Bradford v. State , 134 Ala. 141 ( 1901 )

■TYSON, J.

The indictment is in the Code form except in the averment designating the character of the proceeding in which the oath ivas taken. — Form 67, page 333 of Crim. Code. And as to the proceeding Avith which the false oath is connected, it is sufficient to state its substance. — Crim. Code, § 5199. The averment in the indictment in respect of the matter of proceeding in which the alleged false oath is connected is as follows: “On the trial of the said Jim Bradford in the county court of St. Clair county under a prosecution upon a charge of failing or refusing to work on the public road after legal notice,” etc. The point taken is there is no such offense known “as failing or refusing to Avork on the public road after legal notice,” and that a, prosecution and trial founded upon an affidavit designating a.n offense in this language, Avould be void and therefore an indictment for perjury predicated upon the testimony given in such a proceeding cannot be.sustained for the reason that the oath- administered to defendant as a Avitness on that trial Ayas unauthorized by law. The point would undoubtedly be well taken if the affidavit upon Avhich the case was tried by the county court alleged no offense. — Collins v. The State, 78 Ala. 433. But the language quoted above did sufficiently designate and, therefore, sufficiently charge an. offense. — § 5392 of Crim. Code; Brown v. The State, 63 Ala. 97; Brown v. The State, 109 Ala. 86; Spear v. The State, 120 Ala. 351; Adams v. Coe, 123 Ala. 664; Williams v. The State, 68 Ala. 551.

The next contention is that there was a variance between the allegations of the indictment as to the proceedings in the county court and the evidence offered upon the trial. This contention is based upon two considerations. The first of these is that the indictment charges that Jim Bradford on his examination as a witness, etc., on the trial of said Jim Bradford, in the county court, etc., falsely swore, etc., whereas the affidavit upon Avhich the trial was had in the county court shows that James Bradford Avas the name of the party on trial. The evidence fully identifies the defendant in this case as the person Avho Avas tried in the county court and as the same person Avho testified in his own behalf in that court. Clearly there is no variance here.

The next is, tire indictment charges that defendant as a Avitness upon the trial in the county court, “falsely swore that on a certain morning, being a time or day Avhen he had been Avarned to work the public road, he, the said Jim Bradford, was sick and unable to Avork the road or to go to the road to work; that he did not get up from bed until nine or ten o’clock and that the reason he did not get up from bed sooner and go to the road was that he was sick.” It must he conceded that the witness who testified to what Bradford swore in thé county court did not use the word sick. But he did say that Bradford swore that he Avas unable to work the road on account of suffering from an injury to his hack Avhich he received, etc., etc., which hurt confined him to his house the day preceding he was to work on the road and to his bed until between nine and ten o’clock on the morning of the day he was to work. Again Ave must hold there was no variance here; nor a failure to prove the material assignment of perjury alleged in the indictment that defendant was sick, etc. The inference was clearly afforded by the evidence for the jury to conclude that he sworé he was sick as alleged in the indictment. The State was not bound to prove what the defendant swore orally as a witness in the county court ipsissimis verbis; it tras sufficient to prove substantially what he said. — Taylor v. The State, 48 Ala. 157. Furthermore, the State was not bound to prove every assignment of perjury laid in the indictment. Proof of any one or more of them is sufficient. Smith v. The State, 103 Ala. 57.

The admission of the testimony of Mrs. McCormack was clearly proper as tending to show the falsity of defendant’s testimony in the county court.

Since there was evidence tending to support every material averment of the indictment, the affirmative charge requested by defendant ivas correctly refused.

What we have said disposes of all the errors insisted upon by counsel. We have, however, examined the other matters to which exceptions were reserved and find no error in the rulings of the court.

Affirmed.