Capps v. State

• Decision Date: 09 January 1940
• Docket Number: 6 Div. 491.
• Citation: 29 Ala.App. 192,194 So. 689
• Parties: CAPPS v. STATE.
• Court: Alabama Court of Appeals

194 So. 689

29 Ala.App. 192

CAPPS v. STATE.

6 Div. 491.

Court of Appeals of Alabama

January 9, 1940

Rehearing Denied Feb. 27, 1940.

Appeal from Circuit Court, Walker County; D. A. McGregor, Special Judge.

Walter Capps was convicted of perjury, and he appeals.

Reversed and remanded.

Certiorari denied by Supreme Court in Capps v. State, 6 Div. 652, 194 So. 693.

Chas. R. Wiggins and Carl A. Elloitt, both of Jasper, for appellant.

Thos S. Lawson, Atty. Gen., and Francis M. Kohn, Asst. Atty. Gen for the State.

SAMFORD Judge.

The indictment was in four counts as follows:

"The Grand Jury of said county charge that before the finding of this Indictment Walter Capps, whose name is to the Grand Jury otherwise unknown, on his examination as a witness, duly sworn to testify, on the trial of Hoyt Clark; in the Circuit Court of Walker County, Alabama, under an indictment for forcibly ravishing Gertrude White, a woman, which said court had authority to administer such oath, falsely swore as follows: 'Back in August of this year I remember an occasion on Thursday night when I went to the picture show at Sipsey and took Miss Gertrude White and Miss Fewell out riding. We picked up the Fewell girl on the way to the show, and we came on up to the picture show and got Miss Gertrude White, Hoyt Reeves and Ellie B. Clark came back to the car with the two girls. We got to Sipsey the next morning about 3:30 or four o'clock. A few days after this alleged assault was committed on this girl I didn't tell Mr. White, the father of Gertrude White, in the presence of Berry Justice that I had been running around with Hoyt Clark and the other boys but I was glad of one thing that was I was at home sleep in bed. I told the jury that Hoyt Clark and Gertrude White didn't go off anywhere that night together. I was with them all the time on the night of this alleged attack from the time we left Sipsey that night until we got back there the next morning. I am sure I was on this trip from the time we left Sipsey until we got back about daylight. None of us drank any whiskey that night.' The matters so sworn to being material, and the testimony of the said Walter Capps being willfully and corruptly false.

"Count 2. The Grand Jury of said County further charge that before the finding of this Indictment: Walter Capps, whose name is to the Grand Jury otherwise unknown, on his examination as a witness, duly sworn to testify, on the trial of Hoyt Clark: in the Circuit Court of Walker County, Alabama, under an indictment for forcibly ravishing Gertrude White, a woman, which said court had authority to administer such oath, falsely swore as follows: 'We picked up the Fewell girl on the way to the show, and we came on up to the picture show and got Miss Gertrude White, Hoyt Reeves and Ellie B. Clark came back to the car with the two girls. I was with them all the time on the night of this alleged attack from the time we left Sipsey that night until we got back there the next morning. I am sure I was on this trip from the time we left Sipsey until we got back about daylight'. The matters so sworn to being material, and the testimony of the said Walter Capps being willfully and corruptly false.

"Count 3. The Grand Jury of said County further charge that before the finding of this Indictment, Walter Capps, whose name is to the Grand Jury otherwise unknown, on his examination as a witness, duly sworn to testify, on the trial of Hoyt Clark; in the Circuit Court of Walker County, Alabama, under an indictment for forcibly ravishing Gertrude White, a woman, which said court had authority to administer such oath, falsely swore as follows: 'I was with them all the time on the night of this alleged attack from the time we left Sipsey that night until we got back there the next morning. I am sure I was on this trip from the time we left Sipsey until we got back about daylight.' The matters so sworn to being material, and the testimony of the said Walter Capps being willfully and corruptly false.

"Count 4. The Grand Jury of said County further charge that before the finding of this Indictment Walter Capps, whose name is to the Grand Jury otherwise unknown, on his examination as a witness, duly sworn to testify on the trial of Hoyt Clark; in the Circuit Court of Walker County, Alabama, under an indictment for forcibly ravishing Gertrude White, a woman, which said court had authority to administer such oath, falsely swore as follows: 'I told the jury that Hoyt Clark and Gertrude White didn't go off anywhere that night together. I was with them all the time on the night of this alleged attack from the time we left Sipsey that night until we got back there the next morning.' The matters so sworn to being material, and the testimony of the said Walter Capps being willfully and corruptly false. Against the peace and dignity of the State of Alabama."

This prosecution was brought under Section 5159 of the Code of 1923 and each count thereof conforms to Form 81, Section 4556 of the Code of 1923; and each of said counts sufficiently charge the offense and are not subject to any of the demurrers interposed, Code of 1923, Sections 5159 and 5160.

Where an indictment charges perjury in that the defendant willfully and corruptly swore falsely to certain material facts, it is incumbent upon the State to prove the allegations in the indictment as therein laid; and the falsity of the testimony, as to each material allegation, must be established by the testimony of more than one witness or by the testimony of one witness strongly corroborated by circumstances. Wofford v. State, 21 Ala.App. 521, 109 So. 886 ; Id., 215 Ala. 106, 109 So. 887.

A defendant cannot be convicted of perjury on the uncorroborated evidence of a single witness. McDaniel v. State, 13 Ala.App. 318, 69 So. 351; Id., 193 Ala. 678, 69 So. 1018.

In the instant case there is no sufficient evidence to authorize a conviction under count one of this indictment. There is only one witness to the allegation: "* * * A few days after this alleged assault was committed on this girl I didn't tell Mr. White, the father of Gertrude White, in the presence of Berry Justice that I had been running around with Hoyt Clark and the other boys but I was glad of one thing and that was I was at home sleep in bed." This material allegation in the indictment was testified to by only one witness without corroboration, and would entitle the defendant to the affirmative charge as to this count. However, the affirmative charge as to this count was not requested and no exception to the ruling on the motion for a new trial appears in the bill of exceptions so the question is not before us for...