83 Fla. 311 | Fla. | 1922
Lead Opinion
The writ of error in this case was returnable September 2, A. D. 1921, bnt the transcript of the record was not filed until October 8, 1921, and by stipulation of counsel the times for filing the briefs for plaintiff in error and the State were postponed to January 5 and February 9, 1922, respectively, so that the case is just now ready for consideration by this court.
The crime for the commission of which defendant, plaintiff in error here, was convicted is perjury. The offense charged and the assignment of perjury contained in the indictment are that in the trial of a case in the county judge’s court in which the accused was .charged with the crime of larceny “it then and there became and was a material matter, of which the said Court then and there had jurisdiction, for the said Court and Jury to know and be informed whether I. D. Bodie, a witness for the State in due form of law sworn as a witness in behalf of the State by E. M. Magaha, Judge of said Court; had attempted to procure George Ward at Chumuckla, Florida, about 11:00 o’clock A.'M. on Saturday, May 14th, ‘to swear falsely in behalf of the State in the trial of said ’Herman Watson aforesaid, by offering to pay him, the said George Ward Ten Dollars ($10.00) to swear in the trial of'the case of the State of Florida vs. Herman Watson chargUVwith' larceny of a plow; that Herman'Watson hdd' told him', the stiid Geo. Ward, that he, Herman Wat'son7:hád stóíen^the‘plow,
This writ of error brings up for review the judgment imposing sentence on defendant upon his conviction on this charge.
When the case was called for trial defendant, through his counsel, presented a motion for a continuance of the ease. The grounds of the motion are that the ease in which the alleged perjury was committed by defendant is still undetermined and that in the event the prosecution against him proceeds to trial in which he is adjudged guilty of perjury as charged he will no longer be competent but will be disqualified as a witness in such case. His solicitude for the party in whose behalf he testifies may be commendable, but the trial court cannot be held to have committed reversible error for not entertaining a like concern. There is no law requiring the court to take any action having for its object the preservation of a defendant’s status as a qualified witness in some other pending judicial proeeding, the non-observance of which may be said to infringe upon or violate some right possessed by defendant. The trial court may very well have thought that if the action suggested by the motion for a continuance were demanded in
During the progress of the trial, after the defendant had been duly arrainged and several witnesses on behalf of the State had been examined, a motion to quash the indictment was presented.- The court declined to consider this motion at this stage of the proceeding on the ground that it came too late. This motion is made a part of the bill of exceptions but is not contained in the record proper. In a number of cases this court has held that a motion to quash an indictment should be evidenced to the appellate court by the record proper and not by the bill of exceptions and that when this requirement is not observed and the motion is-not so-evidenced it will not be considered. Parramore v. State, 81. Fla. 621, 88 South. Rep. 472; Bell v. State, 61
By a motion in arrest of judgment the sufficiency of the indictment is questioned upon the grounds that it is vague and indefinite and fails to charge the defendant with the offense of perjury; that it does not sufficiently show the materiality of the alleged false testimony of defendant; that it fails to show that the court in which the alleged false testimony was given had jurisdiction of the cause on trial; that it fails to show that any issue was being tried by the court in which the alleged false testimony was given; and that it fails to sufficiently set out the alleged false testimony given by defendant constituting perjury.
The policy of waiting until after the trial of a case to attack an indictment‘because of insufficiency in its allegations by a motion in arrest of judgment is not favored. In a number of cases this court has said that defects in indictments and informations should be called to the attention of the trial court by a motion to quash or demurrer so that the defects, if any, may be corrected by the filing of another indictment or information. Jones v. State, 75 Fla. 533, 78 South. Rep. 529; Smith v. State, 72 Fla. 449, 73 South. Rep. 354; Adams v. State, supra; Barineau v. State, 71 Fla. 598, 72 South. Rep. 179; Barber v. State, 52 Fla. 5, 42 South. Rep. 86.
In the case of Barineau v. State, supra, the court said: “Where an indictment does not wholly fail to allege a crime or an essential element of a crime and sufficiently states the nature and cause- of the accusation against the defendant, and is not so vague, indistinct and indefinite as
Upon a motion to quash it has been held by this court that “an indictment for perjury is sufficient which is not so vague, indistinct or indefinite as to mislead the accused or embarrass him in the preparation of his defense or expose him to substantial danger of a new prosecution for the same offense.” Jarvis v. State, 73 Fla. 635, 74 South. Rep. 794; Bennett v. State, 65 Fla. 84, 61 South. Rep. 127; Edwards v. State, 62 Fla. 40, 56 South. Rep. 401; Gray v. State, 58 Fla. 54. 50 South. Rep. 538; Mills v. State, 58 Fla. 74, 51 South. Rep. 278; Johnson v. State, 51 Fla. 44, 40 South. Rep. 678.
The indictment may be imperfect in some respects. The truth of the alleged false swearing could and should have been more positively negatived and its falsity more directly and more fully alleged, but tested by the foregoing rules it cannot be said to be insufficient to sustain a conviction. It is not so meager nor so indefinite in its allegations as to fail to fully inform the defendant of the charge which he was called upon to meet or to mislead or embarrass him in the preparation of his defense or expose him to substantial danger of another prosecution for the same offense. Nor is it so indefinite and defective in its allegations as to wholly fail to allege the offense, or an essential element of the offense, with which defendant is charged and thus render it-amenable to successful attack by motion in arrest of judgment.
Instructions given and requested instructions refused are also made the basis of several assignments but no reversible error is found in these rulings of the trial court. If requested instruction which were refused by the court were applicable they were covered by instructions given, and this court has often reiterated the rule that it is not error to refuse to give requested instructions covered by instructions which are given. Long v. State, 78 Fla. 464, 83 South. Rep. 293; Goff v. State, 75 Fla. 87, 77 South. Rep. 877; Fine v. State, 70 Fla. 412, 70 South. Rep. 379; Hoskins v. State, 70 Fla. 186, 69 South. Rep. 701. Considering the evidence as a whole the instructions given by the court of , its own motion and those given upon request of defendant, the issues made were fairly presented and no injustice was done the defendant.
There is nothing in the record to indicate that the jury were influenced by any consideration outside the evidence. The evidence is sufficient to support the verdict and no
Affirmed.
Rehearing
On Rehearing.
Upon application for rehearing it is asserted that the motion to quash the indictment and the action thereon are properly in the bill of exceptions because the court refused to consider the motion. Even if it is conceded that this is true and that the rule announced in the opinion upon this point is not applicable, the motion was offered or made after a plea in bar had been entered and while the case was on trial on that issue. This was too late and the court did not err in refusing to consider the motion to quash at that time. The legal sufficiency of the indictment was tested by motion in arrest of judgment and its sufficiency was adjudicated in affirming the judgment.
Rehearing denied.