Goolsby v. State, 7 Div. 576

• Court: Alabama Court of Appeals
• Writing for the Court: BRICKEN, P.J.
• Citation: 17 Ala.App. 545,86 So. 137
• Parties: GOOLSBY v. STATE.
• Docket Number: 7 Div. 576
• Decision Date: 29 June 1920

86 So. 137

17 Ala.App. 545

GOOLSBY v. STATE.

7 Div. 576

Court of Appeals of Alabama

June 29, 1920

Appeal from Circuit Court, Randolph County; Lum Duke, Judge.

Thomas E. Goolsby was convicted of perjury, and he appeals. Reversed and remanded.

R.J. Hooton, of Roanoke, for appellant.

J.Q Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

BRICKEN P.J.

The defendant was convicted of the offense of perjury. Under the statute (Code 1907, § 7543) "any person who willfully and corruptly swears or affirms falsely *** in regard to any material matter or thing, upon any oath or affirmation authorized by law, *** must, on conviction, be imprisoned in the penitentiary for not less than two nor more than five years."

The indictment was not challenged by demurrer or otherwise; hence no question is presented on this appeal as to its sufficiency. As the indictment appears in the record before us, it inaptly uses the word "corruptfully" instead of the word "corruptly," as provided by statute.

In a prosecution for perjury the evidence, as in all criminal cases, must be of the character which is sufficient to convince the jury beyond a reasonable doubt and to a moral certainty that the defendant is guilty as charged. The evidence in a case of this character must show: (1) That a lawful oath had been administered to the defendant by an officer having the authority to administer it; (2) that under said oath the witness must have sworn falsely as to a material matter involved in some judicial proceeding or legal trial; (3) that such false swearing must have been willfully and corruptly done by the defendant within the period of time covered by the indictment, and in the county where the prosecution is pending.

In other words, perjury is a corrupt, willful, false oath, taken in a judicial proceeding, in regard to a matter or thing material to a point involved in the proceeding. In the event of the failure of the proof to establish either of these propositions, the case must fall.

An oath is defined to be:

"A solemn adjuration to God to punish the affiant if he swears falsely. The sanction of the oath is a belief that the Supreme Being will punish falsehood; and whether that punishment is administered by remorse of conscience or in any other mode in this world, or is reserved for the future state of being, cannot affect that question, as the sum of the matter is a belief that God is the avenger of falsehood." Beeson v. Moore, 132 Ala. 391, 31 So. 456; B.R., L. & P. Co. v. Jung, 161 Ala. 461 478, 49 So. 434, 18 Ann.Cas. 557.

In 5 Words and Phrases, p. 4871, is found the further definition:

"An oath is a declaration or promise made by calling on God to witness what is said. *** An oath is defined to be an outward pledge, given by the person taking it, that his attestation or promise is made under an immediate sense of his responsibility to God. *** The term 'oath,' in its broadest sense, includes all forms of attestation by which a party signifies that he is bound in conscience to perform an act faithfully and truthfully, and that the person who takes it imprecates the vengeance of God upon him if the oath taken is false."

Some form of an oath has always been required, for the reason that only by some unequivocal form could the sworn be distinguished from the unsworn averments, and the sanctions of religion add their solemn and binding force to the act. The following form is prescribed in Alabama, and has been in use for many years, to wit:

"You do solemnly swear (or affirm) that the evidence you shall give in the cause now pending wherein A.B. is plaintiff and C.D. defendant, shall be the truth, the whole truth, and nothing but the truth. So help you God." Code 1907, § 4730

--the universal custom being that the witness is required to hold up his right hand while the oath is being administered to him.

In the instant case it is earnestly insisted that the defendant was never sworn by the commissioner before whom it is alleged that the false swearing complained of took place. The occurrence as detailed by the defendant and his witnesses is that the so-callel depositions were prepared or taken down in writing in the office of an attorney in Roanoke and the attorney, a state's witness, also testified "that defendant, with other witnesses, signed the testimony in my office;" and after it had been taken down and signed they all went to the bank, where E.M. Moore, the commissioner, was. The defendant...