Com. v. Jarboe

• Decision Date: 26 September 1889
• Citation: 89 Ky. 143,12 S.W. 138
• Parties: COMMONWEALTH v. JARBOE.
• Court: Kentucky Court of Appeals

12 S.W. 138

89 Ky. 143

COMMONWEALTH v. JARBOE.

Court of Appeals of Kentucky.

September 26, 1889

Appeal from circuit court, Taylor county; W. E. RUSSELL, Judge.

"To be officially reported."

P. W Hardin, Atty. Gen., for the Commonwealth.

HOLT J.

The averment in this indictment for perjury is that "the said Robert Jarboe did then before the court aforesaid take his corporal oath, and was then duly sworn by the said court and clerk thereof, that the evidence he, the said Robert Jarboe, should give to the court and jury sworn between the parties aforesaid touching the matters in question in the said issue should be the truth, the whole truth, and nothing but the truth." Upon the trial it was proven by the clerk, who administered the oath, that the accused was with uplifted right hand sworn by him: "You do solemnly swear that the evidence you give in the case now on trial shall be the truth, the whole truth, and nothing but the truth, so help you God;" to which the witness responded affirmatively. The lower court held that this was not a corporal oath, as charged in the indictment, and at the conclusion of the testimony for the state instructed the jury peremptorily to acquit the accused, which they did, and the commonwealth now asks the ruling of this court that the law may in the future be properly administered.

The objection that the oath, as shown to have been taken, was not a corporal one would, if true, be hypertechnical. If so, yet there was no material variance between the averment in the indictment and the evidence, because it was not only stated in it that the witness took his corporal oath, but that he was sworn in the mode common to our courts. It is true, the material averments of an indictment must be proven substantially as charged; but the reason for this is that the accused may have notice and opportunity to prepare his defense. When, however, the reason of a rule fails, it must also fail. The averment that the accused took his corporal oath, and was sworn to tell the truth, the whole truth, and nothing but the truth, certainly notified him that upon the trial the commonwealth would attempt to prove that he was sworn to tell the truth; and the statement that he took "his corporal oath" was unnecessary and immaterial. The taking of a corporal oath, as anciently understood, was unnecessary to the commission of the offense. It was complete as stated in the indictment without it. If an indictment for unlawful shooting merely were to charge that it was done...