Jones v. State

• Citation: 28 S.E.2d 373
• Decision Date: 02 December 1943
• Docket Number: No. 30039.,30039.
• Parties: JONES. v. STATE.
• Court: United States Court of Appeals (Georgia)

28 S.E.2d 373

JONES.

v.STATE.

No. 30039.

Court of Appeals of Georgia, Division No. 1.

Dec. 2, 1943.

Rehearing Granted Dec. 13, 1943.

Judgment Adhered to Dec. 20, 1943.

[COPYRIGHT MATERIAL OMITTED]

On Rehearing.

Syllabus by the Court.

1. The evidence authorized the verdict.

2. "While the offense of perjury must be shown by two witnesses, or one witness and corroborating circumstances, the fact that the person was suborned to commit the offense of perjury is sufficiently shown by the testimony of the suborned witness." Bell v. State, 5 Ga.App. 701, 704, 63 S.E. 860.

3. In order to apply the rule stated in the Code, § 38-1806, which is as follows: "* * * if a witness shall swear wilfully and knowingly falsely, his testimony shall be disregarded entirely, unless corroborated by circumstances or other un-impeached evidence, " to contradictory statements, the statements must be made in the same case.

4. The rule stated in Code, § 38-1803, which is as follows: "A witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case, " is not restricted to contradictory statements made in the same case and is applicable to contradictory statements made, as here, in different cases.

5. "If the court undertakes to instruct the jury as to the methods by which a witness may be impeached, he should instruct them as to all the methods of impeachment, so far as such instructions are authorized by the evidence; but his failure to do so will not require the granting of a new trial, where no written request was made to charge the jury as to the mode of impeachment omitted by him from his instructions upon the subject of impeachment of witnesses." Millen & Southwestern R. Co. v. Allen, 130 Ga. 656(5), 61 S.E. 541.

6. "Mere failure to charge as to one method of impeachment does not in any wise invalidate a correct charge as to another and different method of impeachment." Smaha v. George, 195 Ga. 412, 420, 24 S.E.2d 385, 391.

7. Other exceptions to charges and to a failure to charge, without request, show no ground for reversal.

8. "Where a witness called by the defendant testifies to his good character from general reputation, it is allowable, on cross-examination, for the witness to testify to his having heard of specific instances of conduct tending to disprove the witness' estimate of the defendant's character."

Error from Superior Court, Fulton County; Hugh M. Dorsey, Judge.

Johnny J. Jones was convicted of subornation of perjury, and he brings error.

Affirmed, and judgment adhered to on rehearing.

Heyman, Howell & Heyman, of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen, Durwood T. Pye, Lindley W. Camp, Sol, C. E. Presley, and E. E. Andrews, all of Atlanta, for defendant in error.

MacINTYRE, Judge.

