Hood v. State , 44 Ala. 81 ( 1870 )

PETERS, J.

The constitution of this State forbids that any person shall “ be deprived of his life, liberty or property, but by due course of law.’’ — Con. Ala. 1867, art. I, § 7. Due course of law, in this sense, means that every person who is charged with an offense, shall be charged and tried as required by the laws of the land, and not otherwise. And for this purpose, in a criminal prosecution, the record must show that the accused is charged with an indictable offense according to the forms of law, and that- his trial has been conducted as the practice, required by the law, prescribes. If these requisites, on the face of the record, appear to be wanting, it is the duty of the court to refuse to give judgment, on motion pointing out the deficiencies. This is called a motion in arrest of judgment. And the effect of such a motion, if granted, is to set aside all the proceedings in the case, and allow a judgment of acquittal to be entered. This motion can not be made before the verdict, nor can it be made after the sentence. It, therefore, comes properly between the verdict and the judgment of condemnation ; and it must be decided before the sentence is pronounced. It can not, therefore, be continued until after sentence. — 1 Chitty’s Crim. Law, 661; 1 Bish. Crim. Proc. p. 850, § 850, et seg. The constitution and the statute law recognize the right of the accused to have the judgment against bim arrested, as one of his means of defense, and it is error improperly to defeat its effect. — Const. Ala. 1867, art. I, § 7; Rev. Code, § 4146. It may be said, that to continue such a motion until after sentence is pronounced is tantamount to its refusal, and that it ought to be so treated. Such is not the legitimate effect of a continuance. It is an order intended to keep the proceeding before the court for future disposition, not an order of final disposition. To treat it otherwise, would lead to confusion. — 1 Chitty’s PI. 421, note; 3 Black. Com. 316.

This might be sufficient to dispose of this case and send it back to the circuit court for a new trial. But there is another question which arises on the record, that will be important on a new trial; that is, the sufficiency of the charge alleged in the indictment, and the materiality of certain testimony offered by the accused in the court below, in explanation of his act in taking the oath.

Perjury is a corrupt, willful, false oath, taken in a judicial proceeding, in regard to a matter or thing material to a point involved in the proceeding. This oath must be taken before some officer or court having authority to administer it. This is a statutory proceeding, and the affidavit required is a statutory oath. This is the oath that the clerk is authorized to administer. His powers are not general, but special, and he can no.t exercise a broader jurisdiction than is conferred upon him by the statute. — Revised Code, §§ 680, 645, 771; Pamph. Acts 1868, page 252. The clerk has no power to construct a new oath, different from that prescribed by the statute. He must confine his action to the authority thus given.

The act prescribes that certain facts shall exist, and that affidavit of “ either ” of these facts being made, and bond given, or affidavit of the plaintiff’s inability to give such bond being also made, the attachment shall at once issue. The affidavit made by the accused, for the falsehood of which he is indicted, is quite different from the one required and authorized by law. It is an affidavit that the affiant “ had reason to believe ” that certain crops would be removed from certain premises, without full payment of certain wages, without affiant’s consent. This was no grounds upon which an attachment could issue. It is not the oath required by the statute. The facts upon which an attachment could issue, as required by the statute, are the actual removal of the crops or a portion of them, or the act of being about to remove them or a part of them; the nonpayment of wages owing to the laborer, and the removal or attempt to remove them or a part of them without his consent; and not his mere belief of such facts. Such an affidavit may possibly be amended so as to make it conform to the requirements of the law, but until it is so amended, its allegations and statement of facts, though untruthful, cannot be regarded as material to the proceedings in such sense as to support a charge of perjury. — Bevised Code, §§ 2989, 2990.

Evidence of the advice of the attorney of Hood, at the time the affidavit was drawn and sworn to, was competent to show the absence of corrupt motive. It was competent to show that the accused might have been thus led into a mistake. Then the oath, though untruthful, could not have been perjury.— The State v. Lea, 3 Ala. 602; 2 Hawkins’ Cr. Pl. b. I, ch. 69, § 2, p. 8, (7th London ed.) The court erred in rejecting it, as shown in the bill of exceptions. I may also add, that it admits of grave doubt whether the indictment in this case is sufficient. — Bev. Code, § 1139.

The judgment of the circuit court is therefore reversed, and the cause is remanded for further proceedings in the court below, in conformity with this opinion. The accused, Jerry Hood, will be held in custody until discharged by due course of law.