Fudge v. State

• Decision Date: 02 March 1909
• Citation: 57 Fla. 7,49 So. 128
• Parties: FUDGE v. STATE.
• Court: Florida Supreme Court

49 So. 128

57 Fla. 7

FUDGE v. STATE.

Florida Supreme Court

March 2, 1909

Headnotes Filed April 26, 1909.

In Banc. Error to Circuit Court, Jackson County; J. Emmet Wolfe Judge.

Phillip Fudge was convicted of perjury, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

That part of the indictment for perjury which expressly alleges the falsity of the testimony given by the accused is technically called the 'assignment.' This is the gist of the offense, not mere inducement. Consequently the allegation must be direct and specific, not in terms of uncertain meaning, or by way of implication.

It is necessary in an indictment for perjury to expressly and positively negative the truth of the alleged false swearing by stating the facts by way of antithesis. A general denial that the testimony in question was false is not sufficient. In addition to an averment that the testimony of the accused was false, the indictment should also set forth the truth in regard to the matter at issue. Thus, after stating the substance of what was sworn to, the indictment proceeds 'Whereas in truth and in fact,' adding wherein such matter was false.

The requirement that, in an indictment for perjury, it is necessary to make direct and specific allegations negativing the truth of the alleged false testimony by setting forth the true facts by way of antithesis is not a mere matter of form but is the very essence of the indictment, and necessary in order to inform the accused of the nature and cause of the accusation against him, by setting out wherein or in what regard his testimony was claimed to be false.

Instead of saving merely that the accused was 'sworn as a witnees,' etc., the indictment for perjury should allege at least that he was 'duly sworn,' or 'in due form of law sworn,' or words of equivalent import, especially where the indictment does not attempt to set forth the words of the oath.

COUNSEL

Liddon & Carter, for plaintiff in error.

Park M. Trammell, Atty. Gen., for the State.

OPINION

PARKHILL J.

On the 19th day of June, A. D. 1907, the grand jurors impaneled and sworn in and for the circuit court of Jackson county returned into court an indictment in the words and figures as follows:

'In the Name and by the Authority of the State of Florida.

'In the Circuit Court of the First Judicial Circuit of Florida, Spring Term, A. D. 1907.

'The grand jurors of the state of Florida, sworn and inquiring in and for the body of the county of Jackson, upon their oaths do present: That on the 8th day of May, A. D. 1907, there was then and there pending and on trial before the county judge of Jackson county, Florida, in the county judge's court a certain cause, wherein the state of Florida was plaintiff, prosecuting, and one Albert Cooper was defendant. That the charge against the said Albert Cooper was for unlawfully carrying a concealed weapon in said county of Jackson, state of Florida. That the said cause came on for trial before the said county judge and a jury, on the 8th day of May, 1907. That the said county judge's court and the jurors selected in said case then and there had jurisdiction to try said case and determine the guilt or innocence of the defendant. That before the selection of said jury, and before the said trial was entered into by said jury, the said Albert Cooper had entered a plea of not guilty to the aforesaid charge. That on the said 8th day of May, A. D. 1907, during the trial of said cause, that Phillip Fudge was called and sworn as a witness in said cause, by the Honorable J. C. McKinnon, judge of the said court, a person duly authorized to administer oaths. That after being so sworn as a witness in said cause the said Phillip Fudge then and there testified and swore in substance as follows: 'I was present on the occasion inquired about (meaning the time and place when the said Albert Cooper was charged with having carried a concealed weapon). I was right with Albert Cooper; right with him. He had no pistol at the time and place. He drew no pistol and made no demonstration with any pistol whatever. There was no pistol drawn. He did not draw a pistol from his bosom.' That the said sworn statement and testimony of the said Phillip Fudge as then given in was then and there false. That the said Phillip Fudge knew same to be false when he so swore and testified. That the said Phillip Fudge then and there knowingly, willfully, designedly, and corruptly swore falsely as aforesaid in said cause and proceeding, for the purpose and with the intention of deceiving and misleading the court and the jury who were then and there trying and to determine said cause, and for the purpose of causing a verdict of acquittal to pass and to be rendered in favor of the said Albert Cooper in said proceedings--contrary to the form of the statute in such cases made and provided, to the evil example of all others in like case offending, and against the peace and dignity of the state of Florida.

'J. Walter Kehoe,

'State Attorney for the 1st Judicial Circuit of Florida, Prosecuting for Said State.'

A motion to quash the indictment was overruled. The defendant pleaded not guilty, and was tried and convicted. Motions in arrest of judgment and for new trial were overruled. The defendant was sentenced to the state prison for three years, and seeks relief here by writ of error.

The overruling of the motion to quash the indictment is assigned as error.

The defendant moved the court to quash the indictment on the ground, among others, that 'there is no specific denial of the truth of the matter sworn to, or any negativing of the truth of the matter sworn to.'

That part of the indictment for perjury which expressly alleges the falsity of the testimony given by the accused is technically called the 'assignment.' This is the gist of the offense, not mere inducement; consequently the allegation must be direct and specific, not in terms of uncertain meaning, or by way of implication.

It is necessary, in an indictment for perjury, to expressly and positively negative the truth of the alleged false swearing, by stating the facts by way of antithesis. A general denial that the testimony in question was false is not sufficient. In addition to an averment that the testimony of the accused was false, the indictment should also set forth the truth in regard to the matter at issue. Thus, after stating the substance of what was sworn to, the indictment proceeds, 'Whereas in truth and in fact,' adding wherein such matter was false. Especially must the indictment so negative the truth of the alleged false statement when the false matter consists of several distinct and separate propositions.

An illustration of the proper practice in this regard is found in the case of Commonwealth v. Still, 83 Ky. 275 where it is said: 'It being charged in an indistment for false swearing that the defendant testified falsely that he did not see a game of cards played at a particular time and place, it was not sufficient to state merely that his statements were false, and known by him to be false; but it should have been averred that the accused did see the game of cards played at the time and place mentioned.' In commenting upon the case of Commonwealth v. Still, the Court of Appeals of Kentucky, in Ferguson v. Commonwealth, 1 S. W. 435, said: 'It is urged that this case is unlike that one in this, to wit, that there the accused had testified negatively to a matter, as that he did not see the gaming charged in the indictment, while here he testified affirmatively to an alleged transaction. We, however, perceive no ground for a distinction in the two cases; and, whether the accused has sworn affirmatively or...