Walker v. State , 96 Ala. 53 ( 1892 )

WALKER, J.

Tbe indictment in tbis case substantially follows tbe form prescribed by tbe Code for an indictment for perjury committed in a civil case. — Criminal Code, 1886, Eorm No. 67, p. 275; and § 3908. Tbe substance of tbe proceeding, in wbicb tbe alleged false oath was taken, is as fully averred as in tbe Code form; tbe name of tbe officer before whom tbe oath was taken, that such officer bad authority to administer tbe oath, and tbe falsity and materiality of tbe matter on wbicb tbe perjury is assigned, are clearly, and definitely alleged. Under the statute, these allegations ‘

‘ are sufficient. — Code, § 3908; Barnett v. State, 89 Ala. 165; Hicks v. State, 86 Ala. 30.

The indictment describes tbe proceeding in which the alleged false oath was taken as “an application for a new trial in a civil action in the Circuit Court of Montgomery county in which one Jacob Griel was plaintiff and said Elisha Walker defendant.” The State offered in evidence an affidavit of the defendant which showed on its face that it was made in “the case of Jacob Griel et als. v. Elisha Walker.” This evidence did not correspond with the allegation of the indictment as to the description of the proceeding in which the affidavit was made. A suit by Jacob Griel and others is not properly described as a suit by Jacob Griel alone. The proceeding alleged and the one proved are not identical. It can not be affirmed that the case mentioned in the affidavit was the same as the one described in the indictment. The allegation of the indictment in this regard is material matter of description. It imports a suit in which there was but one plaintiff. The proof offered does not correspond with that description. The objection to this proof on the ground of variance should have been sustained. — Brown v. State, 47 Ala. 47; McMurry v. State, 6 Ala. 324; State v. Harwell, 4 Jones Law (N. C.) 55; State v. Mayson, 3 Brevard (S. C.) 284; Clark’s Manual Cr. Law, § 1243.

The other evidence on the trial as to the suit in which the affidavit for a new trial was made by the defendant disclosed a case not answering to the description given in the indictment. In this regard there was a fatal variance between the allegation and proof. This variance renders unnecessary the consideration of other questions developed on the trial.

Many of the questions arising on the evidence as applicable to the present indictment may be met and obviated in the framing of a new indictment. The proceeding in which the affidavit in question was made may be described so that the proof will correspond with the description. Different counts may be introduced to meet the different aspects of the evidence upon the inquiry as to whether-the defendant, in making the affidavit, was sworn by the clerk or by the deputy clerk; and a count may be added alleging in the alternative that the defendant was sworn by the clerk or by the deputy clerk. — Code, § 4383.

Reversed and remanded.