Helton v. Commonwealth

• Decision Date: 16 January 1895
• Parties: HELTON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

29 S.W. 331

HELTON v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 16, 1895

Appeal from circuit court, Magoffin county.

"Not to be officially reported."

Smith Helton was convicted of perjury, and appeals. Affirmed.

A. H Howard, for appellant.

Wm. J Hendrick, for the Commonwealth.

GRACE J.

This is an appeal by Smith Helton from a judgment of the Magoffin circuit court, whereby, upon a verdict of guilty by jury, he was sentenced to confinement in the state penitentiary for a term of one year upon a charge of perjury. The indictment is in the usual form, containing, among other necessary averments, one that the false oath charged to have been given and made by said Helton was in the Magoffin court at a previous term, and upon the trial of accused in the said court upon an indictment theretofore pending in said court against said Helton for carrying concealed upon his person a deadly weapon, being on said trial duly sworn by the judge of said court. The instructions were in the usual form in perjury prosecutions, warning the jury that a conviction could only be had on the testimony of two witnesses, or of one and strong corroborating circumstances, that the oath formerly made by said Helton on said trial was knowingly and corruptly false, and such testimony appears upon the trial. The original indictment for carrying the concealed weapon was not read in evidence to the jury on this trial, neither the orders of the court showing its pendency, and the trial of accused under same. All these matters were testified to orally; and while the accused, in his motion for a new trial makes one of his grounds for same the admission of improper testimony against him, yet the bill of exceptions on file fails to show any objection to this testimony on the trial or any exceptions by accused to the ruling of the court on the same; and, without this appearing in the bill, the uniform practice of this court is to disregard it. It appears that on the calling of the case for trial accused filed an affidavit for continuance, on the ground of absent witnesses, who lived in another county. This motion was overruled by the court, and exceptions taken; doubtless on the ground that due diligence was not shown to procure the attendance of said witnesses. In this view we concur with the court below.

A motion for a new trial was also made, one of the grounds for same being that one of the jurors trying the cause...