Harris v. State

• Decision Date: 21 June 1915
• Docket Number: (No. 57.)
• Citation: 177 S.W. 1144
• Parties: HARRIS v. STATE.
• Court: Arkansas Supreme Court

177 S.W. 1144

HARRIS v. STATE.

(No. 57.)

Supreme Court of Arkansas.

June 21, 1915.

Appeal from Circuit Court, Union County; Chas. W. Smith, Judge.

Gordy Harris was convicted of perjury, and he appeals. Reversed, and cause dismissed.

Geo. M. Le Croy, of El Dorado, Ark., for appellant. Wm. L. Moose, Atty. Gen., and John P. Streepey, Asst. Atty. Gen., for the State.

McCULLOCH, C. J.

This is an appeal from a judgment convicting the defendant, Gordy Harris, of the crime of perjury. The substance of the charge set forth in the indictment is that in a certain criminal case on trial in the circuit court of Union county, wherein one Hez McLemore was being tried upon the charge of grand larceny in stealing a cow, the property of C. H. Murphy, the defendant herein was sworn as a witness and testified that he had sold one Cage McLemore 10 or 11 head of cattle, and no more, whereas in truth and in fact he had sold to Cage McLemore 20 or 21 head of cattle. It is alleged in the indictment that the said testimony was false, and that it was material to the issue presented in that trial.

There are numerous assignments of error, but we content ourselves with the discussion of the sole question whether or not the alleged false testimony was material to the issue in the trial in which it was given, for we have reached the conclusion that a decision of that question determines the case.

The testimony shows the following state of the record in the case of State v. Hez McLemore, in which defendant's alleged false testimony was given: Hez McLemore was accused of stealing a certain cow, described as a cow with a crumpled horn and branded with the letter "M" on the left hip, which said cow was alleged to have been the property of C. H. Murphy. Murphy and Cage McLemore, the brother of Hez, had been engaged in the cattle business and had purchased several hundred head of cattle with money furnished by Murphy. The agreement between them was that Murphy should furnish the money, and Cage McLemore buy the cattle and put them in the range, and that, when sold, there should be a certain division of the profits. The proof shows that there were as many as 245 head of cattle in the range at one time, but, when they were finally gotten up, there were 83 of them missing. There was subsequently another contract entered into between those parties whereby the legal title of Cage McLemore passed to Murphy, and he became the sole owner of the cattle. The cow with the crumpled horn was, according to the proof adduced by the state in that case, one of the number purchased by Cage McLemore for Murphy, and was one of the 83 missing cattle. There was an improvised slaughter pen concealed in a thicket near Hez McLemore's house, and the crumpled horns of this cow were found at that place. The theory of the state was that all of the missing cattle were stolen from the range by Hez McLemore and were butchered at the concealed slaughter pen in the thicket near his house. The defendant, Gordy Harris, was also indicted for participation in the offense. Defendant is a brother-in-law of the two McLemores, and in the trial of Hez he was introduced as a witness in the latter's behalf. He testified that he bought from one Sandy Simmons a cow with a crumpled horn and butchered it himself at the concealed slaughter pen in question, and that the horns found by the state's witnesses at the pen are those that were taken from the Sandy Simmons cow. Hez McLemore was convicted in that trial, but on appeal to this court the judgment of conviction was reversed on account of two errors of the court. One was the giving of an instruction telling the jury, in substance, that they could convict the defendant in that case if they found that he had stolen any cow, the property of Murphy, within three years before the finding of the indictment. McLemore v. State, 111 Ark. 457, 164 S. W. 119.

The defendant, Harris, testified in the trial, in addition to that part of his testimony already referred to, that he and Hez McLemore had been buying cattle together and butchering the same and peddling the meat at Felsenthal, Ark. He testified that there had been bought 44 head of cattle, some of which belonged to him individually and the remainder to him and Hez in partnership, and that out of that number they had butchered 15 or 18. His statement was that he had butchered 10 or 12 of his individual cattle, and that 5 or 6 of the partnership cattle had also been butchered.

The testimony which is now alleged to have been false was brought out on cross-examination. He was...