Hilliard v. United States

• Decision Date: 07 February 1928
• Docket Number: No. 4995.,4995.
• Citation: 24 F.2d 99
• Parties: HILLIARD v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

24 F.2d 99 (1928)

HILLIARD v.UNITED STATES.

No. 4995.

Circuit Court of Appeals, Fifth Circuit.

February 7, 1928.

Frank Clark and Frank Clark, Jr., both of Miami, Fla., for plaintiff in error.

Wm. M. Gober, U. S. Atty., of Tampa, Fla., and Francis L. Poor, Asst. U. S. Atty., of Jacksonville, Fla.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

FOSTER, Circuit Judge.

Plaintiff in error, hereafter called defendant, was convicted of perjury after the overruling of a demurrer to the indictment, to which action of the court error is assigned.

The indictment is inartificially drawn.After the jurisdictional and other formal allegations, which show that defendant was a witness on the trial of certain named persons, the indictment quotes some 20-odd questions and answers, forming part of defendant's testimony, and then follows this allegation as to the falsity of the testimony:

"That at the time aforesaid, when he, the said Roy G. Hilliard, * * * was testifying, he then and there well knew that the answers given to the questions propounded to him as aforesaid were false and untrue in this, to wit, that he, the said Roy G. Hilliard, * * * on the 13th day of March, 1923, did sign an affidavit in words and figures following, to wit."

What purports to be an affidavit in hÊc verba, which takes up over three pages of the printed transcript, is set out, but, aside from the above, there is nothing in the indictment to show wherein the testimony is false.There are some statements in the affidavit that might be construed as contradicting a part of the testimony, but nothing specifically doing so, and it does not appear from the testimony that defendant denied making the affidavit as a whole.It is not averred that the affidavit is either true or false.

In...