Davis v. State
| Decision Date | 19 May 1941 |
| Docket Number | 27507. |
| Citation | 34 N.E.2d 23,218 Ind. 506 |
| Parties | DAVIS v. STATE. |
| Court | Indiana Supreme Court |
Appeal from Shelby Circuit Court; George W. Long Special judge.
Ira M. Holmes, of Indianapolis, for appellant.
George M. Beamer, Atty. Gen., and Walter O. Lewis, Deputy Atty Gen., for appellee.
The appellant was convicted of perjury. Error is assigned upon the overruling of a motion to quash the affidavit and upon the overruling of a motion for a new trial.
It appears that the appellant and Carrie Davis and another were charged in the City Court of Shelbyville with the offenses of vagrancy, desecration of the flag of the United States, rout, and intimidation of police officers. On the trial, Carrie Davis claimed the right to be discharged upon the ground that she was the wife of the codefendant Erman Davis, and that it must be presumed that she was acting under coercion of her husband. There was evidence that the Davises were living together as husband and wife in Indianapolis, and it appears that Erman Davis, in addition to testifying to these facts, testified that he and Carrie Davis procured a marriage license, and were married, in April, 1935, by a Justice of the Peace, in Steubenville, Ohio.
Thereafter Erman Davis was charged by affidavit with perjury, and this appeal is from a judgment of conviction in that case.
The perjury charge is based upon appellant's testimony in the misdemeanor trial. The affidavit charges that the question as to whether or not Carrie Davis was the wife of Erman Davis became a material issue in the trial. It is further alleged that the testimony of Erman Davis, that they procured a marriage license and were married in April, 1935, in Steubenville, Ohio, is false. But it is not alleged that his testimony, as to having procured a license and having been married in Steubenville, Ohio, was material to the issue on trial at the time he testified, nor is it alleged that Erman and Carrie Davis were not in fact husband and wife, nor that his testimony that they were husband and wife was false.
The evidence adduced at the perjury trial included testimony of jurors and others that Erman Davis had testified in the misdemeanor trial that he and Carrie Davis were husband and wife, and were living together as husband and wife in Indianapolis, and testimony that, on the day the misdemeanors were charged to have been committed, or the day before, they had said they were husband and wife and were living together as husband and wife. Two witnesses, one a county clerk and one an abstracter of titles, from Shelbyville, Indiana, testified that they went to Steubenville, Ohio, and searched the records in the courthouse and found no record of a marriage license having been issued as claimed by the appellant, and found no Justice of the Peace in the section of Steubenville where Davis testified that they had been married by a Justice of the Peace.
Falsely testifying is not perjury unless it is 'touching a matter material to the point in question * * *.' Burns' Ind.St.1933, § 10-3801, Baldwin's Ind.St.1934, § 2619. This was the rule at common law. There may be cases in which a mere statement of the testimony said to be false shows that it was material to the issue in the case in which it was given. But where the facts sworn to involve a collateral matter not appearing on its face to be material, materiality must be alleged and proven. In such cases courts and text-writers have experienced difficulty in formulating a rule by which materiality may be determined. It is clear that there must be criminal intent, although such an intention may be inferred from the giving of willfully false testimony reasonably calculated to mislead the trior of facts upon a material question. In Gillett on Criminal Law, 2d Ed., § 694, p. 553, it is said that: '* * * if a witness, with an intention to deceive the jury, swear so as to make an impression on their minds that a fact material in the cause is different from what it really is and from what he knows it to be, he is guilty of perjury.' But where the material question in a case is the value of property destroyed, it may not be possible to show that the value put upon it by a witness, who had testified falsely as to his qualifications as an expert on values, was not the true value, but in such a case he may be convicted of perjury because of an unlawful intenton to improperly influence the jury.
Gillett says (§ 692): 'Thus, if a witness be asked whether goods were paid for on a particular day, and he answer in the affirmative,--if the goods were really paid for, though not on that particular day, it will not be perjury.' But it seems clear that if there is a conflict in the testimony, as to whether in fact the goods were paid for, he might be guilty of perjury if the testimony was false and designedly so. Serjeant Hawkins refers to a number of similar cases in which it was held that the false testimony was not material,...
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