State v. BurnsState v. Burns
The opinion of the Court was delivered by
*524 The defendant was indicted for and convicted of perjury, alleged to have been committed by falsely swearing at a prеliminary hearing before a magistrate.
The defendant, .being duly sworn, tеstified at the preliminary hearing in the case of State v. Richard Jones that he saw Richard Jones hit Sam Moultrie in the head with a black jack and kick him intо Pocataligo River. On the trial of Richard Jones in the Court of General Sessions, the defendant testified that his previous testimony bеfore the magistrate upon the preliminary hearing was false, and that Richard Jones did not hit Sam Moultrie in the head with a black jack and did not kick him into the Pocataligo River.
The trial Judge ovеrruled defendant’s motion for a directed verdict made upon the ground that there was no evidence tending to establish the fаlsity of the defendant’s statement at the preliminary hearing (cоnstituting the subject-matter of the alleged perjury), except thе contradictory statement of defendant upon the trial in Gеneral Sessions. The sole question raised upon the trial is whethеr the defendant’s subsequent contradictory testimony, accоmpanied by a definite admission that his testimony as previously given wаs false and untrue, was sufficient to support a conviction оf perjury.
It is well settled that a conviction for perjury cannot be sustained merely on the contradictory sworn statements of the defendant. The State must prove which of the two statements is false, and must show the statement, which is made the basis of the pеrjury charge, to be false by other evidence than the contradictory statement. 21 R. C. L. 271;
People v. McClintic,
“It is the falsehood only of the oath (on which the perjury is assigned) which requires more proof.”
It is forcibly argued on behalf of the State that, the general rule should not apply in the case at bar.for the reason that in defendаnt’s second statement the intentional falsity of the first was exprеssly acknowledged or confessed. That contention is supported by the case of
People v. Burden
(1850) 9 Barb. (N. Y.) 467. In note to
People v. McClintic,
“The distinction he, seeks to establish is not recognized by any adjudicated case, or by any writer on criminal law. * * * Is it possible the principle is so reversed and is of so little valuе that the prisoner may be convicted of perjury upon thе first merely because upon a second examination he admitted the first did not contain the truth? If this be so, the rule laid down that in cаse of two conflicting statements there can be no conviction unless there is corroborative evidence, is not оf the slightest value.”
After careful consideration, we are unable to reach the conclusion that the view for which the State contends is sufficiently well grounded in reason to justify its adoption by this Court.
We are of the opinion that the defendant’s motion for a directed verdict should have been granted. The fact that the jury in the case of State v. Jones acquitted the accused in that case does not furnish the extrinsic and independent evidence rеquired to prove the falsity of appellant’s first statement before the Magistrate.
For the reasons stated, the judgment of the Circuit *526 Court is reversed, and the cause remanded for the entry of a judgment of acquittal in accordance with rule 27.