Dial v. Com.

• Decision Date: 02 February 1911
• Citation: 133 S.W. 976,142 Ky. 32
• Parties: DIAL v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

133 S.W. 976

142 Ky. 32

DIAL v. COMMONWEALTH.

Court of Appeals of Kentucky.

February 2, 1911

Appeal from Circuit Court, Kenton County, Criminal Division.

James M. Dial was convicted of subornation of perjury, and he appeals. Reversed and remanded.

R. W Nelson, for appellant.

Jas Breathitt, Atty. Gen., and Tom B. McGregor, Asst. Atty. Gen for the Commonwealth.

O'REAR J.

Appellant was convicted of the crime of subornation of perjury. He is an attorney at law. It was charged that he corruptly procured one Frank Mitchell, alias J. W. Keys, to swear falsely as to certain material evidence as a witness in a suit for divorce between Fred Dorste and wife, lately pending in the Kenton circuit court, in which appellant appeared as attorney for Dorste. Mitchell, alias Keys, had been indicted for perjury in the same court and convicted, under his plea of guilty judgment was pronounced and entered upon the verdict. At the same term, and while the court had yet control over the judgment, upon the motion of the commonwealth, concurred in by the accused in open court, the judgment against Mitchell, alias Keys, was set aside. Appellant's case was tried before a special judge of the Kenton circuit court and a jury. While appellant's case was being tried, the regular judge of the court, who had presided at the trial of Mitchell, alias Keys, entered the order in his case setting aside the judgment. Thereupon the said Mitchell was introduced as a witness against appellant. Without detailing his testimony, it is enough to say that he stated that his testimony in the divorce case was false, and that appellant procured him for pay to so testify, knowing that he knew nothing about the facts deposed to.

Section 1173, Ky. St. (Russell's St. § 3707), prescribes a penalty for the crime of perjury; section 1174 (section 3708) for the crime of false swearing; and sections 1175, 1176 (sections 3709, 3710), relate to false swearing in corporation reports and before election boards.

Section 1177 (section 3711) reads: "If any person shall unlawfully and corruptly cause or procure another, by any means whatever, to commit the offense or offenses described in the four preceding sections, he shall be guilty of subornation of perjury, and confined in the penitentiary for not less than one or more than five years."

Section 1180 (section 3714) reads: "If any person be convicted of any of the offenses described in the seven preceding sections, he shall ever afterwards be disqualified from giving evidence in any judicial proceeding, or from being a witness in any case whatever."

It is now the contention of appellant that the witness Mitchell, alias Keys, was disqualified to testify in this case because of his previous conviction of the crime of perjury.

The word "conviction" has a twofold meaning. One is the determination of the fact of guilt, as by the verdict of a jury (Fanning v. State, 47 Ark. 442, 2 S.W. 70; People v. Rodrigo, 69 Cal. 601, 11 P. 481; Bishop, Stat. Cr.§ 348); or by confession (4 Bl. Com. 362; Ex parte Brown, 68 Cal. 176, 8 P. 829). The other, and the one in which it is employed in speaking of a state of infamy, denotes the final judgment in the prosecution. Com. v. Lockwood, 109 Mass. 323, 12 Am.Rep. 699; Com. v. Gorham, 99 Mass. 420; Quintard v. Knoedler, 53 Conn. 485, 2 A. 752, 55 Am.Rep. 149; State v. Barnes, 24 Fla. 153, 4 So. 560; Francis v. Weaver, 76 Md. 457, 25 A. 413; Reg. v. Hawfalt, 33 Nova Scotia, 165; Com. v. Miller, 6 Pa. Super. Ct. 35; Smith v. Com., 14 Serg. & R. (Pa.) 69; Faunce v. People, 51 Ill. 311; Ammidon v. Smith, 1 Wheat. 447, 4 L.Ed. 132; Nason v. Staples, 48 Me. 123.

Greenleaf, Evidence, § 375, lays it down that "the mere verdict of the jury is not sufficient for this purpose; for it may be set aside, or the judgment may be arrested, on the motion for that purpose. It is the judgment, and that only, which is received as the legal and conclusive evidence of the party's guilt, for the purpose of rendering him incompetent to testify." Rice v. State, 50 Tex. Cr. R. 648, 100 S.W. 771.

When therefore, the judgment of conviction has been set aside by the court rendering it, when it had jurisdiction...