18 Fla. 898 | Fla. | 1882
delivered the opinion of the court.
This was an indictment which charged the defendant, Pleasant Robinson, with perjury, on the trial in the Circuit Court held in the county of Madison of one John Robinson, charged with aiding a prisoner in custody in attempting to escape from a person having the lawful custody of such prisoner. The jury found the defendant guilty. The counsel for the defendant then moved in arrest of judgment, which motion was denied. The case is in this court on a writ of error, and the errors assigned are as follows:
1. The indictment does not charge the offence or crime of perjury, in that the defendant was not sufficiently put on his guard.
2. The indictment does not allege material matter, or show said matter to be material.
The court sentenced the prisoner, Pleasant Robinson, to be confined at hard labor for the term of five years in the State Penitentiary.
The statute under which this indictment was found reads as follows: “Whoever, being authorized or required by law to take an oath or affirmation, wilfully swears or affirms falsely in regard to any material matter or thing respecting which such oath or affirmation is authorized or required, shall be deemed guilty of perjury, and shall be imprisoned,” &c. This court have held in Miller vs. The State, 15 Fla., 577, that the oath taken by the defendant must not only be false, but that it must be wilfully false, and to matter material to the issue, and that it is necessary to so charge the offence in the- indictment. As to the degree of materiality it is enough if it was circumstantially material, though not in * itself sufficient to establish the issue. (12 Metcalf, 225.) It is not necessary that the false statements should tend directly to prove the issue in order to sustain the indictment. If circumstantially material, or if it tends to support and give credit to a witness in support of the main fact, it is perjury. (Wood vs. The State, 59 N. Y., 117; Comm. vs. Grant, 116 Mass., 17; State vs. Keenan, 8 Richardson’s Rep., (S. C.) 456.) False testimony is deemed material, not only when directly pertinent to the. issue tried, but also if it tend to augment or diminish damages, or to impart greater credit to substantial parts of the evidence. The degree of materiality is of no importance. 2 Texas Court of Appeals, Lawrence vs. The State, 479.
The counsel in his argument insists that the indictment failed to allege that the evidence so given on the trial of John Robinson by this plaintiff in error was, as to matter material to the issue, and that therefore the judgment should have been arrésted.
This indictment charges that on the trial of John Robinson for aiding a prisoner in lawful custody to escape from the officer having him in charge, it became a material question whether the said John Robinson used certain language to such prisoner, or whether in effect he advised 9uch prisoner to go peaceably with the officer to his trial. The Plaintiff'in Error is charged with having sworn to a certain fact tending to show that John Robinson did advise George Smith to go peaceably with the officer to his trial, when in truth and in fact John Robinson did not use the language so attributed to him, and did not advise the prisoner to go peaceably to his trial.
None of the evidence before the court on the trial is before us, but he is charged in the indictment with testifying that he was present at “ a row ” between James Ganey (the
After the sentence was’ pi’onounced, and after the cause was brought into this court, the counsel assign’as error the fact that the court sentenced the prisoner to hard labor,' “ as there are no such terms in the statute prescribing the punishment for perjury.”
The statute (McClellan’s Digest, 451,) in regard to the form of sentence, when to be imprisoned in penitentiary, is as follows : “ In every case in which the punishment of imprisonment in the State Prison is awarded against any convict the form of sentence shall be that he be imprisoned by confinement at hard labor.” * * * The sentence was in the form prescribed by the statute.
Judgment affirmed.