McNiece v. State

Smith, J.,

delivered the opinion of the court.

On the trial of one Nancy Tigue in the court of the mayor of the city of Meridian for the unlawful sale of intoxicating liquor, appellant, a witness for the prosecution, testified that he had not purchased any such liquor from Nancy. Afterwards he was indicted for perjury, alleged to have been committed in so testifying.

On the trial there was evidence on’ the part of the state that appellant had purchased whisky from Nancy, and on the part of appellant there was evidence in denial thereof. Appellant offered to prove by the mayor of Meridian, before whom Nancy Tigue was tried, that after two witnesses had testified that they had seen her sell intoxicating liquor to appellant, she withdrew her plea of not guilty and entered a plea of guilty; that after this plea of guilty had been entered, but before sentence had been pronounced, he (.the mayor) had appellant called, sworn, and interrogated as a witness, for the purpose of having him prosecuted for perury, should he deny purchasing the liquor. This evidence, on objection by the state, was by the court excluded.

In the absence of an issue of fact between the parties to a cause, there is no occasion for the introduction of testimony, and, if introduced, it could in no way affect the rights of the parties thereto. Consequently, all evidence, in the absence of such an issue, is irrelevant and immaterial. When Nancy Tigue entered her plea of guilty to the crime for winch she was then being tried, there was no longer any issue of fact in the cause, and if appellant was not introduced as a witness until this plea had been entered, his testimony was wholly irrelevant and immaterial; and since the false swearing of a witness in a case, in order to constitute perjury, must refer to a matter material to an issue then being tried, the evidence offered by appellant should not have been excluded.

The judgment of the court below is reversed, and the cause remanded. Reversed and remanded.