McCord v. State , 83 Ga. 521 ( 1889 )

Bleckley, Chief Justice.

McCord was found guilty of perjury, and moved for a new trial, which was refused. The imputed perjury was committed by him (if at all) when testifying as a. witness in behalf of Eddleman on Eddleman’s trial for-the murder of Gresham. The alleged false matter testified to was, substantially, that he (McCord) was in ascertain alley, and saw a large man (Gresham) striking-with a knife at Eddleman, Eddleman backing and. Gresham advancing; and that the former shot the latter-when they were only a few feet apart. The homicide' took place in May, and Eddleman was tried in October following. On the trial of McCord, the State, after proving that he had testified as alleged, and after adducing evidence tending to show that his testimony was false, proved by one Owens that he overheard a conversation in July or August between McCord and Heflin, in which the former said to the latter that if he got np and swore that Gresham had a knife, he would have to have better security than Hildebrand was ; to which Heflin replied that he was all right, just go ahead and it would he all right; and that McCord said, “Suppose anybody says that nobody was in the alley ?” to which Heflin answered that everything was in confusion, and nobody could tell who was in the alley.

1. The plain tendency of this, evidence was to show, either that measures were in progress at that time to bribe McCord as a witness in behalf of Eddleman, or that some agreement in the nature of bribery had already taken place. To meet this evidence, McCord offered the testimony of Langley, to the effect that in .about an hour after the homicide, he (McCord) communicated to Langley the fact that he was in the alley, s.aw the rencounter, and detailed the circumstances to Langley substantially in accordance with his testimony as delivered upon the trial of Eddleman. This testimony the court rejected. It appears from other evidence in the case that as soon' as the homicide was committed, Eddleman was taken into custody and carried to prison. There is no suggestion that any intercourse whatever took place between him and McCord prior to the conversation of the latter with Langley. Nor does it appear that there was any special relation between Eddleman and McCord calculated to induce the latter to volunteer as a false witness in his behalf. The earliest intercourse indicated anywhere in the record as taking place between McCord and Hildebrand, who it seems acted as agent for Eddleman in preparing or procuring evidence for use on his trial, was one week or about one week after the homicide. This time is fixed by McCord’s statement made to the jury on his trial. The evidence on the subject which came from Langley tends to make the period longer, to wit, two or three weeks after the homicide, Langley testifying that in about that length of time, Hildebrand inquired of him, by describing McCord, what his name was and where he could be found, which information Langley gave. him. Under these circumstances, the question is whether the court erred in refusing to allow the evidence of Owens in behalf of the State, tending to show that McCord testified under the influence of a bribe, to be answered by the testimony of Langley, tending to show that he gave the same account of the homicide within about an hour after it occurred, as that which he detailed on the trial of Eddleman.

The solution of this question will be materially aided by inquiring whether the proposed evidence would have been admissible in behalf of Eddleman on. his trial had the like attack for bribery been then made by the State upon his witness McCord, the person now accused of perjury. Formerly, in England, previous consonant statements by a witness were considered admissible in evidence to support the testimony given by him at the trial, the same as previous inconsistent statements to impeach him. Gilbert’s Ev. 150; McNally’s Ev. 378; Lutterell v. Reynal, 1 Mod. 282. This broad rule, however, was found to be radically unsound, and from the time of the case in 3 Douglas, 242 (The King v. Parker), has generally been considered as exploded. A remnant of the rule still holds its footing in the law, which remnant may be expressed as we find it in 1 Thomp. Tr. §574: “"Where the witness is charged with testifying under the influence of some motive prompting him to make a false statement, it may be shown that he made similar statements at a time when the imputed motive did not exist.” “So in contradiction of evidence tending to show that-the witness’s account of the transaction was a fabrication of a recent date, it may - be shown that he gave a similar account before its effect and operation could be foreseen.” Id. §576. The doctrine in one or both of these forms is recognized by many authorities, amongst them the following: 1 Phil. Ev. 308; 1 Starkie Ev. 221-2; Roscoe Crim. Ev. 185; 1 Greenl. Ev. §469; Taylor’s Ev. §1476; Craig v. Craig, 5 Rawle, 91; Robb v. Hackley, 23 Wend. 50; The State v. Vincent, 24 Iowa, 570; the People v. Doyell, 48 Cal. 85. Doubtless there are cases in which the doctrine has been applied as well as recognized, but we have not felt called upon to make an exhaustive search for such cases, as we consider its inherent soundness, together with its recognition by the standard text-writers, as sufficient. We can entertain no doubt that had Owens testified on the trial of Eddleman as he did on that of McCord, the fact that McCord told Langley that he witnessed the homicide, and that the circumstances were as he detailed them to Langley, would have been admissible in evidence for the purpose of repelling or in some degree weakening the imputation of bribery cast upon McCord by the Owens evidence. As was said by Reade, J., in The State v. Parish, 79 N. C. 610, “The fact that supporting a witness who testifies does incidentally support the facts to which he testifies, does not alter the case. That is incidental. He is supported, not by putting a prop under him, but by removing a burden from him, if any has been put upon him. How far proving consistent statements will do that must depend upon the circumstances of the case. It may amount to much, or very little.”

