Brake v. Commonwealth

• Decision Date: 08 March 1927
• Citation: 218 Ky. 747
• Parties: Brake v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

218 Ky. 747

Brake v. Commonwealth.

Court of Appeals of Kentucky.

Decided March 8, 1927.

1. Perjury — Essential Facts to Establish False Swearing, Other Than Facts with Respect to False Swearing Itself, Need Only be Proved to Satisfaction of Jury Beyond a Reasonable Doubt. — While it is necessary in prosecution for crime of false swearing to establish every fact with respect to false swearing by two witnesses or by one witness and strong corroborating circumstances, other essential

facts need only be proved to satisfaction of jury beyond reasonable doubt.

2. Perjury — Instruction Authorizing Conviction for False Swearing on Testimony of Witness, with "Corroborating Circumstances," Held Erroneous in Failing to Require "Strong Corroborating Circumstances." — Instruction in prosecution for false swearing requiring proof by testimony of two witnesses or testimony of one witness, with "corroborating circumstances," held erroneous in failing to require that testimony of one witness be supported by "strong corroborating circumstances," since "corroborating circumstances" may be any slight fact or circumstance tending to support principal fact, while "strong corroborating circumstances" implies circumstances calculated to carry conviction.

Appeal from Wayne Circuit Court.

BERTRAM & BERTRAM for appellant.

FRANK E. DAUGHERTY, Attorney General, and G.D. LITSEY, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE SAMPSON.

Reversing.

Appellant, Brake, was convicted in the Wayne circuit court of the crime of false swearing, and now he appeals. As grounds for reversal of the judgment he says that the trial court erred (a) in admitting incompetent evidence in that it allowed parol evidence of the contents of public records without showing that the records were lost or destroyed; (b) the court by its instruction did not require the commonwealth to prove every essential fact necessary to the establishment of the crime of false swearing by two witnesses, or by one witness and strong corroborating circumstances; (c) the court erred in instructing the jury.

Appellant, Brake, was the defendant in a warrant issued by the county judge accusing him of possessing and giving away intoxicating liquors in Wayne county, and on the trial testified in his own behalf, stating, in substance, that he did not give the liquor to the witness in his residence on the day named, and that the prosecuting witness was not in his house on that day and had not been in his house for some three or four years theretofore. He was acquitted upon that trial. He was then indicted for false swearing in that he said the witness was not in his house on the day named and had not been there for three or four years. The evidence shows that the prosecuting witness in the case before the county judge and two or three other persons were working the public road along in front of appellant Brake's home when the little son of appellant came down from the house to the road and said to the prosecuting witness, "Daddy said for you to come up to the...