Herndon v. State

• Decision Date: 25 July 1916
• Citation: 72 So. 833,72 Fla. 108
• Parties: HERNDON v. STATE.
• Court: Florida Supreme Court

72 So. 833

72 Fla. 108

HERNDON v. STATE.

Florida Supreme Court

July 25, 1916

Rehearing Denied Nov. 2, 1916.

Error to Criminal Court of Record, Hillsborough County; Lee J Gibson, Judge.

J. A Herndon was convicted of perjury, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Under the provisions of section 3979 of the General Statutes of 1906, the defendant in a criminal prosecution may at his option be sworn as a witness in his own behalf, 'and shall in such case be subject to examination as other witnesses.'

Where an accused on trial voluntarily offers himself as a witness on his own behalf, he thereby voluntarily subjects himself to any legitimate cross-examination, whether such cross-examination tends to criminate him or not.

Where a defendant in a criminal prosecution testifies as a witness in his own behalf, the state has the right on cross-examination to interrogate him as to whether he has previously been convicted of a criminal offense.

Where a defendant in a criminal prosecution offers himself as a witness in his own behalf, he may be contradicted and impeached as any other witness, and may be cross-examined as to his former conviction on a similar charge, even in another state.

To constitute perjury for false swearing in the trial of a cause the fact sworn to need not be material to the main issue; but if it be conducive to the point in issue or a guide to the court or jury, even though circumstantial, it is perjury.

If the defendant in a criminal prosecution offers himself as a witness in his own behalf, he may be asked on cross-examination if he has been convicted of another offense, especially of a similar character to the offense for which he is being tried, and if he answers such question falsely, he may be convicted of perjury.

COUNSEL Fletcher & O'Neill, of Tampa, for plaintiff in error.

T. F West, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.

OPINION

SHACKLEFORD J.

J. A Herndon seeks relief here from a conviction of the crime of perjury, having been found guilty upon a trial before a jury and sentenced to imprisonment in the state prison for a term of five years. Four errors are assigned, all of which are argued together; the defendant stating in his brief that his 'argument applies to covers each and every one of the assignments of error and the matters involved in the trial, to which exception has been taken, are so interwoven that in arguing any one of the assignments of error, it involves the same matters considered in each of the assignments of error.' We shall follow the example of the defendant and treat the assignments together.

The evidence adduced establishes that during the trial of the defendant in the month of November, 1914, in the same court in which his trial for perjury took place, for the crime of larceny of cattle, the defendant took the stand as a witness in his own behalf and upon cross-examination by the state if he had ever been convicted in the state of South Carolina for stealing live stock, to which question the defendant answered 'No,' that he had not been convicted in such state of such crime, and in response to a further question by the state as to whether or not he had ever lived in South Carolina the defendant stated that he had not. The evidence further establishes beyond question that the defendant had lived in the state of South Carolina and had been convicted at a term of court of General Sessions, held at Hampton courthouse, in Hampton county, S. C., in the month of June, 1901, of the crime of larceny of a mule, and had been sentenced to 'be imprisoned at labor upon the public works of the county of Hampton for two (2) years and pay a fine of one dollar, or be imprisoned in the state penitentiary at hard labor for two (2) years and pay a fine of one dollar.' It is certainly not necessary and does not seem advisable to discuss the testimony of the different witnesses in detail. In addition to what we have said, it is sufficient to state that upon his trial for the crime of perjury the defendant offered himself as a witness in his own behalf, whereupon the following proceedings took place:

'Direct Examination.

'Questions by Mr. Samuel T. Fletcher:

'Q. What is your nmae? A. J. A. Herndon. Q. Where do you live, Mr. Herndon? A. Port Tampa. Q. What is your age? A. I am 38 years old. Q. Where were you born, Mr. Herndon? A. In Chatham county, Ga. Q. Were you ever in Hampton county, S. C.? A. Yes, sir. Q. Please state whether or not you were tried and convicted of the larceny of a mule in Hampton, S. C., in the summer of 1901? A. Yes, sir; I was. Q. Were you found guilty? A. Yes, sir. Q. Were you sentenced? A. Yes, sir. Q. For how long? A. Two years. Q. How long did you serve? A. I served about nine months. Q. How were you discharged? But to the question as propounded the state did then and there object on the grounds: First, that the same called for immaterial and irrelevant testimony; second, that the testimony sought to be elicited should be proven in a legal way by a certified copy, and that then the same would be immaterial as well; and, third, that the same was not proper to be proven by parol testimony.

'Thereupon counsel for the defendant made the following statement:

'By Mr. Fletcher: I submit that it is material for the reason that a state's witness testified that defendant was pardoned by the Governor, and that the Governor, in the exercise of his power, reduced his time to something like a year, or less. That was testified to by Mr. Hiers. That having gone to the jury, I submit that it is proper for this witness to testify to this jury whether or not that was voluntary on the part of the Governor, or whether he made any effort, and to explain how it came about that he obtained the pardon and did not serve the two years. I submit that the testimony is material for the further reason that when Mr. Herndon was asked this identical question by the county solicitor that he asked permission of your honor--and I know that your honor never anticipated the seriousness of it--for the privilege of asking the solicitor a question, and the court told him, as testified to here by a witness, to answer the question as any other witness, and that he had no right to interrogate the county solicitor. When he explains why he asked the privilege of interrogating the county solicitor, the materiality of this testimony will be more apparent to the court.

'And the said court sustained said objections, and would not permit said question to be answered, by the following ruling, to wit:

'By the Court: I do not think it is proper to go into the question of why he was pardoned or how he was pardoned. The only question here is whether he testified falsely or not. To which ruling the defendant then and there excepted.'

The defendant then proceeded to testify still further on his direct examination, and was also cross-examined at considerable length and gave additional testimony upon his redirect examination, but we see no occasion for setting out any further portions of the defendant's testimony or discussing the same. Witnesses on behalf of the state had previously testified that the defendant did not serve his full sentence of two years, but that the Governor of South Carolina in the exercise of his executive clemency had reduced the defendant's term to about one year. We do not see wherein the question of why this was done is material.

One of the grounds of the motion for a new trial, which was overruled, questions the correctness of a portion of the general charge of the court numbered 6. We copy such charge so numbered in full, as otherwise the portion complained of would hardly be intelligible. Such charge is as follows:

'6. The court further instructs you that befor you can find the defendant guilty, as charged in the information in this case you must be satisfied from the evidence in the case, beyond a reasonable doubt, to all the material allegations contained in the information. And in this connection, however, the court instructs you that in the trial of a person charged with larceny in a court of competent jurisdiction in this state, it is material whether or not the defendant had...