Smith v. StateSmith v. State
- Reporters:
- Before:
- Deaderick
delivered the opinion of the court.
Plaintiff in error swore before the grand jury that he saw one Weakley bet on a game of hazard and address at a certain time and place. This was sworn -аt the January term, 1880, of the criminal court of Davidson county. At the May term, 1881, upon the trial in the said court of said Weakley, for said offense, he swore he did not sеe said Weakley bet upon said .game, and had never seen him bet in his life.
At a subsequent day of said May term, 1881, of •said criminal court, the plaintiff in error was indicted fоr perjury. The indictment contained two counts, onе assigning perjury in the swearing before the grand .jury, and the оther assigning perjury in the swearing upon the trial in the criminal court. Upon the trial the defendant was convicted and sentenced to three years in the penitentiary. He moved in arrest of .judgment and for a new triаl, and said motions having been overruled, he has aрpealed, in error to this court.
Counsel for defendant insists that the court below erred in refusing to allow him more than ten challenges, because he says twо offenses are charged in distinct counts, and he was entitled to ten challenges for each offеnse.
The indictment is for perjury, and on such an indictment thе defendant is entitled to but. ten challenges, no mattеr whether it contains one count only, ■or more. So there was no error in the refusal of the court tо allow the number of challenges claimed.
*388It is further insisted that the court erred in- refusing to quash the indictment, and also in refusing to compel the attorney-generаl to say on which of the two counts he would eleсt to try defendant, as the offenses were chargеd to have been committed at different times and рlaces. The evidencé is not set out and it does nоt appear upon which count the verdict was founded.
It has been held by this court that the joinder of sеveral distinct felonies of the same grade and сharacter in different counts, constitutes no ground оf demurrer or arrest of judgment, and of course cаnnot be assigned as error in this court: 4 Hum., 194; 3 Lea, 558; 3 Heis., 158.
The court may, in its disсretion, where the acts are distinct, to prevent prejudice to the prisoner, or embarrassmеnt in his just defense, compel an election. But in a сase like - this, where it might be difficult for the State to detеrmine on which occasion the false swearing wаs done, and where it was probable perjury had bеen committed, either before the grand jury, or on the trial, we think the action of the court was altogether proper.
The indictment informed the prisonеr that he had sworn falsely in one case or the other, giving him ample opportunity to make his defense.
There is no error in the record, and the judgment will be affirmed.