State v. Young

Oct 11, 1911
Reporters:
Before:
Ladd
Ladd, J.

The defendant has been tried three times. The first indictment charged him with having given whisky to Will Gordon, a person in the habit of becoming intoxi*5eated. On trial he was acquitted.’ At the same term of court he was indicted for having committed perjury during the above trial, in that he had falsely testified that he had neither given whisky to said Gordon in a certain barn or paintshop on the 14th day of November, 1909. Though he was acquitted of the charge- of having furnished his neighbor whisky, he was found guilty of having falsely testified that he had not done so. But on ‘motion in arrest of judgment- the verdict was set aside,’ and the case submitted to another grand jury. A second indictment charging the same offense was returned, and he was again found guilty and judgment entered accordingly. The appeal is from this conviction.

law: perjury: evidence. I. Appellant contends that the court erred in not passing on the ninth ground of ‘the motion in arrest of judgment, and in not discharging him, for that the issue alleged was not involved in nor the alleged false testimony material on the trial of the . ” indictment charging him with giving whisky to said Gordon. That indictment alleged the giving to have been in the county generally, and it is said that, even though the accused did falsely testify that he had not given Gordon whisky in the barn or paintshop, such evidence was immaterial, for that it did not appear that any one had testified otherwise. If this were true, his testimony would not have been in conflict with any evidence introduced by the state, but it would‘ have been material as tending to show that he had not furnished the whisky in the county. This becomes apparent in‘looking at the result had he testified to the truth as claimed by the state; i. e., that he had given Gordon whisky at one of the places mentioned. Had he done so, his testimony would not only have beeRt material, but likely conviction would have followed. Plainly enough, then, his denial that he had given the whisky at the place mentioned should be regarded as material.

*62. Same: motion in arrest of judgment. *5Even were this not so, however, the point could not *6properly bo raised on motion in arrest of judgment. Section 5426 provides that such a motion may be granted (1) upon any ground which would have been ground * / . - ___ - ior demurrer (2) when upon the whole record N -r • no legal judgment can he pronounced. It is needless to say that the insufficiency of evidence is not ground for demurrer. Nor do we think the evidence a part of the “record,” as that term is used in this statute. It only becomes such when duly certified and filed as a bill of exceptions for the purposes of appeal. Their view is confirmed by section 5424 of the Code, making the insufficiency of the evidence one of the grounds for new trial, and farther by the overwhelming weight of authority declaring that neither the admissibility of evidence nor its insufficiency nor the correctness of the instructions can be challenged by motion in arrest of judgment. State v. McCool, 34 Kan. 617, (9 Pac. 745) ; State v. Gerrish, 78 Me. 20, (2 Atl. 129); Green v. State (Tex. Or. App.) 29 S. W. 1072; Bright v. State, 90 Ind. 343; Powe v. State, 48 N. J. Law, 34, (2 Atl. 662); State v. Washington, 104 La. 443, (29 South. 55, 81 Am. St. Rep. 141). See cases collected in 2 Ency. Pleading & Practice 813, and 12 Cyc. 759. The record in a criminal case • ordinarily is understood to be the written history of the proceedings from the beginning to the end, including such papers as are made by statute a part of the record and the evidence. United States v. Taylor, 147 U. S. 695, (13 Sup. Ct. 479, (37 L. Ed. 335) ; State v. Anders, 64 Kan. 742, (68 Pac. 668). There was no error in the ruling.

3‘ nesses- ‘cápacity of children.

II. No objection was interposed to the competency of Harold Gordon as a witness and his capacity to testify cannot be questioned in this court for the first time. It may be added, however, that, had there been objection, it must have been overruled, for, . , , ’ ’ though but twelve or thirteen years of age, the showing of his capacity to understand the obligation of *7an oath was sufficient, and not disputed. See State v. King, 117 Iowa, 484; State v. Meyer, 135 Iowa, 507; State v. Gregory, 148 Iowa, 152.

4 Same- per-Jency: oT^vil denceIII. It is insisted that the evidence was insufficient to convict. That it was in sharp conflict must be conceded. Gordon testified that the defendant brought a pint bottle whisky when he was in his barn, and that he drank from the bottle. It was not essen-tial that there be two-witnesses to the falsity of defendant’s testimony; it being sufficient that the one witness be strongly corroborated. State v. Wood, 17 Iowa, 18; State v. Raymond, 20. Iowa, 582. However, the two sons of Gordon were in the loft of the barn with a nephew of defendant, and they testified to seeing the defendant hand a bottle of whisky’ to their father, and to seeing him drink therefrom.

The evidence was sufficient to carry the case to the jury, and the judgment is affirmed.