McCord v. State

• Decision Date: 28 October 1889
• Citation: 10 S.E. 437,83 Ga. 521
• Parties: McCORD v. STATE.
• Court: Georgia Supreme Court

10 S.E. 437

83 Ga. 521

McCORD v. STATE.

Supreme Court of Georgia

October 28, 1889

Syllabus by the Court.

1. On a trial for perjury, where the evidence in behalf of the state tends to show that the accused testified under the motive of pecuniary interest created by bribery, he has the right to reply to such evidence by proving that before there was opportunity for offering him a bribe, and within about one hour after the occurrence touching which he testified, he related the facts and circumstances (these being now recited) substantially in accordance with his account of them, as subsequently given by him on oath, as a witness, his testimony, as then given, being the alleged perjury.

2. Whether the time when the accused was first known as a witness is of any weight in his behalf is a question for the jury, under all the circumstances of the case. Such a fact may have weight for or against him where there is an imputation of bribery.

3. It is not admissible to prove in general terms that the account given by the accused out of court before he testified was the same as that to which he testified; the witness judging of the coincidence, and not detailing the account heard by him to the jury, so as to enable them to judge of it for themselves.

4. Evidence that the person in whose behalf the accused testified when the alleged perjury was committed was insolvent, or of limited means, it not admissible to repel the imputation of bribery.

5. The assignment of perjury embracing several particulars, it was not prejudicial to the accused for the court to stress one of them, as being the main, material matter, in charging the jury.

6. Knowledge by a witness that his testimony is false is tested like intention generally, by sound mind and discretion, and by all the circumstances; soundness of mind, where nothing to the contrary appearing, being assumed.

7. It is not improper for the judge to inform the jury that he charges them on the prisoner's statement because the law obliges him to do so. The charge touching the statement, and the right and duty of the jury in dealing with it, was substantially correct.

8. The instructions of the court to the jury were not argumentative but some of them were confused, and several of them, as set out in the transcript, inaccurately expressed; due in part no doubt, to careless clerical work in preparing the transcript.

9. A request to charge which embraces a statement that a material fact is not material, or that it makes no difference, should be denied.

Error from superior court, Fulton county; R. H. CLARK, Judge.

The grounds for a new trial referred to in the opinion are as follows: "(3) The court charged: 'Usually, in ordinary cases, where a man is charged with perjury, with having sworn falsely, the fact of his seeing the crime is considered admitted, but that, having seen it, he swore falsely as to what he saw. There is a difference as to this part of the question here, in that it is claimed he never saw it at all, and, never having seen it, must consequently have sworn falsely. So that you will keep up this distinction all the way through your deliberations, between what he is charged with swearing, and the evidence as to whether he was in the alley or not.' Error for the reasons set forth in the preceding ground; also, because misleading, and containing expressions of opinion as to what had been proved and of the guilt of defendant. (4) The court charged 'You will observe that the main fact charged as having been sworn to falsely--the leading fact, the fact around which all the other facts revolve--is as to whether Gresham, in that encounter with Eddleman, held in his hand a knife. Now, first settle that matter in your minds, as to whether you believe from the evidence that Gresham held in his hand a knife. That is not all. It is material, not only that Gresham should have held in his hand a knife, in order to have matter that is material to the issue, but that he was advancing upon Eddleman with that knife. The language in the bill of indictment is that the defendant swore that Eddleman was backing towards the back door. Therefore, if you should believe that he was not backing towards that back door, and that Gresham was not advancing, which is the same thing, why, then you must consider whether you believe that to be false or not; and that, after backing within eight feet of the door, he shot said Gresham, who was within two or three feet of him; that Eddleman backed from Gresham; that Gresham was advancing; and that, when the shot was fired, Gresham was within two or three feet of Eddleman. Thus, gentleman of the jury, there is the knife, which plays such a conspicuous part in that issue, and which is the main element in that case of Eddleman's defense, and the principal element of falsehood that is charged to have been committed in this case.' Error-- First, because confused and misleading; second, because minutely argumentative, in setting forth the state's side of the case without correspondent mention of defendants' side, and nowhere in the entire charge is defendant's side of the case mentioned or dwelt upon; third, because the court singles out particular parts of the assignments of perjury, and lays great stress thereon, in distinction to other parts, to the detriment of defendant." "(8) The court charged: 'In other words, I wish you to understand, if you believe from the evidence that the defendant made known at a particular time afterwards, or that it became known, that he was a witness in that case, that that is nothing, and, as evidence, is not to be weighted in his favor, because, unless that was sustained by some other facts in the case, it is one and the same thing. It is what the defendant himself says in support of his oath. You must be satisfied from the evidence that, no matter when that fact took place; no matter when or where,--he knew that he was a witness, and that he swore falsely at that time. And, under the rules of law I have given you in charge, under the facts put before you in this case as to the point of time when this defendant ascertained, or where it was ascertained, that he was a witness, that is not to be weighed in his behalf, and is to be tested by what occurred on the trial of the case.' Error-- First, because, under the case as contended for by the state, alleging bribery and conspiracy, the particular time when McCord was first known as a witness in the Eddleman case, or had witnessed the fatal rencounter, was a most important circumstance, which should have gone to the jury, and been duly considered by them in passing on the question of conspiracy, or bribery, or good faith of defendant; second, because painfully argumentative against the defendant. (9) The court charged: 'This does not prohibit you from looking into all the circumstances that tend to the looking into the truth or falsity of that statement that was given in evidence upon this trial; and if you should believe from the evidence all of the facts in this case, that the evidence of this defendant in the trial of Eddleman was a contrivance that was gotten up subsequently to the transaction, and was in specific terms manufactured evidence; and if, in the progress of your investigations, you find it necessary to resort to all the surrounding circumstances in the case, the time, and the amount of the evidence, and the men who testified, and still, after having by these means thrown upon it all light that the evidence affords, you may pursue your investigations, and see whether this was or not such a contrivance or arrangement, and throw all the light possible upon it.' Error, because argumentative, reiteration of the state's theory, and containing an intimation as to what the court believed had been proved. (10) The court charged: 'I have charged you that it matters not, it is not necessary for the establishment of perjury, if you believe that the defendant was in the alley at all. That, however, like the other matters that I have called your attention to, is an important factor in the case. You have a right to investigate the matter, and see whether the evidence is sufficient to convince your minds, beyond a reasonable doubt, that this defendant was not in the alley. If you should believe that he was not in the alley,--believe it beyond a reasonable doubt,--and find, besides, that what he swore to was not the truth, it will be your duty to find the defendant guilty; not but that he might have been in the alley, and yet sworn falsely as to the facts,--might have sworn falsely as to the facts.' Error, for the reason set forth in the assignment of error in the second ground; wrongfully singling out one part of the assignments of perjury in distinction to the others, and giving undue prominence thereto. (11) The court, after correctly charging the law as to defendant's statement, added the following: 'That is your right; and, under the law, I am bound to give it to you in charge. In reference to the statement, the statement consists, or should consist, of facts that are pertinent to the defense, and therefore you are to choose between those facts which go to the defense of the defendant and those facts in evidence, which you may believe to be facts that you believe go to the conviction of the prisoner; and between the two your judgment is supreme. The statement is not evidence, but it only becomes available if the jury shall choose to give it effect.' Error-- First, because it detracts from the force and worth of a prisoner's statement allowed by law, showing that the opinion of the court was that the prisoner's statement was worth but little, but that he was compelled by law to refer to it; and second, it was misleading, relating to an hypothesis not supported by the...