Herring v. State

• Decision Date: 04 March 1904
• Citation: 46 S.E. 876,119 Ga. 709
• Parties: HERRING v. STATE.
• Court: Georgia Supreme Court

46 S.E. 876

119 Ga. 709

HERRING v. STATE.

Supreme Court of Georgia

March 4, 1904

Syllabus by the Court.

1. An affidavit made by one to obtain a criminal warrant may be the basis of an indictment for subornation of perjury, and such indictment is not demurrable because it appears from the indictment that the words "to the best of his knowledge and belief" were inserted in the affidavit, as in the form prescribed for procuring such a warrant, it further appearing that the indictment charged that the alleged suborner and perjurer both knew that the charge contained in the affidavit was false; nor was the indictment in this case demurrable because it contained no averment that the false affidavit was actually used in procuring a warrant, nor because the offense was not set forth with more particularity, nor for any other reason assigned.

2. Sodomy, as defined in section 382 of the Penal Code of 1895 is a crime which may be committed otherwise than per anum.

3. The trial judge committed no material error in charging the jury or in failing to charge or in refusing to charge as requested; and the evidence warranted the verdict.

Error from Superior Court, Bibb County; W. H. Felton, Jr., Judge.

P. Herring was convicted of subornation of perjury, and brings error. Affirmed.

R Douglas Feagin, for plaintiff in error.

Wm. Brunson, Sol. Gen., and Dessau, Harris & Harris, for the State.

TURNER J.

Herring was by the grand jury of Bibb county charged with the offense of subornation of perjury. The charging part of the indictment was as follows: "For that the said Phil Herring did, on the first day of August," 1903, "in the county aforesaid, wilfully, knowingly and feloniously solicit, counsel and procure one J. W. Jordan to commit the offense of perjury, in the manner and form and by the means as follows, to-wit: in this, that the said Phil Herring did, in said State and county, and at the time aforesaid, wilfully, knowingly and feloniously solicit, counsel and procure the said J. W. Jordan to appear on the first day of August [1903] before W. A. McClellan, a justice of the peace of the 564th district, G. M., in and for said county, in a certain judicial proceeding, for the purpose of making and swearing to and subscribing to an affidavit that a warrant might be issued thereon by the said W. A. McClellan, justice of the peace afore said, in the name of the State of Georgia against Sam Dunlap for the offense of sodomy, and the said W. A. McClellan being then and there a judicial officer fully competent and authorized by law to administer a lawful oath, and the said W. A. McClellan, justice of the peace as aforesaid, having then and there jurisdiction of said judicial proceeding; and thereupon, a lawful oath being then and there administered to the said J. W. Jordan by the said W. A. McClellan, justice of the peace as aforesaid in said judicial proceeding, the said Phil Herring did then and there solicit, counsel and procure the said J. W. Jordan to swear, and the said J. W. Jordan being so solicited, counseled and procured by the said Phil Herring, did wilfully, knowingly, absolutely and falsely swear, amongst other things, in substance and effect the following: that is to say, that the said Sam Dunlap, to the best of the knowledge and belief of the said J. W. Jordan, did on the 14th day of July, 1903, in the county of Bibb and State of Georgia, commit the offense of sodomy, all of which said matter was then and there wilfully, knowingly and feloniously sworn to, in substance and effect, by the said J. W. Jordan, being then and there material to the issue in the judicial proceeding aforesaid, the said J. W. Jordan being then and there in said judicial proceeding making, swearing and subscribing to an affidavit before the said W. A. McClellan, justice of the peace as aforesaid, for the purpose of having a warrant issued against the said Sam Dunlap for the offense of sodomy; and the jurors aforesaid, on their oaths aforesaid, do say that the said Sam Dunlap did not, in truth and in fact, on the 14th day of July in the year 1903, in the county of Bibb and State of Georgia, commit the offense of sodomy; and the jurors aforesaid, on their oaths aforesaid, do say that the said J. W. Jordan then and there well knew that the said Sam Dunlap did not commit the offense of sodomy, as the said J. W. Jordan did then and there swear, as aforesaid, and the said J. W. Jordan, then and there well knew that he, the said J. W. Jordan, did not believe that the said Sam Dunlap had committed the offense of sodomy, as the said J. W. Jordan had sworn in said affidavit, as aforesaid; and the jurors aforesaid, upon their oaths aforesaid, do further say that the said Phil Herring, on said first day of August, 1903, well knew that said testimony which he, the said Phil Herring, had so procured, counseled and solicited and induced the said J. W. Jordan to deliver, make, subscribe and swear to in said affidavit and in said judicial proceeding was false, and the said Phil Herring well knew that the said J. W. Jordan well knew that said testimony was false, and that he, the said Phil Herring, and J. W. Jordan both well knew that the said Sam Dunlap did not, on the 14th day of July, 1903, commit the offense of sodomy, as the said J. W. Jordan had sworn in said affidavit and in said judicial proceeding; and the jurors aforesaid on their oaths aforesaid, do further say that the said Phil Herring well knew that at the time the said J. W. Jordan subscribed to said affidavit in said judicial proceeding, which was so solicited, counseled and procured as hereinbefore set forth, that the said J. W. Jordan knew that the same was false and that the said Phil Herring knew that the same was false; and the jurors aforesaid do further say that the said Phil Herring did wilfully, knowingly and feloniously counsel, procure, solicit and induce the said J. W. Jordan to deliver said false testimony and make, subscribe and swear to said affidavit in said judicial proceeding at the time aforesaid, then and there intending and desiring that said false testimony should be used for the purpose of procuring a warrant to be issued as hereinbefore set forth against the said Sam Dunlap for the offense of sodomy, contrary to the laws of said State," etc.

