53 Ga. App. 334 | Ga. Ct. App. | 1936
Ben C. Williford was indicted for the offense of perjury. The indictment contained five counts. In the first count it is alleged that he “did wilfully and knowingly swear absolutely falsely in a judicial proceeding in the superior court of Fulton County,” this proceeding being a petition to disbar defendant Ben C. Williford from the practice of law in the State of Georgia, in that he did file in the superior court of Fulton County a plea of res adjudicata to said suit, wherein he alleged in paragraph 1: “That on the 5th day of January, 1922, there was a suit filed against this defendant to disbar him by R. D. Smith, H. S. Murray, and T. A. McNicholas, residents and citizens of Tift County, Georgia, on the same grounds as are set out in plaintiff’s petition in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10,” and in paragraph 4 thereof “that said suit came on regularly for trial in the superior court of Tift County, Georgia, as aforesaid, on December 5, 1922, when, upon oral motion in the nature of a general demurrer by this defendant’s attorney, W. B.. Bennett, the same was dismissed and disallowed by his honor, B. Eve, judge of Tift superior court, then and there presiding,” to which plea he attached the following affidavit:. “Georgia, Fulton County. You, Ben C. Williford, do swear that the facts and things as set out and alleged in your original plea of res adjudicata, so far as you know them, are true; and so far as you have been advised you believe them to be true; so help you God. Ben C. Williford. Sworn to and subscribed before me, this the 30th day of July, 1935. W. B. Biggers, Notary Public, Georgia, State at large,” and that the allegation that “upon oral motion in the nature of a general demurrer by this defendant’s attorney, W. B. Bennett, the same was disallowed by his honor, R. Eve, judge of Tift superior court, then and there presiding,” was absolutely false, “was known by accused to be false,” in that the “truth is that said suit No. 483 in the superior court of Tift County was disposed of by an order of Judge B. Eve, judge of the superior court of Tift County, in the following language: ‘Upon motion of R. D. Smith, one of the petitioners and attorney for petitioners, the written petition is withdrawn in open court, this Dec. 5, 1922. R. Eve, J. S. C. T. C.’ ”
Count 2 alleged that the defendant “did wilfully and knowingly swear absolutely falsely” in the same proceeding as count 1, in that
Count 3 alleged in substance that the defendant did wilfully and knowingly swear absolutely falsely, in the same proceeding as set out in counts 1 and 2, in that in the proceeding to disbar the defendant the petition alleged in paragraph 1 that “Ben C. Williford is a resident of above State and county [the petition being captioned “Georgia, Fulton County”], is licensed to practice law in the State of Georgia, and maintains an office and practices law in said county;” and that in the answer filed by the defendant to this petition, to which the following affidavit was attached: “Georgia, Fulton County: You, Ben O. Williford, do swear that the facts and things as set out and alleged in your original plea and answer, so far as you know them, are true, and so far as you have been advised you believe them to be true; so help you God. Ben C. Williford. Sworn to and subscribed before me, this the 30th day of July, 1935. W. R. Biggers, Notary Public, Georgia, State
Count 4 alleged in substance that the defendant did swear falsely in the same proceeding as set out in counts 1, 2, and 3, in that in the proceeding to disbar the defendant the petition alleged in paragraph 1 that “Ben C. Williford is a resident of above State and county [the petition being captioned “ Georgia, Fulton County”], is licensed to practice law in the State of Georgia, and maintains an office and practices law in said county,” and that in the plea to the jurisdiction filed by the defendant to this petition, to which the following affidavit was attached [being the same affidavit as set out in count 1], “that at’ the time of the commencement of the said suit, on the 17th day of April, 1935, and from thence hitherto, the defendant resided and was a citizen of said county of Tift, and is not a resident and citizen of the county of Fulton,” which allegations “were and are absolutely false, were known to accused to be false at the .time he so swore to the same,” and the “truth was and is that accused was, on April 17th, 1935, and has been continuously since that time a resident of Fulton County, Georgia, and an attorney maintaining an office and practicing law in Atlanta, which is the county seat of said county.” It becomes unnecessary to set out count 5, in view of the fact that since this case appeared in this court on demurrer the defendant has been tried, and the jury has returned a verdict of not guilty as to this count.
