State v. Silverberg

78 Miss. 858 | Miss. | 1901

Anderson, Special J.,

delivered the opinion of the court.

The indictment should have set out the substance of the issue involved in the chancery court cause. The point of inquiry should have been stated. £ £ The proceeding should be identified by charging the legal name, as, for example, that it was a trial for murder, or an action of ejectment, and the matter in issue must be averred with sufficient clearness to inform the person accused of perjury of the exact nature of the charge against him.” 16 Enc. of Pl. & Prac., p. 321, sec. 2, and cases cited in the notes. On this point the indictment charges that, ‘ ‘ in a certain issue joined between E. B. Tennison, complainant, and H. Silverburg, defendant, No. 1181, in the chancery court of said county and state, ... in making answer to a certain bill of injunction filed in said chancery court by said Tennison against said Silverburg, ’ ’ etc. This amounts to no more than giving the style of the case, for there are numerous causes of equitable cognizance in which a writ of injunction may issue. The phrase, “bill of injunction,” does not indicate in the remotest degree the issue involved.

Section 1362 of tbe code provides that an indictment for perjury shall set forth the substance of the offense charged. This statute, which is a substantial copy of 23 George II., c. 11, did not intend to dispense with the necessity of setting out in an indictment for perjury the substance of the issue or point of inquiry in the cause in which the perjury is alleged to have been committed, and if it had done so in express terms, it would have been in violation of that clause of section 26 of the bill of rights which secures to the defendant charged with crime the right “to demand the nature and cause of the accusation.” Murphy v. State, 24 Miss., 590; Williams v. State, 42 Miss., 328.

This question was not involved in Lea v. State, 64 Miss., 278, and State v. Jolly, 73 Miss., 42. The question in those cases was, whether the facts and circumstances necessary to show that the matter sworn to in the false oath was material to the issue upon which it was taken, should have been set out in the indictment, and the court held in Lea v. State that' it was sufficient to charge generally its materiality, without showing particularly how it was material. In both those cases the issue or point of inquiry upon which the false oath was taken was fully set out.

The indictment under consideration makes no assignment of perjury. There is no positive averment of the falsity of the oath taken by Silverberg to his answer. “The averment of falsity must be made expressly and positively, and not by way of implication.” 16 Enc. Pl. & Prac., pp. 338-340; 2 Bishop on Crim. Pro., sec. 918; Am. Crim. Law (Wharton), sec. 2259. It is not averred in the indictment as a fact that Tennison had a place of his own and was solvent, but that Silverberg well knew he had a place of his own and was not financially worthless. “An indictment against one summoned as a juror, for having falsely sworn that he had not formed or expressed an opinion as to the guilt or innocence of the person, alleged that he well knew that he had both formed and expressed an opinion, is not good, since it does not allege a fact. ’ ’ State v. Moffatt, 7 Hum. (Tenn.), 250.

Neither does the indictment aver the truth in relation to the matter of which the perjury is assigned. This is indispensable. 16 Enc. Pl. & Prac., 340.

For these reasons, the indictment is void. It charges no offense under the law, and the judgment is

Affirmed.