HORN v. STATE

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Docket Number

No. 33667.

Attorney(S)

Earle L. Wingo and Dale Koonce, all of Hattiesburg, for appellant. We are of the firm belief that the testimony produced by the State in its effort to prove the crime of perjury was wholly insufficient as a matter of law. The indictment alleged that the appellant had willfully, unlawfully, feloniously, corruptly, and knowingly sworn that he did not know whether Mary Breland was the person who sold him the intoxicating liquor when in truth and fact the appellant well knew that Mary Breland was the person who sold the appellant the intoxicating liquor. There was a complete failure to prove that the appellant was not honestly mistaken over the question of the identification of Mary Breland and the State relied solely upon the proof that the appellant identified Mary Breland upon the first trial in July, 1937, if being the one from whom he purchased the whiskey and the testimony of the appellant upon the subsequent trial of Mary Breland that because of his defective vision, darkness of the room and the presence of several negro women at the time of the purchase of the whiskey, he was not sure whether Mary Breland was actually the person who made the sale to him. It has long been the well settled law that a corrupt intent is an essential element of the crime of perjury. 48 C.J., 908, Section 182. The defense of the appellant as shown by the testimony, which is nowhere denied in the Record, was that he was honestly mistaken on the question of identity and this too raises an issue of good faith on the part of the appellant. There was absolutely no denial of the appellant's good faith and being honestly mistaken and, therefore, it is submitted that the State wholly failed to meet the burden imposed by law. We desire to call the court's attention to the fact that the State did not request and did not receive and the appellant did not request and did not receive an instruction in any way explaining the law applicable to the crime of perjury. 48 C.J., 909, Section 184, dealing with the question of the requirement that the State should instruct the jury as to the degree of proof required in a case of perjury, we find the following: "The court should instruct the jury as to the degree of proof and the number of corroboration of witnesses required to support a conviction for perjury." Brown v. State, 57 Miss. 424, Saucier v. State, 95 Miss. 226. It is the well settled law in Mississippi that the State in a perjury case must do more than merely instruct the jury as was done in the case at bar, because it is mandatory upon the State to obtain an instruction setting forth the degree of proof and the number of corroborating witnesses required to obtain a conviction for perjury. W.D. Conn, Jr., Assistant Attorney-General, for the State. Appellant's first argument is that he was entitled to a directed verdict of not guilty because the state did not show that the change in his testimony came about as a result of corruption. We think it was a matter for the jury to determine under all the circumstances and inferences to be drawn from the evidence, whether the change in testimony resulted from an honest mistake or was corruptly done. Certainly there is a great difference in his testimony as between the two trials. Obviously, appellant could not have told the truth on both occasions. One or the other is untrue. On this record the court could not have said, as a matter of law, that this was not perjury. A reading of the cross-examination of the appellant will demonstrate that he, at his trial, was ducking and dodging from pillar to post in a desperate effort to put a good face upon his evil act. In the case at bar, the perjury was shown by three witnesses, Cubley, Cargill and French and by the stenographer who took appellant's testimony at the first trial of Mary Breland. In addition thereto, appellant admitted that he testified one way at the first trial and another way at the second trial; admitted that he had told the deputy sheriff, Cubley, prior to the second trial, that he was going to "clear" Mary Breland at her second trial; and admitted that he later stated that as a result of his change of testimony he had gotten himself into a "mess." Under such circumstances, we submit that what this court said in Gordon v. State, 158 Miss. 185, 128 So. 769 should apply.

Judges

Smith, C.J., delivered the opinion of the court.

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HORN v. STATE.

1. PERJURY.

Ordinarily, perjury must be proved by testimony of two witnesses, or of one witness and corroborating circumstances.

2. PERJURY.

Where defendant accused of perjury has made conflicting sworn statements, testimony of one witness as to falsity of statement with which defendant is charged is sufficient, as is also other evidence from which falsity of statement appears.

3. PERJURY.

A witness who testified at first trial that he purchased liquor from woman charged with sale of intoxicating liquor, and who testified at second trial that he could not swear whether the woman from whom he purchased the liquor was the woman charged with the sale, was not guilty of perjury, in absence of any evidence as to falsity of witness' statement.

Smith, C.J., delivered the opinion of the court.

The appellant was convicted of perjury and assigns two errors: (1) that the court below should have directed the jury to find him not guilty, and (2) an instruction for the state is erroneous in that it does not advise the jury that perjury must be established by the evidence of two witnesses or one witness and corroborating circumstances. The record discloses that on the trial of Mary Breland, charged with the sale of intoxicating liquor, the appellant testified for the state that he purchased such liquor from Mary. She was convicted, but obtained a new trial. About thirty days thereafter the appellant advised Mary's attorney that he was in doubt about the matter, and was not sure whether Mary was the person who sold him the liquor.

Just before Mary's case was called for trial the second time a deputy sheriff told the appellant not to leave the courtroom as the case would soon be tried, whereupon the appellant said to the deputy: "I am going to clear her this time." When he was introduced as a witness on Mary's trial, he said that "I couldn't swear whether it was Mary Breland or some other negro woman; there were several other negroes in the house." The district attorney then proceeded no further with Mary's trial, and the appellant was ordered into custody to await the action of the Grand Jury on the charge of perjury. As he was being taken to the jail, he said to a deputy sheriff: "I acted a fool, but if I ever get out of this mess, I will know how to testify after this." The evidence further discloses that Mary's residence was searched by police officers who found the appellant there, and he told them that he had bought intoxicating liquor from her. The appellant had known Mary for about four months and knew that the house was her residence. He stated on his trial for perjury that several other negro women were present, that the sale occurred at night, and the house was not then lighted.

Ordinarily perjury must be proven by the testimony of two witnesses or of one witness and corroborating circumstances. Where the accused has made conflicting sworn statements, one witness to the falsity of the statement with which he is charged is sufficient. Hemphill v. State, 71 Miss. 877, 879, 16 So. 261. According to high authority other evidence from which the falsity of the statement is made to appear is also sufficient, 2 Bishop's Criminal Procedure (4 Ed.), 931; 4 Wigmore on Evidence (2 Ed.), Section 2043. There being no evidence as to the falsity of the statement with which the appellant is charged other than his own conflicting statements made on Mary Breland's two trials, the appellant's request for a directed verdict should have been granted.

Reversed and the appellant discharged.

HORN v. STATE.

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