Moore v. State

44 So. 817 | Miss. | 1907

Mayes, J.,

delivered the opinion of the court.

The indictment in this case is upon the charge of perjury. On the trial appellant was convicted under this indictment and given a sentence of ten years in the penitentiary. After he was convicted and before sentence there was a motion in arrest of judgment. There are several reasons assigned in the motion, but the main one is because the indictment does not charge that the testimony of Moore, in reference to which it is alleged that the testimony was material, was false. The indictment charges that the material matter was whether Moore met Robert Ivy in Moore’s field on Monday night of a certain day in .August, 1901. If Moore swore falsely about this matter, and- swore that he did not meet Ivy on the date named, it was necessary to allege in the indictment that he so stated, and it was further necessary to allege in the indictment that this statement by him was false, and that in truth and in fact he did meet Ivy. Before Moore could ever have been convicted of perjury is was necessary to prove all these facts as constituting the crime, and, if it was necessary to prove these facts in order to constitute the crime, it was necessary to charge them in the indictment. When the indictment failed to do this, it failed to so substantially charge the crime as that a conviction under this indictment could, lawfully stand. This is not a formal defect, but it is a defect of substance.

In the case of Cook v. State, 72 Miss., 517; 17 South., 228, it is held, under § 1354 of the Annotated Code of 1892 (§ 1426 of the Code of 1906), providing how objections to an indictment shall be taken, that “ the statute was not intended to rob, and could not have been intended to rob, any citizen accused of a felony of his right to have the nature and cause of the accusation preferred against him clearly and fully stated, and any abridgment of the right to be thus informed in any substantial particular would be unconstitutional.” And in the case, supra, it was held on an indictment for murder that the omission of the word “ did ” in the indictment was not a formal defect, advantage of which must be taken by demurrer, but .that it was a substantial defect, and that its omission made the indictment fatally defective, where the indictment merely alleged that the defendant “ feloniously, willfully, and with malice aforethought kill and murder one John Bryan,” without inserting the word “ did ” in the indictment. .In the case of Commonwealth v. Porter, 32 S. W., 138; 17 Ky. Law. Rep., 554, a ease very similar to the one before the court, it was held on an indictment for perjury that the indictment alleged that the false swearing consisted in the appellee, while testifying as a witness before the grand jury, saying that he did not see Barker at the colored church the night one Millen was shot and said breach of the peace occurred, either during the shooting by said Millen, or prior thereto, or thereafter on that night, and the court in this case said: “ While it is true that the indictment charges that the answer given was false, and known to appellee to be so when given, yet it fails to charge in terms that he did see Barker at the time it is alleged the accused testified he did not see him. It should have been alleged that the accused did see Barker at the colored church the night Millen was shot and the breach of the peace occurred ”— and for failure to do this the court held that the indictment was fatally defective.

In the case now before the court it is charged that the false testimony consisted in the witness swearing that he did not meet Ivy, yet nowhere in the indictment is it alleged that Moore did meet Ivy. In order to constitute the offense of perjury, it being necessary to prove this, it was necessary to allege it. All that this indictment alleges is that it was material to prove that Moore met Ivy in his (Moore’s) field in August, 1901, and the indictment then alleges that Moore, being sworn, unlawfully, willfully, feloniously, falsely, knowingly, and corruptly swore that he did not leave his house that night. If, upon this indictment, it had been proven that Moore swore that he did not meet Ivy, and it had further been proven that he stated that he did not leave his house, these facts would not have-been sufficient to sustain the conviction of perjury, because it was necessary to go one step further, and prove, not only that Moore swore that he did not meet Ivy, but that in truth and in fact he did meet Ivy. As was stated above, it being necessary to prove this, it was necessary that it be charged in the indictment, in order that defendant might be informed of the nature of the charge against him in clear and unmistakable language. This is not mere matter of form. It is sine qua non to the conviction.

Reversed and remanded.