Stephen L. West, the defendant-appellant, was indicted on multiple counts of child molestation in Colquitt County, Indictment Number 95-CR-379. Two counts were each tried separately; defendant was acquitted in both trials. Defendant was then indicted for two counts of perjury for the same statement made under oath in both trials, one count for each prior trial. Count 1 alleged that the defendant, in State v. West, on February 14, 1995, made a false statement material to the issue in question in a judicial proceeding under oath; Count 2 alleged that on June 6,1996, in the same case, the defendant made a false statement material to the issue in question in a judicial proceeding under oath. Such trial for perjury preceded a trial of the remaining counts of child molestation.
Prior to defendant’s trial for perjury, the district attorney made a motion in limine to exclude the verdicts of acquittal brought about as an alleged result of defendant’s perjury as not relevant or material. The trial court granted the motion in limine.
On November 14, 1996, the jury convicted the defendant on both perjury counts. On November 19, 1996, defendant filed a timely notice of appeal.
1. Defendant’s first enumeration of error is that an alleged false statement made under oath at one trial and repeated under oath at another trial does not constitute a separate offense of perjury, because it constituted the same alleged perjury committed at two separate trials. Defendant contends that the two separate jury trials constitute, legally, only one judicial proceeding. We do not agree.
OCGA § 16-10-70 (a) states that “[a] person to whom a lawful oath or affirmation has been administered commits the offense of perjury when, in a judicial proceeding, he knowingly and willfully makes a false statement material to the issue or point in question.” When a person is placed under oath at a judicial proceeding and makes multiple false statements, the violation of the oath constitutes a single offense; proof of any one or all of the multiple false statements under the same oath constitutes a single act of perjury.
Beecher v. State,
Therefore, it follows that, where two separate trials occur with the administration of the oath for each trial, two separate acts of perjury are committed when the defendant makes the same false statement in each trial. There has been a separate violation of each of the two separate oaths, each constituting separate offenses even though the same false statement was made at each trial. It is the violation of the oath and not the number of false statements during a judicial proceeding that constitutes a single act of perjury. See generally Beecher v. State, supra at 56.
2. The second enumeration of error is that the alleged false statement was not a material issue of fact so as to constitute an essential element of the crime of perjury. We do not agree.
“[Pjerjury is the wilful assertion as to a matter of fact, opinion, belief, or knowledge, made by a witness in a judicial proceeding as part of his evidence, either upon oath or in any form allowed by law to be substituted for an oath, whether such evidence is given in open court, or in an affidavit, or otherwise, such assertion being known to such witness to be false, and being intended by him to mislead the court, jury, or person holding the proceeding. The offense consists in swearing falsely and corruptly, without probable cause of belief; not in swearing rashly or inconsiderately, according to belief.
Herring v. State,
In both molestation trials, the defendant testified that he had not molested the children,
“[T]he question whether particular statements were material depends upon the nature of the proceeding and the matters at issue, and can be determined in each case for that case only, one test of materiality being whether the alleged false statements could have influenced the decision as to the question at issue.” Clackum v. State, supra at 49; see also Black v. State, supra at 541, 544. “[A]n investigation of the testimony in the record shows that while this testimony was apparently irrelevant and immaterial, it was, in the case in which the defendant was testifying, a material matter, because it was the statement of a fact which, if true, would perhaps have influenced the jury in the case then pending and in which the defendant was a witness.” Black v. State, supra at 544.
When a party or witness testifies on a material issue, either as part of the case-in-chief or any defense, the credibility of the witness becomes relevant, and so matters relevant to the witness’ credibility and, collaterally, material to the issue about which such witness is testifying, are material for purposes of perjury. “Perjury may be assigned on false testimony going to the credit of a witness.”
Clackum v. State,
supra at 49; see also
Wilson v. State,
In this case, Kevin John Morbach, the human resources manager at the Winn-Dixie Store where Cook worked and custodian of the time records, testified that, on October 6, 1995, Cook clocked into work at 8:59 p.m. and clocked out at 5:33 a.m. on October 7, 1995; he further testified that the time records were secure from tampering.
Investigator Donald Davis, who testified at the perjury trial as to the defendant’s testimony at the two molestation trials, testified that the materiality of the difference in time was that Cook could not have been present with the defendant to give the defendant an alibi regarding the molestation of the children during the earlier time when the alleged molestation occurred, and it would leave the defendant alone for a longer period of time with the children during the time in which the alleged molestation took place. Davis testified that it took twelve minutes to drive from the incident location to Winn-Dixie at normal speed and, speeding, that it took eight minutes. Thus, the materiality of the false statement of the defendant went to the length of defendant’s access to the children and his opportunity to molest them; the perjured testimony provided as an alibi the presence of Cook during the time of the alleged molestation in order to deny seeing any molestation of the children by the defendant.
The trial court determines by admission relevancy and materiality. Since materiality is an element of the crime of perjury, then it becomes an issue for the jury, which was found adversely to the defendant by their verdict of guilty. There was sufficient evidence for a rational trier of fact to find materiality, as well as guilt beyond a reasonable doubt.
Jackson v. Virginia,
3. The third enumeration of error is that the evidence did not sufficiently show that the alleged false statement was “made willfully, knowingly, and absolutely.” We do not agree.
Intent to make a false statement may be proven from all the circumstances in the same fashion as intent is established in other criminal cases.
Rowe v. State,
If a person seeks to ascertain the facts and testifies upon their reasonable belief as to the facts, then such is good faith. “Reasonable ground for believing the statement to be true may furnish an adequate defense.” (Emphasis supplied.) Stokes v. State, supra at 879. “Although a witness may have testified to a fact which was not true, yet if he believed it to be true at the time, he is not guilty of perjury. The intent to testify falsely and the falsity of the testimony given must both appear.” Thomas v. State, supra; see also Herring v. State, supra at 714; Stokes v. State, supra at 880. Accordingly, it is a jury question as to whether or not the facts sufficiently prove the requisite intent and thus, perjury. In this case, there is sufficient evidence for a rational trier of fact to find intent beyond a reasonable doubt. Jackson v. Virginia, supra.
4. The fourth enumeration of error is that the trial court erred in granting the motion in limine and denying the defendant the right to inform the jury that he had previously been acquitted of child molestation in two trials, based on the allegedly peijured testimony. We do not agree.
The prior acquittals in the two trials for child molestation have
no probative value on the trial for perjury, because evidence of the acquittals is neither relevant nor material to any issue in this case. OCGA § 24-2-1. Evidence is relevant when it logically tends to prove or disprove a material fact which is at issue in the case; every fact or circumstance serving to elucidate or throw light upon a material issue is relevant.
Sample v. Lipscomb,
“The object of all legal investigation is the discovery of the truth. The rules of evidence are framed with a view to this prominent end, seeking always for pure sources and the highest evidence.” OCGA § 24-1-2. “The reception of perjured evidence is never justice, no matter how salutary the end in view.”
Hollins v. State,
Judgment affirmed.