Cluck v. State

• Decision Date: 29 June 1936
• Docket Number: Crim. 3994
• Citation: 96 S.W.2d 489,192 Ark. 1036
• Parties: CLUCK v. STATE
• Court: Arkansas Supreme Court

96 S.W.2d 489

192 Ark. 1036

CLUCK v. STATE

Crim. 3994

Supreme Court of Arkansas

June 29, 1936

Appeal from Crawford Circuit Court; J. O. Kincannon, Judge affirmed.

Judgment affirmed.

Rains & Rains, for appellant.

Carl E. Bailey, Attorney General, and Guy E Williams, Assistant, for appellee.

SMITH J. JOHNSON, C. J., BUTLER, and BAKER, JJ., dissent.

OPINION

SMITH, J.

Appellant was given a sentence of one year in the penitentiary upon his trial under an indictment, which, omitting its formal parts, reads as follows: "The said George Cluck in the county and State aforesaid, on the 26th day of November, A. D., 1935, on his examination as witness for the defendant in the trial of the case of State of Arkansas v. Emmitt Cluck, charged with grand larceny, at the November, 1935, term of the Crawford Circuit Court at Van Buren, after having been duly sworn to tell the truth, the whole truth and nothing but the truth by Homer Mitchell, circuit clerk, a person duly authorized to administer oaths, he, the said George Cluck did and then and there wilfully, unlawfully and feloniously swore that he was present about the 7th day of July, 1935, at his home near Whitewater in Crawford County, and saw Elvin Davis sell Emmitt Cluck two large hogs and four smaller hogs, same being the hogs Emmitt Cluck was on trial for stealing, that Elvin Davis was driving a gray and black mare, the ones he had been driving previously to Davis' wagon, that he saw Emmitt Cluck pay Elvin Davis sixteen dollars for said hogs, and that Emmitt Cluck was at the time 19 years old, which said testimony was material in the trial of said cause, but was false and known to be false by the said George Cluck at the time he so testified. The truth being that said hogs had been previously stolen by Emmitt Cluck from Johnnie Barnes, Jimmie Fields, and Jim Davis, that Elvin Davis did not sell hogs to George Cluck or Emmitt Cluck, in the presence of George Cluck on or about the 7th day of July, 1935, and that the said Emmitt Cluck was at the time 23 years old. All of said testimony given by the said George Cluck being false and untrue and that the said George Cluck did falsely, wilfully, corruptly, maliciously, unlawfully, and feloniously commit wilful and corrupt perjury, and against the peace and dignity of the State of Arkansas."

It will be observed that the indictment alleges that appellant was sworn as a witness by Homer Mitchell, circuit clerk of the court in which the alleged false testimony was given, whereas testimony was admitted without objection or exception to the effect that appellant was in fact sworn by the Hon. J. O. Kincannon, the judge presiding at the trial.

The question whether the allegation of the name and title of the officer administering the oath is a material allegation, and, if so, whether there is a material variance between the allegation and the testimony presents the principal and the most serious question raised on this appeal, which has been duly prosecuted to reverse the judgment of conviction.

It must be confessed that at common-law this was an essential allegation and this difference between the allegation and the proof would constitute a material variance, which would require a reversal of the judgment. There are many cases to this effect. The question here presented is whether this allegation is material under our statutes; and, whether this difference between allegata et probata constitutes a material variance.

The case of Loudermilk v. State, 110 Ark. 549, 162 S.W. 569, points out some of the relaxations in the technical strictness of the common-law in prosecutions for perjury. It was there pointed out that an indictment for perjury would be held sufficient when it alleges that the perjured testimony was material, but did not specify how it was material. Our statute modifying the common-law so provides. It was there also held that it was not necessary for an indictment for perjury to expressly state that the court had jurisdiction of the case in which the false testimony was given, but that an allegation that the court had authority to administer the oath was sufficient.

Our statute on perjury provides: "In indictments for perjury, it shall be sufficient to set forth the substance of the offense charged, and by what court or before whom the oath or affirmation was taken, averring such court or person to have competent authority to administer the same, together with the proper averments to falsify the matter wherein the perjury is charged or assigned, without setting forth any part of the record, proceeding or process either in law or equity, or any commission or authority of the court or person before whom the perjury was committed, or the form of the oath or affirmation, or the manner of administering the same." Section 2590, Crawford & Moses' Digest.

In the chapter on criminal procedure, the following section appears: "In an indictment for perjury, it is not necessary to set forth the pleadings, record or proceedings with which the oath is connected, so that the substance of the controversy, or matters in respect to which the offense was committed, is properly stated; nor is it necessary to set forth the commission or authority of the court or person before whom the oath alleged to be false was taken, so that it be stated in what court or before whom it was taken, and that the court or person was authorized to administer the oath." Section 3023, Crawford & Moses' Digest.

The effect of these sections is that the allegation that the court had authority to administer the oath is sufficient, and that allegation sufficiently appears in the indictment copied herein. It would appear therefore that the allegation that appellant was sworn "by Homer Mitchell, circuit clerk" was unnecessary as the indictment would otherwise have been sufficient without naming the officer who had administered the oath, and without recitation of the title of his office.

In the chapter on perjury, 48 Corpus Juris, page 875, a paragraph of § 124 thereof has the caption "Naming Officer" who administered the oath. It was there said: "While such designation may call for an averment of the name of such officer, it is generally held that where the offense was committed in a judicial proceeding, it is not necessary to name the officer before whom the false oath was taken, designating the court being considered sufficient; and where the court or presiding judicial officer acts through another in administering the oath, an averment that the oath was administered by the court or by the presiding judicial officer is sufficient." Numerous cases are there cited in support of the text quoted.

If naming the officer, with the title of his office, is not essential, what is the effect of this unnecessary allegation and the failure to prove it?

Among the numerous cases which answer this question, that of West v. U. S., 258 F. 413, is directly in point. The authority of this case is enhanced by the fact that the decision thereof turned upon the construction of Federal statutes in many respects identical with, and in no material respect different from, our own statutes applicable to the question under consideration. The indictment in that case alleged that the accused had been sworn by his Honor, John E. Sater the presiding judge, whereas the testimony was to the effect that the oath had been administered by a deputy clerk of the court. The indictment was based upon a Federal statute reading as follows: "It shall be sufficient to set forth the substance of the offense charged upon the defendant, and by what court, and before whom the oath was taken, averring such court or person to have competent authority to administer the same, * * * and without setting forth the commission or authority of the court or person before whom the perjury was committed."

A comparison of this statute with § 2590 of our statutes, set out above, shows their substantial identity.

Circuit Judge Knappen, for the circuit court of appeals, there said that: "The indictment was sufficient in form and the deputy clerk had full authority to administer the oath in the court's presence. It was not necessary to allege the name of the clerk who administered the oath or that of the judge who took it." (Citing cases.) The court said: "Apparently the word 'and,' italicized above, means 'or'." It is not necessary to invoke this construction of our statute for it will be observed that our statute employs the disjunctive "or" rather than the conjunctive conjunction "and." The court said: "If there is merit in the objection that the evidence of the administering of the oath was insufficient, it can only be because of a fatal variance between the indictment and the proof."

In holding there was no such variance, the court said that assuming the intention was to charge that Judge SATER personally administered the oath, the variance was not fatal. It was there said: "Were there reason to believe that plaintiff in error was misled to his prejudice, in preparation for defense or otherwise, by an allegation, express or implied, however unnecessarily made, that Judge SATER personally administered the oath, the case would be...