Brown v. State

• Decision Date: 03 May 1904
• Citation: 36 So. 705,47 Fla. 16
• Parties: BROWN v. STATE.
• Court: Florida Supreme Court

36 So. 705

47 Fla. 16

BROWN v. STATE.

Florida Supreme Court, Division A.

May 3, 1904

Error to Criminal Court of Record, Escambia County; Elmore D Beggs, Judge.

Julius Brown was convicted of perjury, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. An information or indictment for perjury should either affirmatively allege, or show from other averments, that the false testimony was material to the issue upon the trial of which it was given. The indictment, at the pleader's election, may either aver directly that the testimony falsely deposed was material to some issue on trial, or else allege facts from which its materiality will, in law, appear.

2. Where a proper case is presented for impeaching a witness by showing that he has made statements elsewhere contradictory to those made on the witness stand, such witness will be guilty of perjury if he swears falsely as to whether he did or did not make such contradictory statements.

3. While it is necessary that an indictment for perjury should show the materiality of the matter alleged to have been falsely sworn, it is also necessary that the materiality shall be shown by the proofs, and, if not so proved, there can be no conviction.

COUNSEL Chas. M. Coston, for plaintiff in error.

W. H Ellis, Atty. Gen., for the State.

OPINION

TAYLOR C.J.

The defendant below (plaintiff in error here) was informed against in the criminal court of record of Escambia county for perjury; the information, omitting its formal commencement and conclusion, being as follows: 'That Julius Brown, late of the county of Escambia aforesaid, in the state aforesaid, laborer, on the second day of February in the year of our Lord one thousand nine hundred and three, with force and arms, at and in the county of Escambia aforesaid, before the criminal court of record of Escambia county, Florida, whereof Honorable E. D. Beggs was judge, on an issue within the jurisdiction of said court duly joined, and trial thereof before a jury of the country between the state of Florida, as plaintiff, and Jack Adams, as defendant, was, in due form of law, sworn by the said Judge E. D. Beggs, having competent authority to administer to him the oath, to tell the truth, the whole truth, and nothing but the truth, touching the matters then and there in controversy between the said plaintiff and defendant. Whereupon it then and there became and was a question material to the said issue whether the said Jack Adams, who was then and there on trial as aforesaid, sold whisky, beer, or wine in Escambia county, Florida, without first having obtained a license so to do from the proper authority, and to this the said Julius Brown did then and there willfully, knowingly, falsely, and corruptly testify and say, in substance and effect, that the said Jack Adams did not sell or cause to be sold any whisky, beer, or wine on the 27th day of June, 1902, or at any time during the said year, and that he did not swear before C. B. Parkhill, solicitor of the criminal court of record of Escambia county, Florida, at the office of the said C. B. Parkhill, in the city of Pensacola, Florida, that he bought whisky and beer from the said Jack Adams on the 27th day of June, 1902, whereas, in truth and in fact, as the said Julius Brown then and there well knew, that he did swear and say before the said C. B. Parkhill, in his said office, that he bought whisky and beer from the said Jack Adams on the 27th day of June, 1902, against the form of the statute,' etc. Upon this information the defendant was tried, convicted, and sentenced, and asks reversal here on writ of error.

Before trial the defendant moved to quash the information upon the following grounds:

'(1) Because the said information is vague, indefinite, and so uncertain as not to be understood by the defendant.

'(2) Because the said information does not inform the defendant of the nature of the crime that he is required to stand trial for.

'(3) Because the said information is multifarious, in this: that it charges two separate and distinct offenses in one and the same count.

'(4) Because the said information is defective, in this: that it sets forth statements alleged to have been made by the defendant that are not material.

'(5) Because the said information is defective, in this: that it fails to set forth alleged statements by defendant that were material.'

The denial of this motion constitutes the first assignment of error.

An information for perjury should either affirmatively allege or show from other averments, that the false testimony was material to the issue upon the trial of which it was given. 16 Ency. Pl. & Pr. 342, and citations; Miller v. State, 15 Fla. 577; Robinson v. State, 18 Fla. 898. The indictment, at the pleader's election, may either aver directly that the testimony falsely deposed was material to some issue on trial, or else allege facts from which its materiality will, in law, appear. 2 Bishop, New Cr. Proc. §...