Hogan v. State

• Decision Date: 12 November 1987
• Docket Number: No. 56724,56724
• Citation: 516 So.2d 474
• Parties: Otha D. HOGAN, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 474

516 So.2d 474

Otha D. HOGAN, Jr. v. STATE of Mississippi.

No. 56724.

Supreme Court of Mississippi.

Nov. 12, 1987.

Rehearing Denied Jan. 6, 1988.

Bobby J. Garraway, Lumberton, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

EN BANC.

HAWKINS, Presiding Justice, for the Court:

Otha D. Hogan, Jr., appeals from a conviction of perjury in the circuit court of Lamar County and sentence to five years' imprisonment. The issue we address on this appeal is whether two mutually contradictory statements under oath can support a conviction for perjury under Miss.Code Ann. Sec. 97-9-59 (1972). We hold that it can, but only in certain cases where the State is unable to offer additional proof of falsity. Since the record in this case does not reflect an unavailability of such additional evidence, we reverse and remand for proceedings consistent with this opinion.

FACTS

On July 21, 1982, Hogan was indicted by the grand jury of Lamar County for murder. His case was set for trial on October 14, 1982, and on that day he entered a plea of guilty to the reduced charge of manslaughter. The record shows that under oath Hogan was questioned extensively by the court, and stated that he understood the consequences of his plea, and that he entered it freely and voluntarily. The court then sentenced him to fifteen years in prison.

Thereafter, on February 27, 1984, Hogan filed a petition for a writ of habeas corpus under oath in the Lamar County circuit court, stating that the guilty plea he had made was not freely and voluntarily made, and was given without any intelligent and knowing understanding of his plea.

On June 25, 1984, the grand jury of Lamar County indicted Hogan for perjury. The indictment, as most perjury indictments under our practice and procedure, is lengthy. It alleges the two different statements made under oath by Hogan. The final paragraph of the indictment reads:

Whereas, the State of Mississippi would show that both claims by the defendant On December 7, 1984, Hogan moved to quash the indictment for failure to allege every essential element of the crime, as well as "what the truth is in relation to the matter of which perjury is assigned." While proof was adduced at trial indicating Hogan was well advised of his rights in his plea of guilty, the prosecution never designated which of Hogan's statements was considered false. Over Hogan's objection the State was granted instruction S-3:

were made under oath and that both claims by the defendant directly contradict each other and that the said defendant well knew of this complete untruth of one of these statements under oath either the statement entered on October 14, 1982 or the sworn petition filed on Feb. 27, 1984 and the Grand Jurors aforesaid, do say and present that the said Otha D. Hogan on one of the two aforementioned dates, either October 14, 1982 or February 27, 1984 did falsely, maliciously, wickedly, knowingly, corruptly and feloniously in the manner and form as aforesaid did commit willful and corrupt perjury in violation of Section 97-9-59 of Mississippi Code of 1972 as amended.

INSTRUCTION

THE COURT INSTRUCTS THE JURY THAT THE DEFENDANT, OTHA D. HOGAN, IS CHARGED WITH THE CRIME OF "PERJURY", AND IF YOU BELIEVE FROM THE EVIDENCE IN THIS CASE BEYOND A REASONABLE DOUBT THAT:

1. THE DEFENDANT WAS PLACED UNDER OATH ON THE 14th DAY OF OCTOBER 1982, BY WAYNE PARKER, CIRCUIT CLERK OF LAMAR COUNTY, MISSISSIPPI, AND UNDER OATH STATED THAT HE WANTED TO ENTER A PLEA OF GUILTY TO "MANSLAUGHTER" AND THAT SAID PLEA WAS ENTERED FREELY AND VOLUNTARILY AND THAT HE UNDERSTOOD THE CONSEQUENCES OF HIS PLEA AND THE RECOMMENDED SENTENCE AND THAT HE WAS FULLY AND COMPLETELY SATISFIED WITH EVERY ASPECT OF THE PLEA BARGAIN AGREEMENT AND DID THEN AND THERE PLEAD GUILTY TO "MANSLAUGHTER" AND DID NOT WITHDRAW HIS PLEA, STATING UNDER OATH THAT HE UNDERSTOOD ALL THE TERMS OF HIS PLEA, THE QUESTIONS PROPOUNDED BY THE COURT AND ALL EXPLANATIONS MADE IN THIS CASE, AND IF YOU BELIEVE BEYOND A REASONABLE DOUBT FROM THE EVIDENCE THAT

2. ON THE 27th DAY OF FEBRUARY, 1984, THE DEFENDANT, OTHA D. HOGAN, FILED WITH THE CIRCUIT COURT A PETITION FOR WRIT OF HABEAS CORPUS, SWORN UNDER OATH STATING THAT THE PLEA HE ENTERED ON OCTOBER 14, 1982 IN LAMAR COUNTY CIRCUIT COURT AFORESAID, WAS MADE INVOLUNTARILY AND WITHOUT INTELLIGENT AND KNOWING UNDERSTANDING OF THE CONSEQUENCES THAT WOULD RESULT OF THE PLEA, AND

