Commonwealth v. Still , 83 Ky. 275 ( 1885 )

JUDGE LEWIS

DELIVERED THE OPINION OF THE COURT.

The Commonwealth appeals from the judgment of the lower court sustaining a demurrer to the following indictment:

“The grand jurors of the county of Ballard accuse Thos. H. Still of the crime of false swearing, committed in manner and form, as follows : The said Still did, on the ninth day of October, 1883, before the finding of this indictment, in the county aforesaid, on-‘his examination, as-a witness, after being duly sworn to testify the truth on the trial of a cause of the ■Commonwealth of Kentucky, plaintiff, and T. P. •Clark, defendant, then pending by indictment con■cerning the violation of. the tavern bond of said ■Clark, which court had authority to administer said •oaths, and after which the said Still did falsely and •corruptly testify that he did not, between the twentieth day of June, 1881, and the twenty-second day of April, 1882, see a game or games of cards played in the tavern-house, or in the saloon of the said •Clark, in which game or games of cards so played money nor property of value was bet, won nor lost, when T. P. Clark was present, or had any knowledge or information of the same so far as he, Still, • knew. Nor did he testify before the grand jury of this county, when R. W. Shelbourne was foreman of the same, that he, Still, saw a game of poker played in Clarks hotel, at Wickliffe, when T. P. Clark, proprietor of the house, was engaged in the .game upstairs in said building, where money or property was bet, won or lost, or when Clark was present. .All which statements were false and known to be by ••said Still to be false at the time, and was willfully .and corruptly made and testified to, said Ballard Circuit Court having jurisdiction and authority to ■examine into said charge against T. P. Clark,” etc.

The Criminal Code requires an indictment in every •case to be direct and certain as regards the party ■charged, the offense charged, the county in which the offense is committed, and the particular circumstances of the offense charged, if they be necessary to constitute a complete offense. (Section 124.) And in section 134 it is provided, that “in an indictment for perjury or subornation of perjury, it is sufficient to set forth the substance of the controversy or matter in respect to which the offense was committed,, and in what court and before whom the oath alleged to be false was taken, and that the court or the person before whom it was taken had authority to administer it, with proper allegations of the falsity of the matter on which the perjury is assigned,” etc.

In an indictment, however, for false swearing, it is. sufficient to charge that the accused willfully and knowingly swore, deposed or gave in evidence that, which was false in a matter which was judicially pending, or on a subject in which he could be legally-sworn, or on which he was required to be sworn. Nevertheless, proper allegations of the falsity of the matter on which the false swearing is assigned are as necessary to be made as are required in an indictment for perjury. In each case the indictment should be direct and certain as to the falsity of the-oath taken, which, in both cases, must be knowingly and willfully made.

It is a settled rule in criminal pleading 'that an indictment for perjury must negative by special averment the matter alleged to have been sworn to by the accused. (Archbold’s Criminal Practice and Pleading, volume 2, page 965.) And we see no reason why the same rule should not be applied as a. test of the sufficiency of an indictment for false swearing. For in each case the issue is, whether the accused has, on the matter about which he could be legally sworn, willfully and knowingly sworn falsely. According to that rule, we think the indictment is defective.

It is sufficiently stated that the oath was taken before a court authorized to administer it, and on a .subject in which the accused could be sworn; but instead of negativing each or any of the statements ■of the accused as a witness by special averments, :a general and sweeping charge is made in the indictment that they were all false and known to be false by him.

It should have been specially averred, if it could truthfully, that the accused did see the game of cards played at the time and place mentioned, that money or property was then and there bet and won ■or lost, and that the accused did know Clark had knowledge or information of the game.

As to the attempted charge that the accused testified falsely before the grand jury, it is impossible to say, if the indictment is construed according to rules of grammar, whether the statement that the ¡accused did not testify to the facts mentioned is to be considered as made on oath by him, or as a declaration or assertion in behalf of the Commonwealth. But waiving this objection, there is no .averment that he did testify before the grand jury ,at any time or about any matter.

For the reasons indicated, we think the indictment is fatally defective, and the judgment sustaining the «demurrer to it is affirmed.