Chenault v. State.

Decision Date06 May 1929
Docket Number27806
Citation122 So. 98,154 Miss. 21
CourtMississippi Supreme Court
PartiesCHENAULT v. STATE. [*]

(Division B.)

1. INDICTMENT AND INFORMATION. Perjury. Indictment should charge law violations directly, not by way of recital; indictment for perjury before grand jury should aver directly that grand jury was legally impaneled, charged, and sworn, and was investigating law violations; indictment for false swearing before grand jury respecting fight should name participants and give time, place, or circumstances by direct allegation.

In an indictment, violations of the law should be charged by direct and positive averment, and not by way of recital. An indictment for perjury, predicated upon false swearing before a grand jury, should aver directly and positively that the grand jury was duly and legally impaneled, charged, and sworn, and was, at the time of the false swearing investigating violations of law. And where the false swearing was in reference to a fight, the indictment should name the participants, and give the time, place, or circumstances by direct allegation.

2 PERJURY. Perjury indictment, in addition to other necessary facts, should directly allege what truth is respecting matter involved.

An indictment for perjury should not only charge by proper averments the taking of the oath, the materiality of the inquiry in regard to which the oath was taken, and the authority of the person administering the oath so to do, and that the testimony was in fact corruptly and falsely given but it should further aver what the truth is in reference to the subject-matter concerning which the oath was administered. And the truth of the matter should be directly alleged, and not merely by way of recital.

3. CRIMINAL LAW. Ruling that defendant, by questioning witness respecting defendant's good character and reputation made witness defendant's witness as respects right to cross-examine, held not prejudicial.

In prosecution for perjury, based on false swearing before grand jury, trial court's ruling that defendant, in seeking to cross-examine one of grand jurors respecting defendant's good character and reputation in community in which he lived in respect to his veracity, made witness defendant's witness and that defendant could develop that proof as part of his case, and was not entitled to privilege allowed on cross-examining witnesses, held not reversible error.

4. WITNESSES. Party, in cross-examining witness, may interrogate him about every feature of case, and by doing so does not make him cross-examiner's witness.

Witness introduced by one party is a witness for all purposes material to case, and party on cross-examination is entitled to interrogate him about every feature of case, and by so doing does not make him witness of cross-examiner.

5. COURTS. All supreme court judges are bound by decision of case, subject to right of majority of court to overrule it.

All judges of supreme court are bound by such court's decision of a case, which then becomes law of state, subject to right, whenever a majority of the court reaches conclusion that case should be overruled, to change such decision.

6. CRIMINAL LAW. Failure of only instruction for state to correctly state testimony required to establish perjury charge required reversal, Giving state's requested instruction to find defendant guilty of perjury as charged, if jury believed from evidence beyond reasonable doubt that defendant testified falsely under oath as witness before grand jury, held reversible error for failure to state that perjury must be established by testimony of two witnesses, or by one witness and corroborating circumstances, where it was only instruction given for state.

7. CRIMINAL LAW. Defendant's failure to request correct instruction held not to estop him from claiming benefit of state's failure to obtain it.

Failure of defendant to request instruction correctly stating testimony required to. establish charge of perjury against him held not to estop him from contending for his rights because of state's failure to obtain such instruction.

Division B

APPEAL from circuit court of Chickasaw county, First district.

HON. T. E. PEGRAM, Judge.

Tom H. Chenault was convicted of perjury, and he appeals. Reversed and remanded.

Judgment reversed, demurrer sustained.

J. H. Ford, for appellant.

In order to constitute the crime of perjury before a grand jury, the thing about which the defendant was testifying must be shown to have been a violation of the law. If the facts constituting the incident under investigation are not charged to have constituted a violation of the law, then no crime for perjury is charged in the indictment. State v. Wiggins, 30 So. 712. The indictment merely charges that the defendant was asked about a fight "having taken place and did take place at the home of Jesse Davis" on the night of September 24, 1927. Nowhere is it charged as to who took part in the fight, if any one, or that such parties participating were guilty of any violation of the law in so doing. Was it a rooster fight, or dog fight, or what? It is impossible to tell from the language of this indictment. It does not charge that the alleged fight constituted a violation of the law, nor are the circumstances of the fight set forth.

The indictment fails to charge that the matters and things about which defendant was alleged to have falsely sworn were material matters in issue or, at the time, in point of inquiry before the grand jury. The allegation that certain questions and answers were material is not sufficient. The language set forth must show how it is material. In other words, it must be charged that the grand jury had under investigation and under inquiry the material questions of whether a certain thing happened and that the witness testified falsely as to certain facts, stating them, which were material to that issue or inquiry then under investigation. Merely charging that a certain material question, stating it, was asked the witness, and that the answer thereto was material, without showing how it was material or that it was material to the matters in issue or inquiry at the time, does not meet the requirements of the law. Bishop's New Criminal Law (8 Ed.), sec. 1030 et seq. The indictment fails to charge that the grand jury at the time had under investigation or at issue or under point of inquiry the matters and things about which it was alleged the defendant committed perjury. McNeice v. State, 101 Miss. 366, 58 So. 3. It is not charged that at the time the grand jury had anything at issue or under investigation. The statement that the defendant was sworn that the evidence he would give "touching the matters being investigated and the questions asked him by the grand jury and the answers thereto by him would be the truth," without charging that the matters he was testifying about were at issue and being then and there investigated, and what such matters at issue and under investigation were, does not satisfy the legal requirements, however much the pleader might allege that the question and answer or matters inquired about were "material" as a mere legal conclusion of his own.

Joe L. Davis, the foreman of the grand jury at the October term, 1927, was the first witness for the state. On cross-examination it appeared that he had known the defendant and lived within five or six miles of him all his life. He was asked on part of the defendant if he knew his reputation for truth and veracity. He answered that he had never heard it questioned. The state objected. Counsel for the defendant then asked him if from what he knew about him, he would say that he knew his reputation for truth and veracity. Thereupon the court announced that the witness on that proposition was that of the defendant and refused to permit cross-examination thereon. We think it was not fair to the defendant to require him to adopt the witness and make him his own on a material question in the case. Counsel offered to show by the witness that he did know the reputation of the defendant for truth and veracity and that it was good. The court announces in the presence of the jury that on that proposition the witness was that of the defendant himself and did not permit him to be cross-examined thereon. We do not understand the rule to be as the court announced it. He was introduced as a witness for the state and was not at any time the witness of the defendant for any purpose. The reputation of the defendant for truth and veracity is material to the issue assigned by the state that the defendant was guilty of perjury. We think that in that kind of a case the witness for the state may be cross-examined as to that material issue regardless of what may be the rule in other cases.

There was but one instruction given on part of the state. The instruction does not charge the jury that the state must prove the material facts of its case by the testimony of two witnesses, or that of one witness and corroborating circumstances, as required by law in cases of prosecution for perjury. Brown v. State, 57 Miss. 424; Saucier v. State, 95 Miss. 226, 48 So. 840; Wilbur v State, 151 Miss. 837, 119. So. 303. "It is true it is stated in the ninth and eleventh charges for the defense; but, even if it could properly be said that these charges nine and eleven cured this omission in the first charge for the state, it nevertheless remains true that the state ought always, on a charge of perjury, somewhere in its own charges, to state the quantum of proof necessary, in order that the law of the case may be properly given. Suppose no instructions had been given for the defense on this subject; manifestly the case should be reversed for this erroneous charge No. 1 in that attitude of the case." ...

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