Hemphill v. State

• Decision Date: 23 April 1894
• Citation: 71 Miss. 877,16 So. 261
• Court: Mississippi Supreme Court
• Parties: ANDY HEMPHILL v. THE STATE

16 So. 261

71 Miss. 877

ANDY HEMPHILL v. THE STATE

Supreme Court of Mississippi

April 23, 1894

FROM the circuit court of Choctaw county. HON. C. H. CAMPBELL Judge.

Appellant was convicted of perjury, and appeals. The facts appear in the opinion. The instruction for the state referred to in the opinion is as follows: "The court instructs the jury that perjury is the wilful and corrupt false swearing, under oath or affirmation legally administered, in a proceeding matter and cause depending in any court of law or equity and before any tribunal created by law or the constitution, and can be established by two witnesses, or by one witness and corroborating circumstances; and if the jury are satisfied beyond any reasonable doubt that the guilt of this defendant has been shown by two witnesses, or by one witness and corroborating circumstances, they should convict."

The second instruction for the defendant was as follows "The court instructs the jury that before they can convict of the crime of perjury, it must be shown to their satisfaction by the testimony of two witnesses, or the testimony of one witness and corroborating circumstances that the oath was false."

Judgment affirmed.

Frank Townsend, Daniels & Richardson and J. W. Barron, for appellant.

1. The indictment is for swearing falsely before the grand jury. It matters not how many falsehoods appellant may have sworn to at other times, he cannot be convicted under this indictment, unless his testimony before the grand jury was knowingly false. The state must peril its case somewhere, and stand upon it. 1 Greenleaf on Ev., § 259.

2. It was error to refuse to allow evidence of the conviction of Weeks. He had pleaded guilty to a charge of unlawful retailing, which occurred about the time appellant swears he bought whisky from him. There is an issue between the appellant and Weeks, and it was competent to break the equilibrium by showing that Weeks was engaged in unlawful retailing. It tends to discredit the testimony now given, that he had not sold to accused.

3. The court erred in granting the instruction asked for the state. It was calculated to mislead, because of its failure to state that the false oath must be shown by the testimony of two witnesses or by the testimony of one witness and corroborating circumstances. See Brown v. State, 57 Miss. 424; 2 Bish. on Crim. Pro., § 929.

Frank Johnston, attorney-general, for the state.

Testimony that Weeks, on another occasion, had unlawfully sold whisky to one Greer, and that he had pleaded guilty for unlawfully retailing in such case, is not relevant to the inquiry here, which is whether accused swore falsely that Weeks had sold him whisky.

I submit that the first instruction for the state contains a correct definition and explanation of the crime of perjury.

The conviction is supported by the evidence. It is true that proof of contradictory oaths is not sufficient, but, in...