Sloan v. State , 71 Miss. 459 ( 1893 )

Cooper, J.,

delivered the opinion of the court.

This prosecution is against a small negro hoy — almost a child — for the grave crime of perjury. We confess our'gratification in finding the conviction not supported by the evidence. It is difficult to conceive any circumstances under which the question whether appellant was a witness before the justice of the peace could become material in the investigation made by the grand jury, in the course of which the perjury charged is alleged to have been committed. But the indictment charged that this was a material fact, and this averment in the indictment was probably sufficient. Bishop on Grim. Proc., § 921. But this allegation required proof, and none was made on the trial. Bishop on Grim. Proc., § 935, and authorities there collected. No conviction could have been sustained of perjury as to that matter, and the court should so have instructed the jury.

The evidence is not sufficient to show that appellant was in fact sworn before the grand jury. This was a material ingredient of the offense, and should have been established as any other fact in the case. No witness testified positively that he was sworn. The only evidence is that it was the custom of the grand jury to swear all witnesses appearing before it. The presumption that this was done as to appellant is met and put at rest by the presumption of his innocence. Both presumptions are general in character, and guilt cannot be established by the mere presumption of discharge of its official duty by the grand jury in this respect.

Judgment reversed.