Woods v. State , 82 Tenn. 460 ( 1884 )

Freeman, J.,

delivered the opinion of the court.

This is an indictment for perjury, of which the defendant stands convicted by a jury.

The question of the sufficiency of the indictment is presented as the primary one in the case, for if' the indictment does not charge the offense, then the conviction cannot stand.

The substantial allegations of the indictment are: “that on July 11, 1882, at a regular term of the circuit court for Lincoln county, the defendant was brought before the grand jury then assembled, duly sworn, and charged to enquire, etc., and after said Woods was duly and legally brought before said grand jury as a witness, he was duly sworn, and took his oath with uplifted hand, etc., solemnly swearing that he would true answer make to all such questions as might be put to him by said grand jury, and that the evidence he would give should be the truth, the whole truth, and nothing but the truth, the said oath being administered by W. A. Patton, the foreman of .said grand jury, who then had sufficient, lawful and competent authority to administer said oath, and being so sworn, the grand jury did enquire of said "Woods whether or not he had seen any gaming, or betting at cards for money or any other valuable thing, at any time within six months next preceding the time the grand jury made said inquiry, and then and there being asked by said grand jury, whether or not he had seen any person or persons, within the last six months, playing- for money or other valuable thing in the dwelling-house of Cal: Dobbins, in Fayette-ville. It! is then averred that it then and there be-came and was a material question whether gaming and betting at cards by any person or persons at the dwelling-house of said Cal. Dobbins, in Fayetteville, Lincoln county, for money or other valuable thing, within six months previous to that time, had taken place, and whether Woods had seen such betting.

It is then alleged said Woods, upon said examination, falsely, corruptly, etc., did depose" and say, among other things, that he had not seen any betting •or hazarding of money or other valuable thing, within .six months, etc., and assigning perjury in proper form, with inuendoes, upon the falsity of his answer given •to said question.

It is insisted this indictment is defective in failing to aver that “there was any issue, matter of controversy, or enquiry pending before said grand jury, of which it had jurisdiction, and in relation to which the testimony alleged to have been delivered was material, and in regard to which he was sworn.

By sections 5958, 5959, new Code, it is provided: “In an indictment for perjury, or subornation of perjury, it is not necessary to set forth the pleadings, records or proceedings with which the oath is connected, nor the commission or authority of the court or person before whom the perjury was committed.”

It is sufficient in such case -to give the substance of the controversy or matter in respect to which the offense was committed, and in what court, or before whom the oath alleged to be false - was taken, and that the court or 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. If the above indictment fails to comply with these requirements, it is invalid. Let us see: It charges the witness was regularly brought before the grand jury, engaged in inquiring for violations of law in Lincoln county; that he was sworn by the foreman of the grand jury, and that in the inquiry there being made he had authority to administer said oath, and that the grand jury put to said party being so sworn the question whether he had seen gaming in the house oí Cal. Dobbins, in Fayetteville, Lincoln county, within six months preceding the inquiry, and that this question was a material one, that is, •whether any gaming or betting had taken place at that house, and that the grand jury, as they were sworn and charged to do, did enquire whether he had seen such gamiug, within the period mentioned, at the place referred to.

Here is the authority of the party administering the oath, the court in which it was done, and the matter of the testimony given, and its falsity averred, and the matter of inquiry, to-wit, gaming in the last six months, with place designated.

. The only question is, is the substance of the controversy or. matter in respect to which the offense-was committed, charged in this indictment?

By the nature of the inquiry there was no controversy or suit pending, so that no such matter could be averred, or if averred, it would have been untrue, as it was only an inquiry under the inquisitorial power of the grand jury, to develop the grounds on which a presentment should be found. But there was a “matter” in respect to which the offense was committed, and that is definitely charged, that is, the matter of “an inquiry by the grand jury whether any gaming had been had in the house of Cal. Dobbins within six months preceding the inquiry.” This inquiry the grand jury were authoi’ized and bound by law to make. Section 5912, new Code, is: “The grand jury shall send for witnesses whenever they, or any of them, suspect a violation of the laws against gaming,” and then, in sub-sections, are added twenty-three other cases in which they may do the same thing. It is also provided: .“the inquiry in gaming cases shall be confined to specified times or places.” No averment of what the law is can be required, only a statement of such facts as make the offense charged. The court takes cognizance of the law.

The grand jury had authority to send for the witness on any of them suspecting a violation of the gaming laws, as well as the other cases specified. This by the nature of the case is not a specific inquiry as to any particular person being guilty, but if the fact of the law having been violated is suspected, not known, then they send' for the witness, and inquire, and that inquiry, by section 5913, is confined to specified times and places, not to individuals, or any charge against a particular person; it is only as to times and places and the offense.

