Smith v. State , 103 Ala. 57 ( 1893 )

COLEMAN, J.

At a term of the Anniston city court, the defendant was tried and convicted of perjury. It is insisted that the city court of Anniston had no jurisdiction of the civil case on the trial of which it was averred the offense of perjury was committed. That was a suit brought to recover damages for personal injuries, brought by John Smith v. The Richmond & Danville R. R. Co. The cause of action for which the civil suit was brought arose in Jefferson county, Ala., and territorially was beyond the limits of the area over which the city court of Anniston had jurisdiction. It is, therefore, contended that the city court had no jurisdiction of the civil cause. The act establishing the city court of Anniston, confers jurisdiction upon causes of action “arising within said designated limits whether the parties reside therein or not,” but this provision does not limit, and was not intended to limit, the jurisdiction of the court to causes of action only arising within the designated limits. It has jurisdiction over all persons residing within the designated limits, without regard to where the cause of action arose, and in addition thereto to causes of action arising within the limits, whether the person resides therein or not, provided, of course, that he resides in the county of Calhoun. This is evident from reading the statute.— Acts 3888-89, pp. 871, 872.

The evidence shows without conflict that the Richmond & Danville Railroad Co. was running its trains within the “designated limits,” and “was doing” business therein. — Code, § 2642 ; Sullivan v. Sullivan Timber Co. 15 So. Rep. 941. The exceptions were not well taken.

The State introduced in evidence, against the objection of the defendant, the original pleadings, and the rulings of the court, and the judgment of the court in the case of John Smith v. The Richmond & Danville R. R. Co. Tt was proven that the final record in the case had not been made up. There was no error in admitting this evidence. — Williams v. The State, 68 Ala. 551.

The court did not err in admitting the supoena docket of the case of John Smith v. The Richmond & Danville R. R. Co. The purpose of this evidence was to show that the defendant was summoned as a witness, that he attended and was duly sworn. The testimony of the clerk, that he checked the names of the witnesses who were sworn and examined, and the check opposite the name of the defendant in connection with this testimony, were competent as tending to show that the defendant was sworn as a witness in the case.

There was evidence tending to show that defendant was duly sworn as charged in the indictment, and there was no error in refusing the general charge for the defendant.

A witness, who has testified in chief to the good character of the defendant, maybe asked on cross examination whether or not he has heard of certain offenses, specifying them, charged against the defendant, before the beginning of the then pending prosecution. This is allowable only on cross examination, not as evidence affecting the character of the defendant, but as evidence affecting the credibility of ‘the witness testifying to good character. — Moulton v. The State, 88 Ala. 116 ; Ingram v. The State, 67 Ala. 72 ; Moore v. The State, 68 Ala. 362 ; Holmes v. The State, 88 Ala. 26 ; Thompson v. The State, 100 Ala. 70 ; Lowery v. The State, 98 Ala. 45.

The indictment in form strictly conforms to that given in the Code, to the statute, and to the requirements of the law as held in many cases. — Or. Code, p. 275, § 3908; Jones v. The State, 100 Ala. 35; Walker v. The State, 96 Ala. 53; Barnett v. The State, 89 Ala. 165; Hicks v. The State, 86 Ala. 30 ; Williams v. The State, 68 Ala. 551.

The indictment charges as matters falsely sworn to, “that he, Sam Smith, saw John Smith buy a ticket at Anniston for Birmingham on said train; that he, Sam Smith, got on said train at Anniston, and sat in the same car with John Smith, and a little in front of him ; that after leaving Irondale, the conductor went to said John Smith and demanded his fare to Birmingham;” and other substantive averments are made in the indictment, but this enumeration is sufficient for the purpose of considering the exceptions to portions of the general charge given by the court, and the refusal of the court to instruct the jury as requested by the defendant. The proposition involved in the exceptions is this, whether before the State could demand a conviction it was necessary to satisfy the jury beyond a reasonable doubt, that defendant committed perjury as to each and every averment of the matter alleged to be material and falsely sworn to, or whether upon proof that the defendant was guilty as to one or more of such averments, the jury should convict, although, as to the other averments, the State may have failed in its proof. The court held that the latter was the correct rule, and in effect instructed the jury, if they found that the defendant was guilty of perjury in swearing that he saw John Smith buy a ticket at Anniston for Birmingham as laid in the indictment, it was their duty to convict him, although there might be material matters charged in the indictment, as to which the jury might be satisfied that defendant had sworn truly. We are of opinion that the court ruled correctly on this proposition.

In 2 Wharton Or. Law, § 1301, the law is stated thus : “All the several particulars, in which the prisoner swore falsely, may be embraced in one count, and proof of the falsity of any one will sustain the count." In Bishop’s Criminal Procedure the rule is thus stated: “When there are several assignments of perjury, proof of any sufficient one will sustain the count." The text is supported by the following authorities, which are precisely in point: State v. Bishop, 1 D. Chipman’s Rep. (Vt.) 120; Com. v. Johns, 6 Gray (72 Mass.) 274; State v. Hascall, 6 N. H. 352.

In the case of Harris v. The People, 64 New York 148, it was charged that the defendant falsely swore that at the time of the fire there was upon the premises ‘ ‘ a stock consisting of 60,000cigars, 185,000 cigarettes, 400 lbs. weight of Havana tobacco and 640 lbs. of Virginia tobacco." It was claimed on the trial that there was a variance in the number of cigars proven, and as averred. The court used this language : “The variance was to one of a number of distinct items as to which Harris was charged with swearing falsely, and if the jury had found that he swore falsely as to the other items, or as to any one of them a verdict of guilty would have been proper. When an indictment charges that the prisoner has stolen a number of articles * * * * * * or has obtained goods by a number of false pretenses, or has sworn falsely in an affidavit as to several facts, it is not necessary to prove all that is charged. It is sufficient to prove enough to make out the offense charged." The principie is recognized in the opinion in the case of Williams v. The State, 68 Ala., supra. Our conclusion is that where the indictment charges several distinct assignments of perjury, proof of either material assignment will authorize a conviction.

• Construing the charge given by the court, ex mero moiu, as a whole, we think it defines the law correctly as to what constitutes perjury. We find no error in the instructions given to the jury, to guide them in weighing the evidence of the witnesses, and in framing their own conclusions.

Charges twenty-two and twenty-three, requested by the defendant, are objectionable in. that they invade the province of the jury, and are argumentative and misleading. The other charges requested assert propositions of law inconsistent with those declared in this opinion.

There is no error in the record.

Affirmed.