Pressley v. State , 18 Ala. App. 40 ( 1921 )

BRICKEN, P. J.

The defendant was indicted, tried, and convicted for the offense of perjury, under section 7545, of the Code 1907, and was sentenced for a period of not less than two nor more than three years in the penitentiary.

In order to sustain a prosecution for perjury, under the laws of this state, it must be shown, by the usual measure of proof, that is to say, beyond a reasonable doubt, that the matter falsely sworn to is material to the issue or question in controversy, and' no conviction can be based upon irrelevant or immaterial testimony, however false such testimony may be. Code 1907, §§ 7541, 7543.

The bill of exceptions recites that—

“After the court overruled defendant’s demurrer to the indictment, the defendant pleaded! not guilty,” etc.

Notwithstanding this statement, we find no demurrers in the record, and the minute entry makes no mention of any ruling by the court on demurrer. However, we have examined the indictment, and find no defect therein; it appearing that it follows the form prescribed in the Code, and is therefore sufficient. Code 1907, §§ 7546, 7161 (form 62).

The alleged perjury complained of as having been committed by defendant was upon his examination as a witness on the trial of one Walter Holmes, who was charged with the offense of assault and battery on one Aubrey Oden, the said trial being in the circuit court of Cullman county.

There appears in the indictment three separate and distinct statements alleged to have been sworn to by the defendant on said trial, and it is averred that his testimony in relation to those matters was willfully and corruptly false. The statements are as follows;

“(1) That he did not arrest and detain said Aubrey Oden; (2) that he did not represent himself to be named Mathews and High Sheriff; (3) that said Walter Holmes did not take hold of the said Aubrey Oden.”

[1] On the trial of the perjury case the court, over the objection of the defendant,, permitted the state to prove the testimony of the appellant in the Walter Holmes case,, upon which the charge of perjury was based,, by the oral examination of two witnesses-who were present at said trial, and heard said testimony. It is insisted by the appellant that this was error, for the reason that the circuit court had an official court reporter, and that the case was reported by him ¡as provided by law (Acts 1915, p. 859), and that under the provisions of this act the original notes so taken shall be treated as a part of the record of the court, and that, being a part of the record, they were . the best evidence as to what the witness swore on said trial, and that secondary evidence could not be offered without first accounting for the loss of the record, the best evidence. Appellant’s counsel cite no authority on this proposition; but it appears upon examination that the case of Todd v. State, 13 Ala. App. 301, 69 South. 325, holds in line with this contention. Upon further examination however, we find a later expression of this court in the case of Harper v. State, 16 Ala. App. 538, 79 South. 632, under the authority of which we are constrained to hold that there was no error in this ruling of the court. In the Harper Case, supra, we find the following expressions:

“The contents of the stenographic report of the testimony, when transcribed and duly authenticated, is prima facie evidence of the testimony given, but it is not conclusive, and does not preclude the parties from offering any other competent proof of the facts testified to by the defendant on the occasion under investigation. * * * If there are expressions in Todd v. State, 13 Ala. App. 301, 69 South. 325, that could be construed as holding otherwise, that rule there stated is modified.”

See, also, Roman v. Lentz, 177 Ala. 64, 58 South. 438.

Numerous other exceptions were reserved during the trial of this case to the rulings of the court upon the evidence, upon several separate motions to exclude the evidence, also as to a certain portion of the oral charge; and the refusal of two written charges requested by defendant is also insisted upon as error. These contentions, however, when stated concretely, are that the statements alleged in the indictment as having been made by defendant and numbered above (1) and (2) were wholly immaterial in the trial of the Holmes case, for assault and battery, and therefore not the subject of perjury; ' and, further, that alleged statement numbered (3) above, to wit, “that said Walter Holmes did not take hold of the said Aubrey Oden,” was testified to only and solely by the one witness Aubrey Oden, the injured party, and that this testimony is absolutely without corroboration by any other witness, or by any facts adduced upon the trial of the perjury case, and that therefore this prosecution cannot be sustained. All these questions were raised in every conceivable manner, and are properly presented here for review.' However we shall not undertake to deal separately with each specific exception, as it would serve no good purpose to do so. ,

[2] As before stated, in order to sustain a prosecution for perjury, it must be shown that the matter falsely sworn to is material to the issue or question in controversy. The question is therefore presented: Were statements (1) and (2), above set out, material in the original trial of Walter Holmes for assault and battery upon the said Aubrey Oden? Ordinarily the sole and only issue ■involved in a criminal prosecution of this character is, Did the defendant named commit an assault or an assault and battery upon the alleged injured party as named, comprehending, of course, the venue as tó time and place as charged? A battery has been defined to be “the least touching of another person willfully or in anger,” for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it in even the slightest manner. Another definition is: The touching of another in an angry, revengeful, rude, insolent, or hostile manner. Every battery includes an assault.

