Williams v. State , 68 Ala. 551 ( 1881 )

BRICKELL, C. J.

Perjury committed on the trial of an indictment for felony is visited by the statute with severer punishment than a false oath or affirmation taken in the course of other judicial proceedings.—Code of 1876, §§ 4112-13. The Code prescribes forms of indictment for the offense, the forms differing only in averments designating the character of the proceeding in which the oath was taken,— whether it was on the trial of an indictment for felony, or in some other proceeding. No special averment of the materiality of the false oath or evidence is necessary; nor is it necessary by averments to indicate bow it was or became material.” A general averment of materiality is sufficient under the statutory forms, and, as in other criminal offenses, the indictment is sufficient, if it pursues the form laid down in the Code.—Brown v. State, 47 Ala. 47. It is not true, as is supposed by the appellant’s counsel, that the present indictment is in the alternative, charging that the appellant testified to one or the other of several different facts. The averment is that her testimony charged to be false, consisted of a denial that she had made either of several statements to persons named at a specified time and place. The demurrer to the indictment was properly overruled.

2. The indictment in the cause, on the trial of which the perjury is charged to have been committed, and the minute entry oí the judgment rendered on the trial, were admissible evidence. If it had appeared the final record had been made up as required by law, that ought probably to have been produced. But it not appearing this record had been made, the original indictment being of the file, and the minute entry of the judgment, of the records of the City Court, they were competent evidence.—1 Brick. Dig. 829, § 349. The other evidence, to the introduction of which exceptions were taken, tended to show the statements made by the appellant as a witness, and is not so variant from the allegations of the indictment, that objections to it ought to have been sustained.

3. The proposition embodied in the first instruction to which exception .was taken, is, that a witness giving false answers to questions propounded1 to him on cross examination with the view of impairing his credit, is guilty of indictable perjury. Materiality to the issue is an essential, indispensable element of false testimony, upon which an indictment for perjury can be supported. The facts falsely sworn to, it is not understood, however,-must be immediately material to the issue. If they have a direct and immediate connection with facts material to the issue, adding weight to the evidence of such facts, the element of materiality exists. The statements it is charged the accused made on the day before the trial of Bainey on the indictment- for carrying concealed weapons, indicated hostility to him ; not only were they indicative of her hostility, a fact effecting her credibility as a witness, but they were in denial of her knowledge of the fact of his carrying concealed weapons. If she testified to the material fact that he had carried concealed weapons, her admission of expressions of hostility to him on the preceding day, and of her denial of all knowledge of the criminating fact, would have impaired, if it bad not destroyed, the weight of her evidence. There was a'direct connection between her •evidence going immediately to the issue, and the evidence sought to be elicited from her, as to which she is charged with having testified falsely, affecting her credibility, Questions having no general bearing on the matters in issue be-eome material, when they have relation to the credit of a witness, and false swearing in answer to them is perjury. Roscoe Cr. Ev., § 18; State v. Strat, 1 Murph. (N. C.) 124.

4. The other instruction to which an exception was reserved, asserts only the well settled rule, that the testimony of a single witness was sufficient to prove that the appellant testified as charged in the indictment; while to authorize her conviction, the evidence she gave must be disproved by two witnesses, or by one witness and corroborating circumstances. 3 Whart. Cr. Law, §§ 2278-9.

The fourteen instructions requested by the appellant were •asked as a whole and not separately, and a single exception reserved to their refusal. Unless all of them embodied correct propositions of law, applicable to the facts of the case, their refusal can not be made the subject of review. They have been examined, and without prolonging this opinion by discussing them separately, it is enough to say, that several of them express with more or less distinctness, a proposition, the converse of that embodied in the instruction of the City Court last referred to, and were for this, if not for oth,er •reasons, properly refused. We find no error in the record prejudicial to the accused, and the judgment must be affirmed.