58 Ga. App. 299 | Ga. Ct. App. | 1938
Lead Opinion
The defendant was indicted for the offense of perjury, it being alleged that he wilfully and knowingly swore falsely in a suit brought by C. L. Taylor against Carrie Belle Taylor,
One of the reasons assigned in the motion why a new trial should be granted is that no competent evidence was introduced showing the existence of the judicial proceeding in the superior court of Screven County, alleged in the indictment to have been the case of C. L. Taylor against Carrie Belle Taylor, wherein, as the indictment alleged, the false testimony was given by the defendant. The original pleadings, or duly authenticated copies thereof, were not produced and introduced in evidence. However, it appears from the above statement of facts that the court stenographer was allowed to testify, without objection, as to the existence of such a proceeding. The position is taken that a duly authenticated transcript of the record of the ease is necessary to prove the judicial proceeding in the course of which the alleged perjury was committed, it being contended in this connection that the testimony of the stenographer was hearsay and without probative value. We concur in the view that where objection is made, a duly-authenticated transcript of the record is necessary to prove the existence of a judicial proceeding in a court of record. However, no objection was made by the defendant to the testimony, which, amounts to his consent to its admissibility and a waiver of any objection that might have been urged. In such case, upon a motion for new trial, the evidence must be considered without
It is further contended that the evidence fails to show that a lawful oath was administered to the defendant in the alleged judicial proceeding. The transcript of the evidence, introduced in evidence without objection, shows that Mr. Brant was counsel for plaintiff in the judicial proceeding wherein the indictment alleged the offense of perjury was committed. The stenographer testified: ' ‘As to who administered the oath, he was Mr. Brant’s witness, and Mr. Brant administered the oath. That is the usual form of administering oaths, and has been ever since I have known anything about it.” In Cain v. State, 10 Ga. App. 473 (3) (73 S. E. 623), it was said: “When, in the course of a judicial investigation, an attorney at law, by the authority or permission of the court, administers the oath to a witness, he does so in behalf of the court. Consequently it may properly be alleged in an indictment assign
Judgment affirmed.
Rehearing
ON MOTION FOR REHEARING.
It is strenuously insisted by counsel for the plaintiff in error that our opinion is contrary to the ruling in the Heflin case, by which we are bound. The transcript of record in that case shows that complaint was made in the motion for new trial that "the court erred in admitting in evidence over the objection of the defendant, the oral testimony of H. L. Parry (who was the official court stenographer), and of A. F. Cooledge, that the case of the State vs. George H. Eddleman, in which Heflin testified, was a trial of Eddleman for the killing of Thos. E. Gresham and occurred in Fulton superior court, his honor Kichard H. Clark presiding, — the records being the best evidence of the fact and the nature and manner of trial.” Exceptions were also taken upon the verdict, “because the testimony of the defendant upon which perjury was assigned is not shown to have been given in any judicial proceeding.” It will be noted that in the Heflin case the defendant raised, to the oral testimony of the court stenographer, the express objection that the records were the best evidence of the fact and manner of trial. We pointed out in our original opinion that where such objection is made it should be sustained. It follows that oral evidence introduced over such timely and valid objection was valueless as evidence upon which to base a legal verdict. Its defects being pointed out, and objection being made thereto,on account of such defects, the objection should have been
The State introduced, without objection, evidence that the defendant gave testimony under oath, and that the usual form of oath was administered. In the cases cited by the plaintiff in error, on motion for rehearing, it appears from the reports of the decisions, or from the records of file in this court, what oath was administered to the defendant, and that such oath was not the lawful oath required. Where nothing appears to the contrary, this court will assume that a lawful oath was administered. The witness being sworn under the usual form of administering oaths, it
Rehearing denied.
Dissenting Opinion
dissenting. Nothing said by the majority of this court in their opinion on rehearing in any way changes my view that the judgment should be reversed. The opinion of the majority clearly represents a plain disregard of the rulings in the Heflin case, which arises from the fact that the majority think, as clearly evidenced by their opinion, that the ruling of the court there made was erroneous. That the Heflin case presents a misconception of the true law, is, as I understand the limitations placed upon the power of this court by the constitution, clearly beside the point. We are bound by a decision of the Supremo Court, whether right or wrong in our personal conceptions of the true law. To distinguish a decision of the Supreme Court, the difference should be plain and valid. Otherwise lawyers will never know what to advise their clients as the true law, nor judges how to try the cases before them.
It is true, as stated in the majority opinion on motion for rehearing, that the record in the Heflin case, of file in the clerk’s office of the Supreme Court, discloses that the defendant objected to the evidence of the court stenographer which Judge Bleckley quoted in his opinion. However, it is clear from the opinion that Judge Bleckley held that this evidence was not objectionable, and that, taking the same as having been properly admitted, it was not sufficient to establish the existence of the judicial proceeding set out in the indictment. Judge Bleckley said: “The stenographer’s evidence was all appropriate to open the way to the introduction of the evidence given by Heflin on the trial of Eddleman, and for that purpose it was all admissible; but in order to show the actual existence of the case of the State v. Eddleman as a judicial proceeding in the superior court of Eulton County, and its identity with the case described in the bill of indictment, it was necessary to go further and prove by the record an indictment against Eddleman (for he could not have been legally tried without an indictment), and that there was an'issue raised upon that indictment, and what that issue was.” Admitting in the present case, for the sake of argument, that the testimony of the stenographer concerning the trial of the case of Taylor v. Taylor, was admissible, yet,