It does clearly appear in this indictment that the grand jury were making this precise inquiry, and this was the matter in respect to which the perjury was committed. The very question put is such an .inquiry, and precisely within the terms of the statute. It is plainly averred, and we have to shut our eyes to the meaning of language if we do not see and understand from this indictment that the witness was sworn to answer truly all questions put to him, and matter of the inquiry about which he was being interrogated was “suspected violations of the laws against gaining.” This is averred with unnecessary prolixity and circumlocution, but that it is averred distinctly, cannot be in doubt, as we think.

This being the plain and natural meaning of the language, courts in this enlightened age ought not to be asked to put on judicial spectacles in order to darken or distort the meaning of language. The day for all this is past.

But it is said the defect is that there is no averment of any issue or controversy or inquiry pending before said grand jury. There could be no issue or controversy in such an inquiry, as we have said, because it is merely to ascertain whether a suspicion can be verified. ' But there is a legal matter of inquiry, and that is so clearly stated as not to be misunderstood, and that inquiry was whether there had been a violation of the laws against gaming within six months preceding, and the place was specified, as required by the statute. Would it enlighten either the court or the defendant in the least if you should add to what is averred that the grand jury were then engaged in inquiring for violations of the gaming laws within six months preceding in the house of Cal. Dobbins? The facts charged state this to have been what they were doing; to require it to be designated by saying it was such an inquiry, seems to us a work of supererogation; as we have said, there was no controversy or issue, and could not be in the nature-of the case — only an inquiry. If we must have such an averment, then we require an averment of that which can never exist in such a case, and so practically no man could be truthfully indicted for swearing falsely on such an inquiry.

The Constitution has fairly indicated what are the essential requisites of a criminal charge when it provides “the accused shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof.” The clear implication is that such paper shall furnish him a statement of the nature and cause of the accusation. That this indictment does that so clearly that no one could be misled as to what the charge is, we hardly think can be questioned. It would puzzle the ingenuity of any one, as it seems to us, to make it appear plainer than it does appear, that the grand jury of Lincoln county were inquiring whether there had been unlawful gaming in the house of Cal. Dobbins, in Fayette-ville, within six months before the’ inquiry, and they swore the defendant to answer sneh questions as might be put to him on this inquiry, and he answered he knew nothing of such unlawful gaming, and that was corruptly false, and so he was guilty of perjury by such swearing.

The cases cited, 3 Heis., 32, 7 Cold., 342, only require if the oath was taken in a judicial proceeding, it must be so described as to show the court had jurisdiction, or the oath administered by one authorized so to do; all this appears here. The case of Wise v. State, 3 Lea, 39, was where the indictment averred that a certain lawsuit or trial, in which the State was plaintiff and Gibson defendant, was pending in the circuit court, and the. witness sworn in said cause; and the case of Lawson, 3 Lea, 309, was for perjury committed in testifying before the grand jury, and it was averred that it was a material inquiry before the grand jury whether any one had been guilty of selling whisky, etc. In the first case it was proper to state the suit pending, but how this can require such a controversy to be charged, when no suit is pending, is not seen.

But the indictment in the Lawson case, which was ■sustained by this court, is far less specific than the present one. “The indictment,” says Chief Justice Leaderick, delivering the ■ opinion of the court, “set ■out the oath taken before the grand jury, and testimony given, and proceeds to negative the testimony in the following language, and which said swearing was material to the point under investigation by the grand jury, and was knowingly, maliciously, feloniously, •deliberately, absolutely and corruptly false, and the .■said Lawson then and there well knew the same to be so - false in point of fact when he deposed to it.”

This was held good. If this case is correctly ruled, then the present indictment is good beyond question. We have no doubt of its correctness. The Chief Justice gives what is substance in an indictment, substantially what is given in the Code, and adds: “We think this has all been done in ordinary •and concise language, and as explicitly and intelligibly expresses a charge of perjury as the most prolix .and technical common law indictment could do.”

So we think of the present indictment, and doubt whether the real facts of the case can be expressed so as more definitely to inform the defendant of the nature and cause of the accusation against him. This ■being done, he can never be prejudiced on a fair •trial, if he is innocent. If guilty, then courts at this day have no call to shield him from punishment -by insisting on merely technical verbiage, the effect of which is that a criminal shall go unwhipt of justice, or the State be delayed and burdened with costs,, where no end of justice will' be subserved. The innocent should be vindicated, but the guilty punished, and that with certainty, is the "true principle in the administration of the criminal law.

The judgment is however reversed for the reason the proof of what was sworn by the witness does not correspond to the allegation of the matter deposed, by the witness, as found in the indictment.

Reverse and' remand.