48 Kan. 752 | Kan. | 1892
The opinion of the court was delivered by
John Geer was charged with subornation of perjury, under § 150 of the act relating to crimes and punishments. He was convicted and sentenced to confinement at hard labor in the penitentiary of the state for the term of two years. He appeals to this court. Said § 150 reads:
“ Every person who shall procure any other person, by any means whatsoever, to commit any willful or corrupt perjury in any cause, matter or proceeding, in or concerning which such other person shall be legally sworn or affirmed, shall be adjudged guilty of subornation of perjury.”
It is contended that the trial court erred in overruling the motion to quash the amended information. In support of this contention, it is argued that the amended information should have shown that the perjury alleged to have been committed by Margaret F. Mickens was committed by her by reason and in consequence of the persuasion or procurement of Geer. This case was before this court at a prior term. The information was then held defective because it did not aver that the affidavit referred to was to be used in a matter or proceeding before some court, tribunal, or public officer; and that the affidavit or evidence was material. (The State v. Geer, 46 Kas. 529.) Subsequently an amended information was filed, and this information contained the allegations which were omitted in the former one. The amended information also alleged that Geer unlawfully, willfully, corruptly and
It is next contended that the plea in abatement, which was interposed by Geer, should have been sustained, upon the ground that he had had no preliminary examination, nor had he waived his right thereto, prior to the filing of the amended information. It appears from the record there had been a preliminary examination. This, we think, was prior to the filing of the first information. We suppose it is intended to be claimed that, because the first information was defective, a second preliminary examination should have been had after the filing of the first and before the filing of the amended information. This court has already held that an informanation need not show that there has been a preliminary examination, or a waiver of such an examination. (The State v. Barnett, 3 Kas. 250; The State v. Finley, 6 id. 366.) Where a defendant has waived a preliminary examination, or where an attempt has been made to give him a preliminary examination, and reasonable notice has been furnished him thereby with regard to the nature and character of the offense charged, such examination is sufficient. (The State v. Bailey, 32 Kas. 83; The State v. Spaulding, 24 id. 1.)
It is further contended that the trial court erred in admitting the testimony of Margaret F. Oeer, net Margaret F. Mickens, the wife of John Geer. She was called, sworn and interrogated as a witness for the state. Her husband, John Geer, objected to her testifying, upon the ground that she was his wife. Mrs. Geer did not refuse or make any objection to testifying. While a court cannot require the wife to testify against her husband, it may permit her to do so voluntarily. We think in this case Mrs. Geer testified voluntarily. (Crim. Code, § 215; The State v. McCord, 8 Kas. 232.)
It is also contended, and this is the most serious matter in the case, that Geer cannot be convicted because Margaret F. Geer testified that she made the affidavit referred to in the in
The argument that Geer is not guilty because Margaret is a person of weak mind or easily influenced by threats is more specious than sound. The affidavit or testimony which she gave against her father was false. It was given by her knowing it to be false. If the evidence of the prosecution is to be believed, John Geer knew or believed that the testimony of Margaret against her father was false, and he also knew or believed that under his orders or direction Margaret would testify to that which he and she knew to be false. (United States v. Denee, 3 Wood, 39; Watson v. The State, 5 Tex. App. 11.) We think, under the statute, to constitute subornation of perjury the party charged is guilty if he procures the commission of the perjury or false testimony by inciting, instigating or procuring a person to commit the same in a cause, matter or proceeding before some competent court, tribunal or public officer, when the testimony is material. Margaret made the affidavit knowingly and falsely. The purpose of the affidavit and false testimony was to have John Mickens arrested upon a criminal charge. Margaret was the instrument or agent of John Geer. He procured her by persuasion, perhaps by threats, to give the false testimony. The statute reads: “By any means whatsoever.” Morally Geer is as guilty as if he committed willful and corrupt perjury himself.
There is evidence tending to show that the affidavit was intended to be used in a criminal prosecution against John Mickens. ' This was sufficient. The person by whom the oath is administered may testify to the fact that he is an acting officer or magistrate, and his testimony, in connection with the original affidavit and jurat of the administration of the oath, is sufficient to show the oath was properly administered. Proof that a justice of the peace or other public officer has acted as such in the ¡administration of an oath is sufficient prima fade of his authority, without putting in evidence his commission or other facts giving jurisdiction. (Woodson v. The State, Ct. App. Tex., 6 S. W. Rep. 148.)
The various other allegations of error urged are included, in one way or another, with these discussed; therefore, they need not be commented upon further. .
The judgment of the district court will be affirmed.