Horn v. State

• Decision Date: 09 October 1939
• Docket Number: 33667
• Citation: 191 So. 282,186 Miss. 455
• Court: Mississippi Supreme Court
• Parties: HORN v. STATE

191 So. 282

186 Miss. 455

HORN v. STATE

No. 33667

Supreme Court of Mississippi, Division A

October 9, 1939

APPEAL from the circuit court of Forrest county HON. W. J. PACK Judge.

James Horn was convicted for perjury and he appeals. Reversed and defendant discharged.

Reversed and appellant discharged.

Earle L. Wingo and Dale & Koonce, all of Hattiesburg, for appellant.

We are of the firm belief that the testimony produced by the State in its effort to prove the crime of perjury was wholly insufficient as a matter of law. The indictment alleged that the appellant had willfully, unlawfully, feloniously corruptly, and knowingly sworn that he did not know whether Mary Breland was the person who sold him the intoxicating liquor when in truth and fact the appellant well knew that Mary Breland was the person who sold the appellant the intoxicating liquor. There was a complete failure to prove that the appellant was not honestly mistaken over the question of the identification of Mary Breland and the State relied solely upon the proof that the appellant identified Mary Breland upon the first trial in July, 1937, if being the one from whom he purchased the whiskey and the testimony of the appellant upon the subsequent trial of Mary Breland that because of his defective vision, darkness of the room and the presence of several negro women at the time of the purchase of the whiskey, he was not sure whether Mary Breland was actually the person who made the sale to him.

It has long been the well settled law that a corrupt intent is an essential element of the crime of perjury.

48 C J., 908, Section 182.

The defense of the appellant as shown by the testimony, which is nowhere denied in the Record, was that he was honestly mistaken on the question of identity and this too raises an issue of good faith on the part of the appellant. There was absolutely no denial of the appellant's good faith and being honestly mistaken and, therefore, it is submitted that the State wholly failed to meet the burden imposed by law.

We desire to call the court's attention to the fact that the State did not request and did not receive and the appellant did not request and did not receive an instruction in any way explaining the law applicable to the crime of perjury.

48 C J., 909, Section 184, dealing with the question of the requirement that the State should instruct the jury as to the degree of proof required in a case of perjury, we find the following:

"The court should instruct the jury as to the degree of proof and the number of corroboration of witnesses required to support a conviction for perjury."

Brown v. State, 57 Miss. 424, Saucier v. State, 95 Miss. 226.

It is the well settled law in Mississippi that the State in a perjury case must do more than merely instruct the jury as was done in the case at bar, because it is mandatory upon the State to obtain an instruction setting forth the degree of proof and the number of corroborating witnesses required to obtain a conviction for perjury.

W. D. Conn, Jr., Assistant Attorney-General, for the State.

Appellant's first argument is that he was entitled to a directed verdict of not guilty because the state did not show that the change in his testimony came about as a result of corruption. We think it was a matter for the jury to determine under all the circumstances and inferences to be drawn from the evidence whether the change in testimony resulted from an honest mistake or was corruptly done. Certainly there is a great difference in his testimony as between the two trials. Obviously, appellant could not have told the truth on both occasions. One or the other is untrue. On this record the court could not have said, as a matter of law, that this was not perjury. A reading of the cross-examination of the appellant will demonstrate that he, at his trial, was ducking and dodging from pillar to...