Loudermilk v. State

• Decision Date: 22 December 1913
• Citation: 162 S.W. 569,110 Ark. 549
• Parties: LOUDERMILK v. STATE
• Court: Arkansas Supreme Court

162 S.W. 569

110 Ark. 549

LOUDERMILK v. STATE

Supreme Court of Arkansas

December 22, 1913

Appeal from Logan Circuit Court, Southern District; Jeptha H. Evans Judge; affirmed.

STATEMENT BY THE COURT.

Appellant was convicted for perjury and filed a motion in arrest of judgment in which he alleged that the facts stated in the indictment did not constitute a public offense. This motion was overruled and appellant was sentenced to a term in the penitentiary and he has appealed.

The indictment was as follows:

State of Arkansas v. Jesse Loudermilk.

The grand jury of Logan County and Southern District in the name and by the authority of the State of Arkansas, accuse Jesse Loudermilk of the crime of perjury, committed as follows:

The said Jesse Loudermilk, on the 14th day of September, 1912, in the county and district aforesaid, on his examination as a witness duly sworn to testify to the truth, on the trial of a criminal action wherein the State of Arkansas was plaintiff and J. D. Rupe, Ab Pyles and Fen Harper were defendants, in the court of A. J. McAmis, a justice of the peace in and for Boone township, Logan County, Arkansas, he, the said A. J McAmis, then and there being duly commissioned and acting and legally authorized to administer an oath, did feloniously falsely and corruptly testify that he, the said Jesse Loudermilk, stayed at the home of the said J. D. Rupe in Hackett, Sebastian County, Arkansas, during the night of the 9th day of September, 1912, and that a certain gray horse and a certain black horse, at that time owned by J. D. Rupe, were there at said time; and that he fed said horses on the evening of the 9th and on the morning of the 10th of said September, 1912, at said place, the matters so testified being material in said action and the testimony being wilfully and corruptly false, he, the said Jesse Loudermilk at the time well knowing the same to be wilfully and corruptly false. Against the peace and dignity of the State of Arkansas.

J. D Benson,

Prosecuting Attorney Fifteenth Circuit of Arkansas.

Judgment affirmed.

J. H. Holland and Robt. J. White, for appellant.

1. The indictment fails to charge by what court or before whom the oath or affirmation was administered. Kirby's Dig., § 1970; 30 Cyc. 1425; 54 Ark. 585; 89 Ala. 165; 24 Ark. 591.

2. It fails to charge that the justice of the peace had authority to administer the oath under which the false testimony is charged to have been given. It was necessary to charge that the oath was taken before some officer or court having authority to administer the same. 59 Ark. 113; 51 Ark. 138.

3. The indictment should charge that the justice of the peace had jurisdiction to try the cause being investigated when the alleged false oath was made, and allege facts sufficient to show jurisdiction in him. Therein the indictment fails. 45 Ark. 336; 30 Cyc. 1411; Id. 1429; 80 Ark. 264.

4. The indictment contains no proper averments to falsify the matter wherein the perjury is charged. A mere general averment of falsity is not sufficient. The true facts should be set forth by way of antithesis. 30 Cyc. 427; Id. 1437; 54 Ark. 584; 3 Wharton, Crim. Law (6 ed.), § 2259, 84 F. 790; 90 S.W.650; 1 S.W. 435; 18 S.W. 792.

5. No sufficient averment of the materiality of the false testimony is contained in the indictment, and its materiality does not appear from the facts alleged. 47 Ark. 553; 29 Ark. 149; 53 Ark. 399; 32 Ark. 192.

Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

A motion in arrest of judgment can only raise the question whether or not the indictment charges or includes a public offense. 100 Ark. 195, 196; 101 Ark. 155. All other questions relative to the indictment pass out of the case, since no demurrer was filed.

The indictment is sufficient. 85 Ark. 195-6; 91 Ark. 200; 99 Ark. 629.

OPINION

SMITH, J., (after stating the facts).

Appellant makes numerous objections to this indictment, and if it was measured by the common law essentials of a good indictment for perjury, it is apparent that it would be defective for a number of reasons, but that prolixity, precision and technicality is no longer required. A statute of this State provides that:

"In indictments for perjury, it shall be sufficient to set forth the substance of the offense charged, and by what court or before whom the oath or affirmation was taken, averring such court or person to have competent authority to administer the same, together with the proper averments to falsify the matter wherein the perjury is charged or assigned, without setting forth any part of the record, proceeding or process either in law or equity, or any commission or authority of the court or person before whom the perjury was committed, or the form of the oath or affirmation, or the manner of administering the same." Kirby's Digest, § 1970.

The appellant says the indictment does not meet the requirements of this section and that it is void for reasons which may be summarized as follows:

(a) It fails to charge by what court or before whom the oath or affirmation was taken or administered.

(b) It fails to charge that the justice had authority to administer the particular oath under which the false testimony is charged to have been given.

(c) It fails to charge that the court or justice of the peace had jurisdiction to try the cause being investigated, when the alleged false oath was made.

(d) It fails to contain proper averments to falsify the matter wherein the perjury is charged.

(e) It fails to contain sufficient averment of the materiality of the false testimony, and its materiality does not sufficiently appear from the facts alleged.

We will discuss these objections in reverse order.

(e) The indictment does not allege facts from which the materiality of the evidence appears, but it does allege that it was material, and that allegation meets the requirements of the law.

In the case of Smith v. State, 91 Ark. 200, 120 S.W. 985, it was contended that the indictment was bad because the materiality of the evidence alleged to be false did not appear from an inspection of the indictment, and it was there said:

"Under a statute substantially the same as section 1970 it was held in People v. DeCarlo, 124 Cal. 462, 464, 467, that an averment in an indictment that the false testimony given by the defendant was material to the 'issues tendered in said cause' was a sufficient averment of its materiality, without specifying any particular issue upon which it was material, or how it was material.

"The rule is that in indictments for perjury the false testimony or statement for which the defendant is indicted may be shown by the indictment to be material, either by direct averment, or by allegation from which their materiality appears. 'The rule of pleading is satisfied by a direct averment, and with that the question of materiality becomes one of proof of that averment. It is only when there is no averment of materiality that the indictment is insufficient, unless it alleges the facts from which the law infers the materiality.' Commonwealth v. McCarty, 152 Mass. 577, 580, 26 N.E. 140; People v. Ennis, 137 Cal. 263, 70 P. 84; Greene v. People, 182 Ill. 278, 55 N.E. 341; Flint v. People, 35 Mich. 491; 1 Russell on Crimes (International Edition, 1896), page 354; 30 Cyclopedia of Law and Procedure, 1435, and cases cited."

(d) The indictment does not expressly state what the truth was in regard to the matter about which appellant testified but it does allege that his statement, "that he, the said Jesse Loudermilk, stayed at the home of the said J. D. Rupe in Hackett, Sebastian County, Arkansas, during the night of the 9th day of September, 1912, and that a certain gray horse and a certain black horse at that time owned by J. D. Rupe were there at said time; and that he fed said horses on the evening of the 9th and on the morning of the 10th of said September, 1912," was wilfully and corruptly false, and it would have added nothing to the meaning of this indictment to have stated that the truth was that the appellant did not at that time and place feed the certain gray horse and black horse. It is...