Brittian v. Commonwealth

• Decision Date: 12 October 1923
• Citation: 200 Ky. 461,255 S.W. 59
• Parties: BRITTIAN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

255 S.W. 59

200 Ky. 461

BRITTIAN v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 12, 1923

Appeal from Circuit Court, Whitley County.

Lloyd Brittian was convicted of false swearing, and he appeals. Affirmed.

H. C Gillis, of Williamsburg, for appellant.

Thos B. McGregor, Atty. Gen., and J. C. Bird, Commonwealth Atty of Williamsburg, for the Commonwealth.

CLARKE J.

Appellant complains of his conviction of the statutory crime of false swearing, because of the admission of incompetent evidence the refusal of the court to direct his acquittal, and the assumption in the instructions that an essential fact, not proven, was true.

There is presented, however, only the question of whether or not the court erred prejudicially in permitting the commonwealth to prove orally that the alleged false statements were made by defendant upon the trial of an action then pending against him in the Williamsburg police court, and that one Paul was judge of that court and administered the oath, since there is no basis for the contention that the court erred in refusing to direct an acquittal, or in the instructions given, except the alleged incompetency of such evidence.

We have held, and it is the generally recognized rule, that oral proof that a certain person presided at a trial is competent to make out a prima facie case that such person had authority so to do, and to administer the oath at least as a de facto officer, and that thereby the burden of proving otherwise is shifted to the defendant. Biggerstaff v. Com., 11 Bush, 169; Goslin v. Commonwealth, 121 Ky. 698, 90 S.W. 223, 28 Ky. Law Rep. 683. Hence there is no merit in the contention that the court erred in admitting oral proof that Paul was the judge of the Williamsburg police court.

Nor did the court err in admitting oral evidence that defendant was sworn before giving the alleged false testimony without prior proof there was no record evidence of that fact, since it is neither required nor usual that the swearing of witnesses in such courts be recorded, and the presumption therefore is that there was no such record.

We think it is clear, however, that the court did err in admitting, over defendant's objections and exception oral proof of the trial upon which it was alleged in the indictment the false evidence was given. That fact was a matter of record, and presumably available. According to all the cases, it is necessary to prove the...