1. The indictment charged Johnny J. Jones with subornation of perjury in two counts. The first count charged that Jones, on July 10, 1941, did advise, counsel, and procure Kinard to commit perjury in the trial of a divorce suit brought in Superior Court of Fulton County, Georgia, by Kinard against his wife, in that the accused did procure Kinard to testify in said case, that he was then a resident of Fulton County, Georgia, where he had lived for two years, and other stated facts relatively to the claimed residence of Kinard in Fulton County; and that Kinard did so commit perjury in that case. The second count charged that Jones, on July 10, 1941, did advise, counsel, and procure Mrs. Susie L. Tant to commit perjury in the trial of a divorce suit brought in Fulton Superior Court by Mrs. Tant against her husband, in that the accused did procure Mrs. Tant to testify in said case, that she was then a resident of Fulton County, Georgia, where she had lived for two years preceding, and to testify other facts relatively to her alleged residence in Fulton County; and that Mrs. Tant did so commit perjury in that case. The defendant, Jones, was convicted for both offenses; and, upon the overruling of his motion for new trial containing the general grounds and twenty-one special grounds, he excepted. The burden was upon the State to establish in each count (1) the commission of perjury by the person suborned and, (2) that defendant willfully procured or induced such person to commit the perjury. The State was required to prove the perjury by two witnesses, or one witness and corroborating circumstances. The State might prove the subornation by the sole testimony of the person suborned. Bell v. State, 5 Ga.App. 701 (1, 2), 63 S.E. 860; Mallard v. State, 19 Ga.App. 99 (1), 90 S.E. 1044; Stone v. State, 118 Ga. 705, 45 S.E. 630, 98 Am.St. Rep. 145. To prove the perjury of the person suborned, the State was required to show (1) that the person alleged to have been suborned testified substantially to the matters charged (2) the wilful and absolute falsity of the testimony (3) that the testimony was material (4) that the testimony was given in a judicial proceeding and (5) that a lawful oath was administered. Code, § 26-4001. The first, fourth and fifth of the above elements, to wit, that the testimony charged to have been given was actually given, that the testimony was given in a judicial proceeding, and that a lawful oath was administered, were proved by the positive testimony of the persons suborned, and by the positive testimony of Judge A. L. Etheridge and J. H. Bush, and the record of the divorce proceeding; that the testimony as to residence was material appears as a matter of law from the nature of the proceeding in which it was given, that is, a divorce action in which it was alleged that the defendant was a non-resident of Georgia, which such action must necessarily be brought in the county of the residence of the plaintiff, who must also have been a resident of Georgia, for twelve months before bringing the action. Code, §§ 2-4301, 30-107. The evidence supporting count (1) of the indictment which related to the perjury of Kinard was that he (Kinard) swore that the testimony given by him in his divorce case to the effect that he was then a resident of Fulton County, Georgia, and had been such for two years, was false, and that the defendant procured him to thus swear falsely. The evidence of Kinard, Judge Etheridge, and J. H. Bush, and the record in the divorce suit, showed that Kinard's testimony in the divorce suit was given on July 10, 1941. There was admitted into evidence the record of a divorce action filed by Kinard in Florida in July, 1940, in which Kinard alleged, under oath, that he was then an actual bona fide resident of Jacksonville, Duval County, Florida, and had been such for more than ninety days before filing his suit; and also the record of the testimony given in that case by Kinard on August 22, 1940, he then testifying that he was then a resident of Jacksonville, Florida, having moved to that place April 6, 1940. The filing of the Florida action, and the testimony given therein by Kinard, corroborated his testimony on the trial of Jones that his testimony given in the Fulton County divorce action was false; and tended to show that Kinard had not lived in Fulton County, Ga, for two years at thetime he so testified on July 10, 1941. Subsequently the Florida suit proceeded to judgment in favor of Kinard, but that judgment was thereafter, on August 29, 1940, set aside and adjudged null and void, upon the ground that Kinard had perpetrated a fraud upon the court in respect to the court's jurisdiction. The circumstances of Kinard's filing the Florida action July 5, 1940, which was set aside as a fraud August 29, 1940, and of Kinard thereafter, on February 3, 1941, filing the Fulton County, Georgia, suit, in both of which suits he claimed that each court had jurisdiction by reason of his residence in the respective States, the Florida suit being filed July 5, 1940, alleging that he was a resident of Florida, and the Fulton County suit being filed February 3, 1941, alleging that he was a resident of Georgia and had been such for twelve months, which was physically impossible if the allegations of the Florida suit were true, all tended to show that Kinard was anxious to procure a divorce from his wife, irrespective of the means necessary, and that he had no regard as to allegations of residence, and tended to show that it was likely that Kinard swore falsely in Fulton County, Georgia, when he there testified that he was then a resident of Georgia and had been such for two years; and the jury were authorized to accept these circumstances as corroborative of his testimony on the trial of Jones. The evidence supporting count 2 was that Mrs. Tant swore that her testimony given on the trial of her divorce action, relatively to her claim of residence in Fulton County for two years, was false. Her testimony on the trial of Jones that her previous testimony was false and that the defendant procured her to thus swear falsely was corroborated by the correspondence between her and Jones, Mrs. Tant's letters being sent to Jones from South Carolina, and Jones' letters to Mrs. Tant being addressed to her in South Carolina. Particularly corroborative of Mrs. Tant's testimony on the trial of Jones that she had never been a resident of Georgia, and so told the defendant before he filed her suit, but always a resident of South Carolina, is a letter to her in South Carolina, from Jones in Augusta, in which Mr. Jones stated, in part: " * * * the reason that your case has not been filed is because just as I explained to you while you were here, there has been a great deal of contention here where there was any doubt of the fact that the plaintiff in the case had not lived in Georgia twelve months before the filing of the suit for divorce, and for that reason your case has riot been filed, though I had hoped that the condition here would blow over, and that I might be able to go ahead with your case just as you wish it done * * *. I am planning to file several suits for...