[3] In the trial of the assault and battery case it was permissible to prove, as a part of the res gestae, not only the main facts constituting the corpus delicti, but also the circumstances and facts immediately attending the commission of the alleged offense. The general rule is, however, by innumerable decisions of the Supreme Court and of this court, that facts and circumstances, which, when proved, are incapable of affording any reasonable presumption or inference in regard to the material fact or inquiry involved, are not admissible in evidence. And this familiar rule, which requires that evidence must be confined to the point in issue, applies as well to criminal as to civil cases. In fact in criminal proceedings the necessity of strictly enforcing this rule is even stronger than in civil cases; for where a defendant is charged with an offense, it is of utmost importance to him that the facts laid before the jury should consist exclusively of the transaction which forms the subject of the indictment or affidavit, which alone he can be expected’ to come prepared to answer. 2 Russell on- Crimes, 272.

Keeping in view, therefore, the fact that in the Holmes Case the corpus delicti consisted solely in the assault or.assault and battery upon the said Oden, it would not appear that statements above numbered (1) and (2) were of sufficient materiality upon which to predicate a charge of perjury, and that the only statement contained in the indictment which was of sufficient materiality as would justify or support a conviction for perjury is statement numbered (3), to wit, “that said Walter Holmes did not take hold of the said Aubrey Oden.” And as to this statement it clearly appears from the record that it was established by the evidence of one witness only, Aubrey Oden, and that his testimony in this respect was without any corroboration on the part of any other witness, nor were there any corroborating circumstances shown upon the trial of this cause.

[4] It has been many times held that one charged with perjury cannot be convicted on the evidence of one witness without strong corroborating circumstances. In other words, in order to obtain a conviction for this offense, it was necessary to convince the jury, by that measure of proof always required in criminal cases, that on the trial in chief, and in a matter material to the issue, the defendant had testified to that which was willfully and corruptly false. There can be no conviction on the unaided testimony of a single witness. As often stated, this would be “oath against oath.” There must be two or more witnesses, or, if only one, with strong corroboration. And “this corroboration, to be sufficient, must be of the very act, the corpus delicti, the giving of material testimony which is willfully and corruptly false.” Peterson v. State, 74 Ala. 34.

In the Peterson Case, supra, the Supreme Court (opinion by Judge Stone) said:

“There can be no conviction of the crime of perjury, on the unaided testimony of a single witness. This would be oath against oath. There must be two witnesses, or one with strong corroboration. * * * This corroboration, to be sufficient, must be of the very act, the corpus delicti, the giving of material testimony which is willfully and corruptly false. And when, as in this case, it is alleged the accused has made two sworn statements which are in irreconcilable conflict’, if, there is no strong corroboration of one of the versions, how can it be affirmed the other is false? Previous contradictory statements, made with or without oath, may be very important evidence, in connection with other circumstances, against the accused; but, no matter by how many witnesses the different and conflicting statements may be proved, this is not corroborative proof of the corpus delicti. The offense charged is the willfully false denial of knowledge of certain criminating facts against Norris and Cauthen. Corroboration should be of such a nature as would tend to prove the existence of such criminating facts, and the defendant’s knowledge of their existence.” Peterson v. State, 74 Ala. 34.

And again the court, speaking through Chief ’ Justice Brickell, in the case of Williams v. State, 68 Ala. 551, states the same principle in the following language:

“The testimony of a single witness is sufficient to prove that the defendant testified as charged in the indictment: but to authorize a conviction, the falsity of such testimony must be proved by two witnesses, or by one witness and corroborating circumstances.” Williams v. State, 68 Ala. 551.

On the trial of this case the evidence failed to disclose the materiality of the first two alleged false statements contained in the indictment ; therefore the court erred in overruling the motion to exclude same. And the testimony of Aubrey Oden as to the assault or assault and battery upon him by Walter Holmes being without corroboration of any character, the defendant was clearly entitled to the affirmative charge requested in writing, and the court erred also in refusing to give same.

The judgment is reversed and the cause remanded.

Reversed and remanded.

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