King v. State

• Decision Date: 19 January 1898
• Citation: 30 S.E. 30,103 Ga. 263
• Parties: KING v. STATE.
• Court: Georgia Supreme Court

30 S.E. 30

103 Ga. 263

KING v. STATE.

Supreme Court of Georgia

January 19, 1898

Syllabus by the Court.

1. An indictment for perjury alleging that the accused did "willfully, knowingly, absolutely, and falsely swear in a matter material to the issue and point in question" (setting it forth), and further alleging that this "testimony was false, and [the accused] knew it was false at the time he so swore, and [the accused] did thereby commit willful, intentional, and corrupt perjury," sufficiently averred an intention to swear falsely.

2. An indictment for perjury which alleges that certain testimony therein set forth was false, and that the same was given by the accused in a matter material to a specified issue and point in question in a described judicial proceeding, is, so far as relates to alleging the materiality of such testimony sufficient, without stating in detail the facts showing how the same was material.

3. Though, under the ruling made by this court in Johnson v State, 76 Ga. 790, it is not indispensable to the validity of an indictment for perjury that it should, after stating what the alleged false testimony was, in terms set out what was the truth in that regard, it is essential that an indictment for this offense wanting in this respect should, by clear and necessary implication, show what must have been the truth of the matter to which the alleged false testimony related.

4. When, therefore, a material point in question in the judicial proceeding at which the alleged perjury was committed was whether certain indorsements had been entered upon two promissory notes before or after their maturity, the notes referred to being dated March 4, 1893, and due, respectively one and two years after date, and the indictment charged that the accused falsely swore such indorsements were "written on the back of said notes at the time said notes were written, in May, 1893," without alleging what the truth was as to when these indorsements were in fact made, such indictment was bad, because it neither in express terms alleged, nor by necessary implication showed, the time at which the indorsements were placed upon the notes. Such an indictment cannot be treated as averring the truth to be that the indorsements in question were entered upon the notes after their maturity. If, for instance, they were entered in June, 1893, the evidence referred to might be false, though it would still be true that such indorsements were made before the notes became due.

Error from superior court, Floyd county; W. M. Henry, Judge.

J. King was convicted of perjury, and brings error. Reversed.

Fouché & Fouché, for plaintiff in error.

Moses Wright, Sol. Gen., and Watkins & Dean, for the State.

FISH J.

1. One ground of the demurrer to the special presentment was that it did not charge that the accused intended to swear falsely. The presentment charged that the accused did "willfully, knowingly, absolutely, and falsely swear, in a matter material to the issue and point in question" (setting forth the alleged false testimony), and the accused "knew it was false at the time he so swore," and the accused "did thereby commit willful, intentional, and corrupt perjury." The word "willful" is a part of the definition of "perjury" as contained in the statute. In common parlance, "willful" means "intentional," as distinguished from "accidental" or "involuntary." In penal statutes, it means "with evil intent, with legal malice, without ground for believing the act to be lawful." And. Law Dict. 1114. In Black, Law Dict. 1242, "willful" is defined as follows: "Proceeding from a conscious motion of the will; intending the result which actually came to pass; designed; intentional; malicious." We cannot comprehend how one can willfully testify to that which he knows to be false at the time he testifies, without intending to testify falsely. There was no merit in this ground.

2. Another ground of the demurrer was that "the alleged false testimony was not material to any issue stated, or that could legally arise in the suit alleged to have been on trial." It is sufficient in an indictment for perjury to charge generally that the testimony alleged to have been false was in relation to a matter material to the point or question in issue, without setting forth in detail the facts showing how such testimony was material. The authorities to this effect are abundant. See Whart. Cr. Law, § 1304; Maxw.

Cr Proc. p. 416; McClain, Cr. Law, § 878; 18 Am. & Eng. Enc. Law, p. 317, and the authorities cited. When the record does not positively show that the testimony was immaterial, an express averment that a question was material lets in evidence to prove that it was so. Whart. Cr. Law, § 1304; Reg. v. Bennett, 5 Cox, Cr. Cas. 207; Reg. v. Schlesinger, 10 Q. B. 670, 2 Cox, Cr. Cas. 200. In the present case, if we leave out of consideration the positive allegation of materiality contained in the presentment, and consider the alleged false testimony in connection with the other allegations, its materiality may be clearly inferred; for if, as alleged, the issue on trial, when the alleged perjury was committed, was the "question of the...