The affidavit upon which the charge of perjury rested was as follows:

"State of Georgia, Bibb County. Personally appeared J. W. Jordan who, on oath, saith that to the best of his knowledge and belief Sam Dunlap did commit the offense of sodomy in the county of Bibb on the 14th day of July, 1903, and this deponent makes this affidavit that a warrant may issue for his arrest.

[Signed] J. W. Jordan.

Sworn to and subscribed before me this 1st day of August, 1903.

[Signed] W. A. McClellan, J. P."

To this indictment the plaintiff in error filed an elaborate demurrer, containing many grounds, which demurrer was overruled, and he excepted. The case was then tried by a jury, and he was found guilty. Thereupon he made a motion for a new trial on various grounds, which was refused, and to this refusal he excepted.

His counsel, in a supplemental brief, insists that grounds 1, 2, and 3 of the demurrer to the indictment are sufficient to dispose of the case, and these grounds will now be considered. They are as follows: "(1) Said indictment charges defendant with no crime under the laws of Georgia. (2) Said indictment is void on its face, because against public policy, and for the reason that an affidavit sworn to not absolutely, but to the best of affiant's knowledge and belief, and made for the purpose of procuring a warrant for the arrest of an alleged criminal, cannot be made the basis of an indictment for perjury. (3) Said indictment is contradictory upon its face, and in a material point, in that it charges that J. W. Jordan 'did willfully, knowingly, absolutely, and falsely swear, amongst other things, in substance and effect the following, that is to say: that the said Sam Dunlap, to the best of the knowledge and belief of the said J. W. Jordan, did on the 14th day of July, 1903, in the county of Bibb and state of Georgia, commit the offense of sodomy.' Defendant contends that swearing to the best of one's knowledge and belief is not swearing absolutely, and that said indictment for this reason charges no crime." The important question in this case is whether Jordan could be convicted of perjury under the form of affidavit above given. The other grounds of the demurrer will be generally treated hereinafter, so far as they appear material and necessary to the decision of this case.

1. The nice and subtle technicalities with which some of the courts in the past surrounded the crime of perjury rendered a conviction for that offense well-nigh impossible. It is probable that these niceties were devised by the common-law courts on account of the barbarous punishment which was visited upon persons convicted of this offense. The punishment has been humanely mitigated, and at the same time the class of persons competent to testify in court has been greatly enlarged. As all faith in judicial proceedings rests upon the final sanction of an oath, it is good policy, not only for this reason, but for those above indicated, to facilitate, in so far as may be consistent with law and justice, convictions for this crime. In order to simplify the practice in perjury cases, the British Parliament in 1750 (which was before our adopting act) deemed it expedient to declare by 23 Geo. 2, c. 11, that: "Whereas, by reason of difficulties attending prosecutions for perjury and subornation of perjury, those heinous crimes have frequently gone unpunished, whereby wicked and evil-disposed persons are daily more and more emboldened to commit the same, to the great...