Syllabus by the Court.
(a) In
order to constitute perjury, it is not necessary that the
matter sworn to should be directly and immediately material
but it is sufficient if it is so connected with the matter at
issue as to have a legitimate tendency to prove or disprove
some fact that is material by giving weight or probability to
or detracting from testimony of a witness to such material
fact.
(b)
Perjury may be assigned upon false statements affecting the
credibility of a witness whose testimony was material to the
main issue. For facts sustaining a charge for perjury under
this head, see opinion.
(c)
Upon a trial for perjury, the degree of the materiality of
the testimony upon which it is based is of no importance. Any
false statement made by a witness which detracts from or adds
weight and force to the testimony of any witness upon matters
that are directly material thereby becomes material itself
and constitutes perjury.
(d) As
a general rule the materiality of testimony is a question of
law for the court, but cases may arise where this materiality
depends upon disputed facts, and it then becomes a mixed
question of law and fact, and should be submitted to the jury
under proper instructions.
(e)
Even in cases where the materiality of evidence is not a
mixed question of law and fact, but is purely a question of
law which should be decided by the court, yet, if the court
erroneously submits the materiality of such testimony to the
jury and the verdict is right, the defendant could not
possibly be injured thereby, and the error will be harmless
and not ground for reversal.
(f) It
is the settled doctrine of this court that no man can be
heard to complain of the commission of an error upon his
trial, unless he can reasonably show by the record that he
has suffered injury thereby.
(g) It
is not necessary for this court to know that an error
committed in the trial of a cause did not injure the
appellant before we can affirm his conviction, but the
conviction should be affirmed unless from the record we have
reason to believe that such error has deprived the appellant
of some substantial right and thereby worked to his injury.
(h) For
an explanation and defense of the ground work and foundation
of the doctrine of harmless error, see opinion.
(i)
This court conceives it to be its duty to give to the people
of Oklahoma as nearly as it can a system of criminal
jurisprudence based alone upon justice and supported by
reason, which will secure to every man, be he poor or rich
beggar or millionaire, full protection in his rights, and
also secure to the people at large due execution of the
criminal laws of the state.
(a) For
an instruction upon the subject of the character of appellant
which was requested and properly refused by the court, see
opinion.
(b) For
an instruction upon the subject of character which was
properly given by the trial court, see opinion.
(a)
Where the court in its instructions submits to the jury a
smaller penalty for the offense than that prescribed by law
the appellant cannot be heard to complain, and such
instruction will constitute harmless error, and will not be
ground for reversal.
(b)
Proceedings before a grand jury may constitute part of the
proceedings of a court of justice, but they do not constitute
proceedings in a court of justice.
(c)
Perjury committed in proceedings before a grand jury should
be punished, as prescribed in the third subdivision of
section 2184, Snyder's Comp. Laws, Okl. 1909.
(a) For
reasons why all officers charged with the enforcement of the
penal laws of the state should exercise the utmost diligence
in prosecuting those who commit perjury, even in the smallest
cases, see opinion.
(b) For
an approved indictment for perjury, see statement of case.
(c) For
instructions on the subject of perjury held to be good as
against the objections urged to them, see statement of case.
Appeal
from District Court, Bryan County; D. A. Richardson, Judge.
R.
Coleman was convicted of perjury, and appeals. Affirmed.