3. FURTHER IF YOU BELIEVE FROM THE EVIDENCE IN THIS CASE BEYOND A REASONABLE DOUBT THAT BOTH STATEMENTS BY THE DEFENDANT WERE MADE UNDER OATH AND THAT BOTH CLAIMS DIRECTLY CONTRADICT EACH OTHER TO THE EXTENT THAT EITHER ONE OF THE TWO STATEMENTS MADE UNDER OATH, THE DEFENDANT WELL KNEW OF THE COMPLETE UNTRUTH OF ONE OF THESE STATEMENTS, EITHER THE PLEA ENTERED ON OCTOBER 14, 1982, OR THE SUBSEQUENT PETITION FILED UNDER OATH ON FEBRUARY 27, 1984, AND THAT AS A RESULT THEREOF DID FALSELY MALICIOUSLY, WICKEDLY, KNOWINGLY, WILFULLY, CORRUPTLY, AND FELONIOUSLY COMMIT WILFUL AND CORRUPT PERJURY IN THAT ONE OF THE STATEMENTS WAS A COMPLETE FALSEHOOD AND A LIE UNDER OATH, THEN YOU SHALL FIND

THE DEFENDANT, OTHA D. HOGAN, GUILTY AS CHARGED.

The jury found Hogan guilty of perjury, and he has appealed.

LAW

Miss.Code Ann. Sec. 97-9-59 (1972) provides in pertinent part:

Every person who shall wilfully and corruptly swear, testify or affirm falsely to any material matter under oath, affirmation or declaration legally administered in any matter, cause or proceeding pending in any court of law or equity, or before any officer thereof, ... shall be guilty of perjury....

There is no question but that the sworn statements by Hogan were material to the issue before the court. Without the first, no valid plea of guilty could have been received and entered by the circuit judge. Without the second, Hogan's petition for a writ of habeas corpus would not have stated a claim. The materiality of these statements was a question of law for the court's, not the jury's, determination. Brewer v. State, 233 So.2d 779 (Miss.1970); State v. Tate, 77 Miss. 469, 27 So. 619 (1900). Neither can there be any question but that Hogan did indeed testify and swear falsely in a circuit court proceeding.

The only missing ingredient is on which date did he lie?

The question before us is whether proof that an accused knowingly and wilfully has made two mutually contradictory statements on a material matter under oath without more can support a conviction of perjury under this statute.

We hold that it can, but only in certain special factual scenarios which we delineate in this opinion.

Because we are unable from this record to determine whether this case falls within such special circumstances, we reverse and remand.

It is, of course, true that in perjury the corpus delicti must be established by the State as it must in all crimes. Thus, in an ordinary case of perjury where the accused has made only a single statement under oath, in order to prove that he lied--that perjury has been committed--it is incumbent on the State to first prove the actual truth. See: Chenault v. State, 154 Miss. 21, 122 So. 98 (1929). And, even where the accused has made statements under oath which are at variance with or contradict one another, the State in the usual case is in a position to designate on which date he lied, and again make proof by showing the true facts on that date. This is because, as a general rule, it is the very fact that the State is easily capable of showing the truth that makes the perjury blatant and so deserving of punishment. The contradictory statements made by the accused in such instances are strong corroborating evidence of perjury. See: Hemphill v. State, 71 Miss. 877, 16 So. 261 (1894); People v. Glenn, 294 Ill. 333, 128 N.E. 532 (Ill.1920).

But what about that special case when an accused has made two mutually contradictory statements of a fact or a state of mind of which he could not have been mistaken, one of which has to be true and the other has to be false, and which as a practical matter only the accused is in a position to designate which is true, and which is false? ¹

Does this mean that the accused has not lied under oath? Does this mean that he did not by such perjury undermine the Should the State be precluded from prosecuting an accused for such an outrage simply because the State can never prove on which particular date he lied? In this type of case, it is the deliberately made mutually contradictory statements, one of which has to be true and the other false, which constitutes the corpus delicti, proof that the crime of perjury has been committed.

sanctity of the oath and frustrate the judicial process?

There is nothing about the statute in and of itself which requires a showing by the State on which date an accused swore falsely. It does require that the State prove that the defendant did in fact "testify or affirm falsely to any material matter under oath."

Either by statute or by common law, as well as by a combination of the two, proof on the issue of perjury has had superimposed upon it the technical necessity that two witnesses must orally testify to the truth of the matter about which the accused swore falsely, or at least one witness must testify together with corroborating circumstances. 7 Wigmore, Evidence (Chadbourne Rev.), Sec. 2042, pp. 364-365, Footnote 1, lists a number of states' statutes dealing with the quantum proof in perjury cases. See also cases cited in Am.Jur.2nd Perjury, Sec. 63, Footnote 1; and 70 C.J.S. Perjury, Sec. 68, Footnotes 53-59.

In this State the rule comes from the common law only. See: Horn v. State, 186 Miss. 455, 191 So. 282 (1939); Gordon v. State, 158 Miss. 185, 128 So. 769 (1930); Johnson v. State, 122 Miss. 16, 84 So. 140 (1920); Lee v. State, 105 Miss. 539, 62 So.2d 360 (1913); Saucier v. State, 95 Miss. 226, 48 So. 840 (1909); Whittle v. State, 79 Miss....