Peterson v. State, 74 Ala. 34

Peterson v. State

74 Ala. 34 | Ala. | 1883

STONE, J.

— The indictment in the present case charges the defendant with the commission of the felony denounced by section 4112 of the Code of 1876. It strictly pursues form 41, on page 995 of the Code, designed for this identical offense, and is sufficient.

The charge is, that the defendant, in giving his testimony on the trial of Thomas Norris and Jane Cauthen, in the Circuit Court, committed the alleged perjury. The witness had been examined before the grand jury in the same case, and it was sought to be shown that the testimony thus first given was true ; that that given on the final trial was materially different, and that the latter was willfully and corruptly false. There was no count, or charge, based on his testimony before the grand jury. Hence, to obtain a conviction, it was necessary to convince the jury, by that measure of proof required in criminal cases, that on the trial in chief, and in a matter material to the issue, the defendant had testified to that which was willfully and corruptly false. There can be no conviction of the crime of perjury, on the unaided testimony of a single witness. This would be oath against oath. There must be two witnesses, or one with strong corroboration. — 1 Greenl. Ev. § 257; Clark’s Manual, § 1248. This corroboration, to be sufficient, must be of the very act — the corpus delicti — the giving of material testimony which is willfully and corruptly false. And when, as in this case, it is alleged the accused has made two sworn statements which are in irreconcilable conflict, if there is no strong corroboration of one of the versions, how *37can it be affirmed the other is false ? Previous contradictory statements, made with or without oath, may be very important evidence, in connection with other circumstances, against the accused; but, no matter by how many witnesses the different and conflicting statements may be proved, this is not corroborative proof of the corpus delicti. The offense charged is the willfully false denial of knowledge of certain criminating facts, against Norris and Cauthen. Corroboration should be of such a nature as would tend to prove the existence of such criminating facts, and the defendant’s knowledge of their existence. This would tend to prove the alleged first testimony was true, and the latter false. This would be corroboration of the truth of the testimony of one witness — his alleged testimony before the grand jui-y; and if sufficiently strong and convincing, would authorize the jury to find the falsity of the second testimony, and to convict the defendant. — -1 Green 1. Ev. § 259. Let it be remembered, we are dealing with an indictment, which charges perjury only in the testimony last'given. The Circuit Court did not err in admitting testimony of what the defendant testified before the grand jury.

The charges asked were correctly refused. The first, while probably intending to embody the principle stated above, is so involved, as that it is difficult to understand it. Charges should be clear and explicit, ,easy of interpretation, and not liable to mislead.- — Hughes v. Anderson, 68 Ala. 280; Bay Shore R. R. Co. v. Harris, 67 Ala. 6.

The last clause of charge 2 is not correct. There is no rule of law which declares, that a sworn statement of one charged with perjury, made at another time, different from his testimony which is charged to be willfully and corruptly false, and on which his conviction is sought, may not be given in evidence against the accused, as tending to sustain the charge made against him. By itself, as we have said, it is not sufficient; for it is only oath against oath, and, at most, would leave the mind in doubt which was the true, and which the false version. It is testimony, however — the testimony, either of one witness, or of corroboration — and it can not- be affirmed, as matter of law, that it “ is not sufficient for one of the witnesses.” Its sufficiency is a question for the jury, under proper instructions.

The oath of the jury in this case is precisely in the form which was held insufficient in Storey's case, 71 Ala. 329 ; and for that error, the judgment must be reversed. We have many times ruled, that it is sufficient if the judgment-entry affirms the jury was “duly sworn,” or “sworn according to law.” This is a very simple rule, and can be easily conformed to. Still, we find it often disregarded. It would seem some *38remedy ought to be devised for this, either by the legislature', or by a closer scrutiny of clerical work.

Reversed and remanded. Let the accused remain in custody, until duly discharged.