Hicks v. State

• Citation: 86 Ala. 30,5 So. 425
• Parties: HICKS v. STATE.
• Decision Date: 24 January 1889
• Court: Supreme Court of Alabama

5 So. 425

86 Ala. 30

HICKS v. STATE.

Supreme Court of Alabama

January 24, 1889

Appeal from circuit court, Elmore county; JAMES R. DOWDELL, Judge.

An indictment charged that defendant, Ann Hicks, on her examination as a witness, *** before P., a duly-appointed commissioner to take testimony in a divorce suit "in which one William Shirley was plaintiff, and Annie Shirley was defendant, being duly sworn by said P., who had authority to administer such oath, falsely swore that," at a certain time and place, she saw one M. in the act of adultery; "the matters so sworn to being material, and the oath of said Ann Hicks in relation to such matters being willfully and corruptly false." Defendant demurred to the indictment, because what M. "did could not be material in the trial of a divorce case pending between William Shirley and Annie Shirley;" and, the demurrer being overruled, she pleaded not guilty. On the trial the prosecution offered the defendant's deposition, taken in said suit, in which she swore, in substance, as alleged in the indictment, to an act of adultery between M. (afterwards Mrs. Shirley) and Lewellen Jordan. The bill of exceptions adds: "The said bill in chancery was for divorce on the ground of adultery, and there was other evidence tending to show, in said cause, acts of adultery after marriage. Defendant objected to the admission of said evidence, because the same was not material to the issue being tried in said chancery cause," and she excepted to the overruling of the objection.

T L. Bulger and Watts & Son, for appellant.

T N. McClellan, Atty. Gen., for the State.

SOMERVILLE J.

The indictment, which is one charging the defendant with perjury substantially follows the form prescribed by the Code. Crim Code 1886, form No. 67, p. 275; Id. § 3908. The substance of the proceedings in which the alleged false oath was taken is sufficiently averred in the statement that it was before one William Penick, who had been duly appointed commissioner by the register in chancery, one Albert Wilson, with authority to take the written testimony of the defendant in a civil action for divorce pending in the chancery court of Elmore county, in which one William Shirley was plaintiff, and Annie Shirley was defendant. This averment is descriptive of the occasion of the alleged perjury, of the tribunal in which the action was pending, and of the jurisdiction of the officer by whom the oath was administered, and is intended for identification, to show that the oath was not extrajudicial. It is not wanting in any of the elements of reasonable certainty, which is all the law requires. Nor...