Campbell v. State

• Decision Date: 27 July 1926
• Citation: 92 Fla. 775,109 So. 809
• Parties: CAMPBELL v. STATE.
• Court: Florida Supreme Court

109 So. 809

92 Fla. 775

CAMPBELL v. STATE.

Florida Supreme Court, Division B.

July, 27, 1926

On Rehearing Oct. 21, 1926.

Error to Court of Record, Escambia County; A. G. Campbell, Judge.

Mathis Campbell was convicted of perjury, and he brings error.

Reversed on rehearing.

(Syllabus by the Court.)

On Rehearing.

COUNSEL

J. McHenry Jones, of Pensacola, for plaintiff in error.

J. B Johnson, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

BUFORD J.

The defendant in error was convicted in the court of record of Escambia county, Fla., of the offense of perjury and sentenced to serve a period of two years at hard labor in the state prison.

From judgment of conviction he brought writ of error. The assignment of error was that the court erred in overruling the defendant's motion for a new trial.

The motion for a new trial was in the following language, to wit:

'Comes now the defendant, Mathis Campbell, by his attorney and moves the court to vacate and set aside the verdict rendered herein and grant unto him a new trial for the following reasons:

'(1) That the verdict is contrary to the evidence.

'(2) That the verdict is contrary to law.

'(3) That the verdict is against the weight of the evidence.

'(4) That the verdict is unsupported by the evidence.

'(5) That the evidence is insufficient to sustain the verdict.

'(6) That the court erred in charging the jury as follows: 'Under our statute law, where one is sworn by a county solicitor, is put under oath by a county solicitor, in investigation of matters concerning the criminal laws of the state or violations of the criminal laws of the state being under such oath, willfully, knowingly, corruptly, and intentionally swears falsely concerning any matter material in this investigation, they are guilty of what is known as the crime of perjury.'

'(7) That the charge of the court is misleading and confusing.'

The information sufficiently charges perjury, as defined in section 5341, Revised General Statutes of Florida. In an information charging perjury, under the provision of section 5341, Revised General Statutes of Florida, it is an essential allegation that the party charged was duly sworn and that the oath was administered to him by some one authorized by law to administer such oath. Craft v. State, 42 Fla. 567, 29 So. 418.

Every essential allegation of the charge must be proved beyond a reasonable doubt before a verdict of guilty is authorized.

In the instant case, the proof showed that the oath was administered by William Fisher, but it did not show that the oath was administered by William Fisher, County Solicitor of Escambia county, Fla. The court was vested with authority to take juridicial cognizance of the fact that the William Fisher referred to in the testimony was in fact William Fisher, County Solicitor of Escambia county, Fla., who at the time was acting in that official capacity on the trial of this case, and this authority to take judicial cognizance extended in this case to the jury. Where a defendant is charged with the crime of perjury, the jury is not authorized, upon receiving testimony that the oath charged to have been violated was administered by a certain individual, to assume, in the absence of affirmative judicial knowledge, that that individual was lawfully authorized to administer such oath until evidence shall have been submitted showing that such person was then and there authorized to administer the oath (would constitute reversible error), but when the evidence shows that such oath was administered by a person and it appears that such person was one (as to) whose official position, powers, duties, and authority to administer the oath, must certainly have been well known to both court and jury, such as the county solicitor of the county where the case is being tried, proof of the official status of such person will not be required, as such judicial knowledge takes the place of proof. State ex rel. v. Seibert, 130 Mo. 202, 32 S.W. 670; Amos v. Mosley, 74 Fla. 555, 77 So. 619, L. R. A. 1918C, 482.

Every defendant is presumed to be innocent of the offense charged until every material element of the offense has been proved by competent testimony, and the burden is upon the state to prove each element of the offense before a legal conviction may be had. Judicial knowledge, however, ordinarily displaces the necessity of evidence as it means the same thing. 15 R. C. L. 1056.

We find no reversible error disclosed by the record. We must therefore hold that the refusal to grant defendant's motion for a new trial does not constitute error, and judgment should be affirmed. And it is so ordered.

Affirmed.

WHITFIELD, P.J., and TERRELL, J., concur.

BROWN, C.J., and ELLIS and STRUM, JJ., concur in the opinion.

On Rehearing.

BUFORD J.

This cause was heretofore presented to the court, and upon consideration thereof the judgment was affirmed. In the original opinion the court says:

'Where a defendant is charged with the crime of perjury, the jury is not authorized, upon receiving testimony that the oath charged to have been violated was administered by a certain individual, to assume, in the absence of affirmative judicial knowledge that that individual was lawfully authorized to administer such oath until evidence shall have been submitted showing that such person was then and there...