The defendant filed an elaborate demurrer to the indictment as a whole, and to each separate count. The demurrer as a whole makes substantially the following questions: (1) Do the allegations of the indictment set out the crime of perjury? (2) Is it necessary -that the “judicial proceeding” in which the indictment alleges the defendant committed perjury, be finally terminated
1. The question made by number 1 (above) is whether perjury may be committed by the making of false affidavits required in support of pleadings in civil matters. In other words, is the false verification of pleadings by oath (the verification by oath being required by law) false swearing, “in a matter material to the issue or point in question, in some judicial proceeding”? We think the question must be answered in the affirmative. In certain instances the required oath in support of a plea or an answer is a condition precedent to its being heard at all and as such is a necessary part of the proceeding. If the plea or answer set up a matter or a state of facts which is material to the issue involved, and these facts are verified by an oath, such oath is in reference to a matter material to the issue and in connection with a judicial proceeding. In 2 Bishop’s Criminal Law, § 1032, it is said, concerning the materiality, that “whatever evidence tends to influence the result of the direct or any collateral issue is material within our present doctrine, but what is not thus adapted to affect any result is not thus material.” In Black v. State, 13 Ga. App. 541 (79 S. E. 173), it is said: “A test of materiality is whether the alleged false statement could have influenced the decision as to the question at issue in the judicial proceeding in which the perjury is alleged to have been committed. If the statement influenced the decision of the tribunal to which it was made, it was material to the investigation.” A precedent to
2. The next question raised by the demurrer, as already pointed out, is whether it be necessary that the proceeding in which, as the indictment charges, the perjury was committed, be terminated. This question is answered in the negative by all respectable authority. See State v. Keene, 26 Me. 33; Finch v. U. S., 1 Okla. 396 (33 Pac. 638); Com. v. Moore, 9 Pa. Co. Ct. Rep. 501; State v. Rowell, 72 Vt. 28 (47 Atl. 111, 82 A. S. R. 918); Hereford v. People, 197 Ill. 222 (64 N. E. 310); People v. Hayes, 140 N. Y. 484 (35 N. E. 951, 23 L. R. A. 830, 37 Am. St. R. 572).
3. It was not necessary to set forth the entire pleadings in the proceeding wherein the perjury is alleged to have been committed. See State v. Avery, Man. Unrep. Cas. (La.) 258; Bradford v. State, 134 Ala. 141 (32 So. 742); People v. Ah Bean, 77 Cal. 12 (18 Pac. 815); Humphreys v. State, 17 Fla. 381; State v. Flagg, 25 Ind. 369; Com. v. Combs, 125 Ky. 273 (30 Ky. L. R. 1300, 101 S. W. 312); State v. Bixler, 62 Md. 354; State v. Jolly, 73
4. It is necessary in an indictment for perjury to allege (1) before what court the alleged offense was committed, and, (2) that such court had jurisdiction of the subject-matter and the person. Maynard v. People, 135 Ill. 416 (25 N. E. 740); State v. Cunningham, 66 Iowa, 94 (23 N. W. 280); Steinston v. State, 14 Tenn. (6 Yerg.) 531; Com. v. Pickering, 49 Va. (8 Grat.) 628 (56 Am. D. 158). The allegation as to the court in which the perjury was committed is distinctly alleged. It is settled that the allegation as to jurisdiction may be made either by direct averment or by a statement of facts from which jurisdiction may be inferred. Com. v. Knight, 12 Mass. 274 (7 Am. D. 72); People v. DeCarlo, 124 Cal. 462 (57 Pac. 383); Eighmy v. People, 79 N. Y. 546; Franklin v. State, 91 Ga. 712 (17 S. E. 987). Jurisdiction of the subject-matter and of the person of the defendant is alleged by distinct averment of the indictment. This ground of the demurrer is obviously without merit.
5. As to the materiality of the alleged false oaths, it may be shown by a direct averment of that fact, or by setting forth the facts from which the materiality is made apparent or necessarily inferred. 2 Wharton’s Criminal Proc., § 1096, and cit.; King v. State, 103 Ga. 263 (30 S. E. 30). The materiality is shown both by direct averment -and by allegations from which its materiality may be inferred.
6. It is insisted that prosecution for perjury may not be based on an affidavit which states that the facts are sworn to be true “so far as you know them are true, and so far as you have been advised you believe them to be true.” “One who swears to a matter as to the best of his knowledge, information, and belief is guilty of perjury where he did not believe that the matter sworn to was true.” 48 C. J. 825. “A false statement of an opinion or belief may constitute the offense.” 48 C. J. 825. In Herring v. State, supra, it was said: “An affidavit made by one to obtain a criminal warrant may be the basis of an indictment for suborna
Judgment affirmed.