Hoes it follow because this evidence would have been admissible on Eddleman’s trial in answer to a charge of bribery, that it was admissible on McCord’s trial in answer to the like charge ? We think it does. If Eddleman would have been entitled to remove a burden from his witness by showing previous consistent statements made directly after the occurrence to which they related, McCord should be allowed to cast off or lighten the same burden by the same means. Any evidence which would tend to show in behalf of Eddleman that McCord did not testify as he did under an interested motive, would have the same tendency in behalf of McCord himself; and so we think the court erred in excluding this evidence, the same being admissible, not for the purpose of showing directly that his testimony on the trial of Eddleman was true, but for the purpose of showing that he did not have the motive of bribery to induce him to invent it, as might be- inferred from the testimony of Owens were it left wholly unanswered.

2. On a trial for perjury, it may be a material fact in favor of or against the accused as to when and how he first became known as a witness in the case; and the evidence on the subject of the materiality of such fact, in the light of all the circumstances, would be a question for the jury, and it would be improper for the court to charge that they could not consider it as weighing anything in behalf of the defendant, especially if no like injunction was imposed against weighing it in behalf of the State. We consider the charge as set out in the 8th ground of the motion for a new trial as objectionable, for if the topic was one to instruct the jury upon at all, as the evidence then stood, the jury should not have been excluded from considering it in the defendant’s favor, and at the same time left free to consider it, as well as all other facts, against him.

3. The exclusion of the evidence of Judge Dorsey (one 'of the counsel for Eddleman) to the effect that in an interview of the counsel with McCord, which took place in June preceding the trial of Eddleman, McCord’s statement made then coincided with what he testified on the trial, was not error; for the reason that the question to Dorsey expressly excluded any disclosure as to what McCord did say, but simply referred to Dorsey the decision of coincidence between what was said then and what was testified to by McCord upon Eddleman’s trial. If this coincidence was a matter for decision at all, the reference should have been to the jury, and not to the witness. Whether McCord’s statement to the counsel on that occasion, if detailed in full, would be admissible evidence under the rule announced in the first head of this opinion, we need not now consider, as no such question is made in the record. ,

4. Evidence that Eddleman had not paid in full the fees of his counsel, and that his means were limited, or that he was insolvent, was not admissible to repel the imputation of bribery which Owens’ testimony tended to cast upon McCord. Unless it could be known how much it would take to bribe McCord, whether the means of Eddleman for that purpose would be sufficient or not, could have no relevancy. Moreover, the aid of friends might have supplied the means in whole or in part.

5. It was not prejudicial to the accused for the court to single out the main element in the assignment of perjury, and stress that as" the material matter in the assignment. This was to narrow the basis for a conviction and not to widen it. It was therefore favorable to the accused, instead of being prejudicial.

6. There was no evidence of want of sanity by the accused, and consequently the charge complained of in the 12th ground of the motion on that subject seems to us misleading. If meant to intimate that knowledge by McCord of the falsity of his testimony on the trial of Eddleman would have to be negatived, if at all, by proof that he was of unsound mind, the charge would be grossly erroneous, for soundness of mind relates to capacity for knowledge, not directly to knowledge itself. One may have full capacity to know a fact, and still be mistaken as to the existence of the fact. The jury, in considering whether the alleged perjury was knowingly committed, would not be restricted to the capacity of McCord for acquiring knowledge, but should take into consideration all the circumstances tending to show either that he was or was not mistaken. Code, §4293. Insanity is not the sole test of mistake, and we do not suppose that the court intended to announce it as such, but the charge set out in the ground referred to seems to us susceptible of that construction. We have read it in connection with the whole charge of the court, and do not find it cleared up anywhere in the context.

However, if McCord’s testimony on the trial of Eddleman was false, there is scarcely a glimpse in the evidence of any reason for thinking he did not know it was false, so this part of the charge was probably harmless.

7. The charge in the 11th ground of the motion touching the prisoner’s statement is correct in substance. There is no reason why the judge should not inform the jury that he is bound by law to instruct them on that subject. The duty is virtually imposed by statute, and it is well enough for the jury to know that it is a statutory right of the prisoner to have it performed. Code, §4637. Instead of its being less impressive, it ought to be more so on that account.

8. Several parts of the charge are complained of as confused and argumentative. None of them are argumentative, but some are more or less confused. We find inaccuracies of expression in those parts set out in the 3d, 4th, 9th, 10th and 12th grounds of the motion for new trial. Some of these inaccuracies may be due to erroneous copying by the clerk in making up the transcript. It is evident that the clerical work in preparing the transcript was very carelessly and imperfectly done.

9. The request to charge set out in the 16th ground of the motion was rightly refused, for it did make a difference in point of fact whether Gresham really had a knife or not, and for other reasons which need not be specified. The court erred in not granting a new trial.

Judgment reversed.