38 La. Ann. 567 | La. | 1886
The opinion of the Court was delivered by
The defendant appeals from the verdict and judgment thereon sentencing him on a charge of perjury to three years at hard labor.
He relies on a motion in arrest, a bill of exception and an assignment of errors which together are based on three grounds :
1. That the indictment does not expressly aver that the court had jurisdiction to hear and determine the cause wherein it is alleged the accused swore falsely, or that from the nature of the proceedings, such jurisdiction was vested in the court, to enable the appellate court to take judicial notice of the fact.
2. That the indictment does not aver that the matter sworn to and upon which the perjury was committed was material, or does not show on its face facts showing that the matter sworn to was material.
8. That the indictment does not affirmatively charge that the judicial proceeding charging the defendant with murder, and in which it is averred that the perjury was committed, was by indictment found by a grand jury.
I and II.
The first and second grounds are kindred to those urged for a similar offense in the case State vs. Schlessinger, recently decided, in which it was held, that in an indictment for perjury, it is not essential that the authority and jurisdiction of the court administering the oath, should he expressly averred, if they sufficiently appear from the facts set out; that when the presentation for perjury is in the same court in which the perjury was committed, it may take judicial cognizance of its own jurisdiction, if the indictment sufficiently sets forth facts and that, though the materiality of the matter sworn to be not expressly averred,
For the reasons given in that case, the two grounds stated are untenable.
III.
The indictment against the accused, is full and explicit, that he appeared and was produced as witness in the case of State vs. Thos. J. Ford and others named — “being then and there charged with wilful murder.”
The Constitution of this State, art. 5, provides that prosecutions for capital crimes, such as murder, shall be by indictment, or presentment of a grand jury.
No charge for willful murder could be pending in the district court against Thos. J. Ford et als. unless preferred by indictment found by a grand jury.
These words, if essential, are necessarily, forcibly implied in the word “charged" which the indictment contains.
It is worth notice, that the indictment in the present case, distinctly alleges “to which charge said Thos. J. Ford and others, and each one pleaded not guilty" — issue being thereby formed.
There is no reason to disturb the judgment appealed from, which is affirmed with costs.
