Winchester v. State , 20 Ala. App. 431 ( 1925 )

The appellant was convicted of subornation of perjury. There were two counts in the indictment, each setting up different facts.

Sections 7541 and 7543 of the Code of 1907 define perjury and subornation of perjury, and for the offense of perjury the form for an indictment is prescribed. Forms 81 and 82. Section 7542 of the Code provides that in an indictment for perjury or subornation of perjury it is sufficient to state "the substance of the proceedings, the name of the court or officer before whom the oath was taken, and that such court or officer had authority to administer it, with the necessary allegations of the falsity of the matter on which the perjury is assigned."

The first count followed substantially the language of the statute defining subornation of perjury, and adopted so much of the Code form for perjury (form 81) as was applicable and was sufficient against the demurrer interposed. Walker v. State,96 Ala. 53, 11 So. 401; Barnett v. State, 89 Ala. 165, 7 So. 414; Hicks v. State, 86 Ala. 30, 5 So. 425.

The second count was fatally defective in failing to aver the falsity of the facts sworn to on which perjury was assigned. An indictment for subornation of perjury must state all the essential elements constituting the crime of perjury as well as of subornation of perjury. It should state the substance of the proceedings in which the false testimony was given, the materiality of the testimony, the name of the officer by whom the oath was administered, and that he was authorized by law to administer the oath, the fact sworn to on which perjury is assigned, that the accused corruptly procured the witness to swear falsely, and that the testimony was willfully and corruptly false. Unless the testimony is false it is not the subject of legal perjury. Rivers v. State, 97 Ala. 72, 12 So. 434; Jacobs v. State, 61 Ala. 448; 30 Cyc. par. 8, page 1440; Goolsby v. State,17 Ala. App. 545, 86 So. 137. The demurrer to the second count should have been sustained.

The verdict of guilt returned by the jury was a general verdict, not specifying the count under which the defendant was convicted. The general rule is that where there are two counts in an indictment, one good and the other bad, a general verdict of guilty will be referred to the good count, and the judgment of conviction will not be reversed on account of the defective count. May v. State, 85 Ala. 14, 5 So. 14; Chappell v. State,52 Ala. 359; Handy v. State, 121 Ala. 13, 25 So. 1023; Farrister v. State, 18 Ala. App. 390, 92 So. 504; Norman v. State, 13 Ala. App. 337,69 So. 362. But in the cases laying down the above rule no objection was taken to the indictment.

In a trial for subornation of perjury it is error prejudicial to the substantial rights of the accused to put him to trial on a fatally defective count in an indictment to which demurrer was interposed, such count charging facts on which perjury is assigned essentially different from the facts charged in a good count.

The appeal is on the record without bill of exceptions. In the absence of a bill of exceptions the requested written charges refused to the defendant cannot be reviewed. Mack v. State,201 Ala. 269, 77 So. 683; Paitry v. State, 196 Ala. 598, 72 So. 36; Richey v. State, 16 Ala. App. 187, 76 So. 471; Franklin v. State,16 Ala. App. 192, 76 So. 476.

For the error noted, the judgment of conviction is reversed and the cause remanded.

Reversed and remanded.