Barnett v. State

• Citation: 7 So. 414,89 Ala. 165
• Parties: BARNETT v. STATE.
• Decision Date: 09 April 1890
• Court: Supreme Court of Alabama

7 So. 414

89 Ala. 165

BARNETT v. STATE.

Supreme Court of Alabama

April 9, 1890

Appeal from city court of Montgomery; THOMAS M. ARRINGTON, Judge.

The defendant, Ben Barnett, was indicted, tried, and convicted for perjury. The indictment was in the following words "The grand jury charge *** that Ben Barnett, on his examination as a witness before the grand jury of said county, at the February term, 1889, of the city court of Montgomery, duly sworn to testify by Tennent Lomax, solicitor for the county of Montgomery, who had authority to administer such oath, in a case before said grand jury of the state of Alabama against Berry Johnson, for the criminal offense of obtaining the signature of said Ben Barnett by false pretenses, falsely swore that said Berry Johnson obtained his (said Barnett's) signature to a certain bill of sale of two yearlings belonging to said Ben Barnett, by stating to said Barnett that he was signing as a witness to another bill of sale from some person, unknown to said grand jury, to said Berry Johnson, and that he knew nothing of having made a bill of sale of said yearlings to said Johnson; the matter so sworn to being material, and the testimony of said Ben Barnett in relation thereto being willfully and corruptly false, against the peace," etc.

The defendant demurred to this indictment on the following grounds: "(1) Because the indictment fails to state the substance of the proceedings with which the alleged false oath was connected. (2) Because said indictment shows that the testimony alleged to be false was given in a case before the grand jury where no offense was charged. (3) Because said indictment shows that the oath under which the alleged perjury was committed was an extrajudicial oath. (4) Because said indictment does not follow the form prescribed in the Code. (5) Because said indictment fails to show whether the alleged perjury was committed on a trial for a felony or on other proceedings." The court overruled these demurrers and the defendant thereupon excepted.

On the trial of the case, the state introduced Tennent Lomax as a witness, and he testified that he was solicitor for Montgomery county; that at the February term, 1889, of the city court of Montgomery, he administered an oath to the defendant, as a witness, in a case then being investigated before said grand jury against Berry Johnson, for obtaining the signature of said defendant to a bill of sale by false pretenses. The defendant objected to the introduction of this testimony, on the ground that it was shown that the bill of sale was not produced, or its absence accounted for, before the grand jury, at the time the defendant was examined before said grand jury. The court overruled the objection of the defendant to the introduction of this testimony, and the defendant thereupon excepted. On further examination, the said witness Lomax testified substantially to the facts as alleged in the indictment. The defendant moved to exclude all the testimony of this witness, on the ground that it was not shown that the grand jury had jurisdiction to inquire into said offense. The court overruled his motion, and defendant excepted. The defendant objected, and reserved an exception to the question asked the witness, as shown by the opinion. The defendant undertook to justify his testimony before the grand jury on the advice of counsel, offering to prove that after his attorney had heard the testimony in reference to obtaining his signature to said bill of sale, as produced on a trial before a magistrate, he advised the defendant to prosecute said Johnson. The court refused to allow this testimony to be offered, and the defendant thereupon duly excepted.

Moore & Finley, for appellant.

W. L. Martin, Atty. Gen., for the State.

McCLELLAN J.

The indictment in this case sufficiently alleges every ingredient of the crime of perjury. It states the substance of the proceeding in which the false testimony was given; the materiality of the testimony; the name of the officer by whom the oath was administered; and that he was authorized by law to administer the oath; the fact testified to on which perjury is assigned; and that the defendant's testimony in that behalf was willfully and corruptly false. The demurrer was properly overruled. Code 1876, § 4813, Code 1886, § 3908; ^[1] Hicks v. State, 86 Ala. 30, 5 South. Rep. 425; Williams v. State, 68 Ala. 551; Peterson v. State, 74 Ala. 34; Davis v. State, 79 Ala. 20.

The bill of sale about which the defendant testified before the grand jury was presumably in the hands of Johnson, who was being prosecuted for having, by undue means, obtained Barnett's signature to it. It would scarcely be reasonable to require the prosecution to inform Johnson that the paper was needed before the grand jury in order to get an indictment against him, and to require him to produce it, or to expect that he would produce it, for such a purpose. The objections to the testimony of Mr. Lomax, the solicitor, as to what occurred before the grand jury in reference to the paper, on the grounds that it was not produced or its loss accounted for, and that the witness had never seen it, were patently without merit.

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