Gardner v. State
| Decision Date | 15 October 1906 |
| Parties | GARDNER v. STATE. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Sebastian County; Styles T. Rowe, Judge.
L. F. Gardner was convicted of perjury, and he appeals. Reversed and remanded.
Brizzalara & Fitzhugh, for appellant. Robert L. Rogers, Atty. Gen., and G. W. Hendricks, for the State.
Appellant, L. F. Gardner, was indicted for the crime of perjury, and from a judgment of conviction he appeals to this court. The Attorney General confesses error.
The indictment charged appellant with having testified falsely concerning a material matter in a judicial proceeding pending in the police court of Ft. Smith, wherein said city of Ft. Smith was plaintiff and said Gardner was defendant, "charged with having been guilty of disorderly conduct, and with having carried a certain pistol as a weapon in said city of Ft. Smith." The evidence shows, both by the record of the police court and by the oral testimony of witnesses, that appellant was arrested by a police officer of the city and taken before the police court, where he was put on trial for the offense of disorderly conduct in violation of an ordinance of the city; that the testimony introduced on the part of the plaintiff in that trial tended to show that appellant was guilty of disorderly conduct on a railroad passenger train inside the city limits, and that he had a pistol which he drew and brandished; that he testified in his own behalf as a witness and denied all of said charges, whereupon the police judge suspended said trial, and caused appellant to be surrendered to the state authorities to be prosecuted on this charge of perjury. Appellant demurred to the indictment, and it is urged that the demurrer should have been sustained on the ground that the indictment alleges that appellant was on trial before the police court for two separate offenses, viz., disorderly conduct and carrying a weapon, at the time he testified falsely. If we concede that the indictment charges that appellant was being tried for two separate offenses at the same time, it does not follow that he could not be guilty of perjury for testifying falsely concerning a material matter in such irregular trial. If the police court had jurisdiction of the two offenses, even though they were improperly joined in the same proceedings, willful and corrupt false swearing to a material matter in the cause would make the crime of perjury complete. It is only where the court has no jurisdiction of the cause that the giving of such false testimony is not criminal. Buell v. State, 45 Ark. 336. Mere irregularities in the proceedings do not prevent the giving of false testimony from being criminal. 2 Bishop Cr. Law, § 1028; Maynard v. People, 135 Ill. 416, 25 N. E. 740; State v. Lewis, 10 Kan. 157; State v. Peters, 107 N. C. 876, 12 S. E. 74; State v. Lavalley, 9 Mo. 834; State v. Rowell, 72 Vt. 28, 47 Atl. 111, 82 Am. St. Rep. 918; Sig v. Meek, 9 C. & P. 513.
Nor can we agree with the contention of counsel for appellant that the language of the indictment alleged two offenses charged against the defendant in the proceedings in the police court, and that the same was descriptive of the offense of perjury and must be strictly proved, as alleged. In other words, that it is alleged that, in the proceedings in which the false testimony was given, the defendant was charged with two offenses — disorderly conduct and carrying a weapon — and that it devolved upon the state to prove it, whereas the proof shows that he was on trial for only the offense of disorderly conduct. This position is untenable. The purpose of the part of the indictment descriptive of the offense is to fully apprise the accused of the charge made against him, and to protect him from a second prosecution for the same offense. 1 Bishop Cr. Proc. § 507. Our statute provides that "no indictment is insufficient, nor can the trial, judgment or other proceeding thereon be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the...
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