On the
25th day of May, 1908, the grand jury of Bryan county
returned into the district court the following indictment:
"State
of Oklahoma, Bryan County--ss.: In the district court of
the Sixth judicial district of the state of Oklahoma, held
in and for Bryan county, in said state. State of Oklahoma
v. R. Coleman. Indictment. At the May term, a term of the
district court of the Sixth judicial district of the state
of Oklahoma, held in and for Bryan county, in the state of
Oklahoma, at the city of Durant, and begun on the 18th day
of May in the year of our Lord one thousand, nine hundred
and eight, the jurors of the grand jury of said county,
good and lawful men, then and there returned, tried,
impaneled, sworn, and charged according to law, to
diligently inquire into, and true presentment make, of all
public offenses against the said state of Oklahoma,
committed or triable within said county, upon their said
oaths, in the name and by the authority of said state of
Oklahoma, do present and find that in said county of Bryan,
in said state of Oklahoma, on the 19th day of May in the
year of our Lord one thousand nine hundred and eight the
grand jury in and for Bryan county, state of Oklahoma, duly
selected, impaneled, sworn and charged in and for the May
term, 1908, of the district court of Bryan county,
Oklahoma, was in lawful session in the grand jury room in
the court house at Durant in Bryan county, Oklahoma; that
one R. L. Crudup was then and there the lawful foreman of
said grand jury, duly appointed by the said district court,
and said R. L. Crudup as such foreman of said grand jury
then and there had lawful authority to administer oaths to
all witnesses appearing before the said grand jury; that
the said grand jury was then and there investigating a
charge against Oscar Eskew, Will Rose, Vernon Bell, Walter
Rogers, George Hinson, Vernon Badgett, and Ed Goosby for
the crime of gaming by playing at craps for money in Bryan
county, Oklahoma, for the purpose of determining whether or
not an indictment should be returned by the said grand jury
against said Oscar Eskew, Will Rose, Vernon Badgett, Walter
Rogers, George Hinson, Vernon Bell, and Ed Goosby, charging
them with the crime of unlawfully gaming by playing at
craps for money, and that the said grand jury then and
there had the lawful power, authority, and jurisdiction to
inquire into said offense and return an indictment
therefor, that said R. Coleman was then and there called
before said grand jury, and appeared before said grand
jury, to testify concerning said matter, and the said R.
Coleman then and there took an oath which was administered
to the said R. Coleman by the said R. L. Crudup as the
foreman of the said grand jury, he, the said R. L. Crudup,
then and there having the lawful authority to administer
said oath, in substance that the testimony which he, the
said R. Coleman, should give before said grand jury would
be the truth, the whole truth, and nothing but the truth,
and thereupon said R. Coleman testified before said grand
jury as under oath, and while so testifying before said
grand jury as under oath the said R. Coleman did willfully,
corruptly, feloniously, falsely, and contrary to such oath
state to the said grand jury, in substance, that on the
night when H. N. Roberts came upon the said R. Coleman,
Oscar Eskew, Will Rose, Vernon Badgett, Walter Rogers,
George Hinson, Vernon Bell, and Ed Goosby in a storm cellar
at or near Colbert, Bryan county, Oklahoma, he did not
state to H. N. Roberts that he was in there trying to win a
piece of money gambling, and that he did not state that he
was ready to pay his fine for gambling, and that the said
R. Coleman stated, further, than said Oscar Eskew, Will
Rose, Vernon Badgett, Walter Rogers, George Hinson, Vernon
Bell, and Ed. Goosby were not in there gambling when in
truth and in fact the said R. Coleman did state to H. N.
Roberts, in substance, at the said time that he was trying
to win a piece of money gambling, and that he, the said R.
Coleman, did state that he was ready to pay his fine, and
when in truth and in fact the said Oscar Eskew, Will Rose,
Vernon Badgett, Walter Rogers, George Hinson, Vernon Bell,
and Ed Goosby were in there gambling; that said statements
of said R. Coleman then and there made to said grand jury
were false, and the said R. Coleman then and there knew the
same to be false, and said statements of said R. Coleman so
made to said grand jury were then and there material. And
so the grand jurors aforesaid on their oaths aforesaid do
say that he, the said R. Coleman, did commit willful and
corrupt perjury, contrary to the form of the statutes in
such cases made and provided, and against the peace and
dignity of the state of Oklahoma."
On the 22d day of January, 1909, this cause came on to be
tried. Upon the trial of the cause the court instructed the
jury as follows:
"Gentlemen
of the jury, the indictment in this case charges the
defendant, R. Coleman, with the offense of perjury alleged
to have been committed before the grand jury of Bryan
county on the 19th day of May, 1908. It is alleged in the
indictment that the grand jury of said county was then and
there in lawful session, and that R. L. Crudup was then and
there its lawful foreman; that said grand jury then and
there had under investigation a charge against Oscar Eskew,
Will Rose, Vernon Bell, Walter Rogers, George Hinson,
Vernon Badgett, and Ed Goosby for the offense of gaming by
playing at craps for money in Bryan county, Okl.; that said
grand jury then and there had lawful power and authority to
inquire into the commission of said
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