildebrand, who it seems acted as agent for Eddleman in preparing or procuring evidence for use on his trial, was one week or about one week after the homicide. This time is fixed by McCord’s statement made to the jury on his trial. The evidence on the subject which came from Langley tends to make the period longer, to wit, two or three
The solution of this question will be materially aided by inquiring whether the proposed evidence would have been admissible in behalf of Eddleman on. his trial had the like attack for bribery been then made by the State upon his witness McCord, the person now accused of perjury. Formerly, in England, previous consonant statements by a witness were considered admissible in evidence to support the testimony given by him at the trial, the same as previous inconsistent statements to impeach him. Gilbert’s Ev. 150; McNally’s Ev. 378; Lutterell v. Reynal, 1 Mod. 282. This broad rule, however, was found to be radically unsound, and from the time of the case in 3 Douglas, 242 (The King v. Parker), has generally been considered as exploded. A remnant of the rule still holds its footing in the law, which remnant may be expressed as we find it in 1 Thomp. Tr. §574: “"Where the witness is charged with testifying under the influence of some motive prompting him to make a false statement, it may be shown that he made similar statements at a time when the imputed motive did not exist.” “So in contradiction of evidence tending to show that-the witness’s account of the transaction was a fabrication of a recent date, it may - be shown that he gave a
Hoes it follow because this evidence would have been admissible on Eddleman’s trial in answer to a charge of bribery, that it was admissible on McCord’s trial in answer to the like charge ? We think it does. If Eddleman would have been entitled to remove a burden from his witness by showing previous consistent statements
2. On a trial for perjury, it may be a material fact in favor of or against the accused as to when and how he first became known as a witness in the case; and the evidence on the subject of the materiality of such fact, in the light of all the circumstances, would be a question for the jury, and it would be improper for the court to charge that they could not consider it as weighing anything in behalf of the defendant, especially if no like injunction was imposed against weighing it in behalf of the State. We consider the charge as set out in the 8th ground of the motion for a new trial as objectionable, for if the topic was one to instruct the jury upon at all, as the evidence then stood, the jury should not have been excluded from considering it in the defendant’s favor, and at the same time left free to consider it, as well as all other facts, against him.
3. The exclusion of the evidence of Judge Dorsey (one 'of the counsel for Eddleman) to the effect that in an interview of the counsel with McCord, which took place in June preceding the trial of Eddleman, McCord’s statement made then coincided with what he testified on the trial, was not error; for the reason that the question to Dorsey expressly excluded any disclosure
4. Evidence that Eddleman had not paid in full the fees of his counsel, and that his means were limited, or that he was insolvent, was not admissible to repel the imputation of bribery which Owens’ testimony tended to cast upon McCord. Unless it could be known how much it would take to bribe McCord, whether the means of Eddleman for that purpose would be sufficient or not, could have no relevancy. Moreover, the aid of friends might have supplied the means in whole or in part.
5. It was not prejudicial to the accused for the court to single out the main element in the assignment of perjury, and stress that as" the material matter in the assignment. This was to narrow the basis for a conviction and not to widen it. It was therefore favorable to the accused, instead of being prejudicial.
6. There was no evidence of want of sanity by the accused, and consequently the charge complained of in the 12th ground of the motion on that subject seems to us misleading. If meant to intimate that knowledge by McCord of the falsity of his testimony on the trial of Eddleman would have to be negatived, if at all, by proof that he was of unsound mind, the charge would be grossly erroneous, for soundness of mind relates to capacity for knowledge, not directly to knowledge itself. One may have full capacity to know a fact, and still be
However, if McCord’s testimony on the trial of Eddleman was false, there is scarcely a glimpse in the evidence of any reason for thinking he did not know it was false, so this part of the charge was probably harmless.
7. The charge in the 11th ground of the motion touching the prisoner’s statement is correct in substance. There is no reason why the judge should not inform the jury that he is bound by law to instruct them on that subject. The duty is virtually imposed by statute, and it is well enough for the jury to know that it is a statutory right of the prisoner to have it performed. Code, §4637. Instead of its being less impressive, it ought to be more so on that account.
8. Several parts of the charge are complained of as confused and argumentative. None of them are argumentative, but some are more or less confused. We find inaccuracies of expression in those parts set out in the 3d, 4th, 9th, 10th and 12th grounds of the motion for new trial. Some of these inaccuracies may be due to erroneous copying by the clerk in making up the transcript. It is evident that the clerical work in preparing the transcript was very carelessly and imperfectly done.
Judgment reversed.