Milstead v. Com.
| Decision Date | 01 June 1899 |
| Citation | 51 S.W. 451 |
| Parties | MILSTEAD v. COMMONWEALTH. [1] |
| Court | Kentucky Court of Appeals |
Appeal from circuit court, Livingston county.
"Not to be officially reported."
J. M Milstead was convicted of false swearing, and he appeals. Affirmed.
J. C Hodge and J. W. Bush, for appellant.
W. S Taylor and M. H. Thatcher, for the Commonwealth.
This appeal is from a judgment of conviction for false swearing. The indictment charges that, in the prosecution of the commonwealth against Reuben and Tom Ross on a motion for bail before the Livingston circuit court, the appellant testified that he "heard a conversation in Grand Rivers, after the examining trial of Reuben and Tom Ross, between W. C. Bell and George [Cooney] Howell, and that George [Cooney] Howell said that he [Howell] had done all he could in the examining trial for the Millers, and that he [Howell] was going to do his best in the circuit court, and that he [Howell] did not see how the Ross boys got bail, and that he [Howell] had done all he could against them, and would do so again." It is averred in the indictment that this testimony was willfully and knowingly false. It is claimed that the indictment is not good, because it fails to allege that Howell was a witness on the trial of the motion for bail. We do not think it was necessary to make that averment. The indictment is for false swearing, based on section 1174, Ky. St., which reads as follows: "If any person, in any matter which is or may be judicially pending, or which is being investigated by a grand jury, or on any subject in which he can legally be sworn, or on which he is required to be sworn, when sworn by a person authorized by law to administer an oath, shall willfully and knowingly swear, depose or give in evidence that which is false, he shall be confined in the penitentiary not less than one nor more than five years." It was unnecessary to allege in the indictment that the testimony was material, as under this statute it is not necessary that the matter to which a witness testifies falsely should have been material, in order that he might be guilty under it. It is sufficient if he is required to, and does, testify. Com. v. Powell, 2 Metc. (Ky.) 10; Com. v Turner, 98 Ky. 526, 33 S.W. 88; Kerfoot v. Com., 89 Ky. 174, 12 S.W. 189; Com. v. Maynard, 91 Ky. 131, 15 S.W. 52. False swearing is made an offense under the statute, and it does not require the same averments to make the indictment good as in one charging perjury.
On the trial of this case it was shown that Howell was a witness for the commonwealth on the motion for bail in the case of the commonwealth against the Rosses; and the purpose of the testimony of the appellant was to show that he was a partisan in the prosecution, or was corrupt, and thus affect his credibility as a witness. The testimony of the appellant was...
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