Markey v. State
| Decision Date | 04 June 1904 |
| Citation | 37 So. 53,47 Fla. 38 |
| Parties | MARKEY v. STATE. |
| Court | Florida Supreme Court |
In Banc. Error to Circuit Court, Hamilton County; Bascom H Palmer, Judge.
George L. Markey was convicted of perjury, and brings error. Reversed.
Syllabus by the Court
1. Where a document is offered in its entirety, and is admitted in evidence without objection, a motion to strike out said document as an entirety upon the ground that a portion thereof is incompetent and inadmissible upon certain specified grounds should be overruled when any part of said document is admissible as against the specific grounds urged.
2. Where a record was offered in evidence by the state, and at the time of said offer it was stated that certain portions of said record were not included therein, and were not offered and the defendant, being thus pur upon notice as to the excluded parts, consented to the introduction of said record no error was committed by the trial court in denying a motion of the defendant to strike out said record on the ground that the whole record was not filed in evidence, especially where it is not made to appear that the defendant was in any manner harmed by the omission of the excluded parts.
3. Where, upon motion of the complainant's solicitors in a divorce suit, the court orders and appoints a certain designated person to take the testimony of the complainant and other witnesses in said divorce suit, but fails to designate said person as an examiner, master in chancery, or by any official title, the order is sufficient to confer full authority upon the designated person to take said testimony and such authority carries with it the power and authority as well as the duty to administer oaths to the complainant and other witnesses. Hocker, J., dissenting.
4. Where the complainant in a divorce suit procures an order from the court appointing a certain designated person to take the testimony of himself and other witnesses in said suit, but said order fails to designate said person an examiner or master in chancery, or to give to him any official title, and the complainant proceeds to have his testimony taken in said divorce suit by the person so appointed by the court, at complainant's request, and uses said testimony so taken as a basis for the relief sought in his bill, and obtains a final decree thereon, the irregularity or defect, if any such existed in the appointment, was waived by said complainant. Hocker, J., dissenting to the extent that the doctrine of this head note can apply to a prosecution for perjury.
5. Mere irregularities in the appointment of a master in chancery, an examiner, or other person appointed by the court to take testimony, whether such person be designated in said order by any official title or not, cannot be questioned on the trial for perjury of one who, it is alleged, testified falsely before him. Hocker, J., dissenting on the ground that the record does not show a mere irregularity in the appointment of an examiner, but does show that no person was appointed examiner or master.
6. The identification and production of the testimony of the defendant, who was complainant in a divorce suit, with proof of the signature of the defendant as well as of the officer taking said testimony thereto, are at least prima facie sufficient in a prosecution for perjury to establish that defendant was actually sworn, and, unless this presumption be rebutted or overcome by other evidence, it would seem that such evidence would become conclusive as to such swearing.
7. The change of the letter 'v' in the word 'live' to 'f,' so as to make the sentence read, I am a resident citizen of the state of Florida, and have been all my life,' though made by the examiner after the testimony of the defendant so taken by him had been filed in the clerk's office, while an irregularity, was not a material change, and no harm could have resulted to the defendant therefrom, especially as the examiner had testified that said defendant had actually used the word 'life' in so testifying before him, and that the change was made by him in order to make sense out of said sentence, and that it might speak the truth.
8. Although a tribunal must have jurisdiction of the cause or proceeding before perjury can be committed therein, yet when there is a defect which renders the proceeding voidable only, and such proceeding is amendable, or when the defects are waived by the parties, and the cause is heard on the merits, then perjury may be committed. Hocker, J., dissenting.
9. Where a bill for divorce contained sufficient allegations to give the court jurisdiction and to warrant the relief sought, if true, the fact that upon trial of the complainant for perjury in testifying falsely as to material facts alleged in said bill it appeared that neither party had resided in this state for the statutory period of two years will not bar a conviction.
10. This court cannot consider any grounds of objections to the admissibility of evidence, except such as were made in the court below; the plaintiff in error being confined to the specific grounds of objection made by him in the trial court.
11. To make a valid oath for the falsity of which perjury will lie, there must be in some form, in the presence of a person authorized to administer it, an unequivocal and present act, by which affiant consciously takes upon himself the obligation of an oath. It is obsolutely essential to the offense that the testimony or statement relied on as constituting perjury was under an oath actually administered. Without this there can be no conviction for the offense. If the false oath charged is a written statement sworn to by defendant, it is immaterial whether the oath was administered before or after the statement was reduced to writing and signed, the material point being that the defendant was sworn.
12. If the affidavit or testimony of a defendant were actually used by him in the cause in which it was taken, proof of this fact will supersede the necessity of proving his handwriting upon his trial for perjury, but this proof will not dispense with the requirement as to proof that the defendant was sworn.
13. While the oath must be administered, and by a person duly authorized thereto, it is immaterial in what form it is given, if the one testifying at the time professes such form to be binding on his conscience. The fact that a person takes an oath in any particular form is a binding admission that he regards it as binding on his conscience. The underlying principle is that, whenever the attention of the person who comes up to swear is called to the fact that the statement is not a mere asseveration, but must be sworn to, and in recognition of this he is asked to do some corporal act, and does it, this is a statement under oath. And this without kissing any book, or raising his hand, or doing any religious act.
14. Generally speaking, conclusive presumptions and estoppels have no place in criminal law for the purpose of establishing the body of the crime charged. The defendant may prove the actual fact in dispute notwithstanding any admission or confession he may have made to the contrary, and especially is this true in a prosecution for perjury.
15. In a prosecution for perjury, the person alleged to have administered the oath, the defendant himself, or any witness present at said alleged swearing may be interrogated fully as to all the facts and circumstances connected with the alleged swearing of the defendant, in order that it may be determined whether or not the defendant was sworn.
16. There is a broad distinction between motions for a new trial and motions in arrest of judgment, and neither motion can be made to perform the functions of the other. In considering the denial of a motion for a new trial, grounds thereof which are proper only in a motion in arrest of judgment will not be considered in an appellate court.
17. In an indictment for perjury based upon alleged false swearing by the defendant as a witness in his own behalf in a divorce suit wherein he was complainant, where the relief sought was not on the ground of adultery, it is not necessary to allege therein that the divorce was not sought on the ground of adultery.
18. The allegation in an indictment for perjury that it became and was a material matter respecting which the oath was taken whether or not the defendant on July 15, 1901, had resided in Florida for two years prior thereto, was sufficient to show the materiality of the alleged false testimony, without alleging the facts showing its materiality.
J. M. Rivers, D. B. Johnson, and J. R. Walker, for plaintiff in error.
W. H. Ellis, Atty. Gen., and M. F. Horne, for the State.
At the fall term, 1902, of the circuit court for Hamilton county the plaintiff in error, George L. Markey (hereinafter referred to as the defendant), was indicted for perjury. Omitting the formal parts, said indictment was as follows:
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