Moore v. State

• Decision Date: 04 November 1907
• Docket Number: 12807
• Citation: 91 Miss. 250,44 So. 817
• Court: Mississippi Supreme Court
• Parties: WILLIAM D. MOORE v. STATE OF MISSISSIPPI

44 So. 817

91 Miss. 250

WILLIAM D. MOORE v. STATE OF MISSISSIPPI

No. 12807

Supreme Court of Mississippi

November 4, 1907

FROM the circuit court of, second district, Panola county, HON JAMES B. BOOTHE, Judge.

Moore the appellant, was indicted for perjury, tried, convicted and sentenced to the penitentiary for ten years, and appealed to the supreme court.

The indictment was as follows:

"The grand jurors of the state of Mississippi, elected, summoned empaneled, sworn and charged to inquire in and for the body of second district of Panola county, state of Mississippi, at the term aforesaid of the court aforesaid, in the name and by the authority of the state of Mississippi, upon their oaths present that William B. Moore, late of the county aforesaid on the first day of October, A. D., 1902, with force and arms in the county and district aforesaid, and within the jurisdiction of this court, being then and there a witness in the circuit court of said county and district before HON PERRIN H. LOWREY, judge of said court, in the case of the state of Mississippi against said William D. Moore charged with grand larceny in the stealing of a mule, the property of one Whitten, the said court having jurisdiction to try and determine said case, the said William D. Moore being sworn by the clerk of said court, who was by law authorized to administer oaths, and the said Moore then and there took his corporal oath and did then and there swear and say that the evidence he should give before said court and jury in the trial of said case should be the truth, the whole truth and nothing but the truth, so help him God, and being sworn as aforesaid as a witness, it became and was a material matter in the trial of said case on the charge of grand larceny, whether he, the said Moore, met one Robert Ivy in his, Moore's, field on Monday night, the 10th day of August, 1901, when he, the said Robert Ivy, brought the mule alleged to have been stolen, to him, the said Moore, by his, Moore's, direction, he, the said William D. Moore, being sworn, as aforesaid, did unlawfully, willfully, feloniously, falsely, knowingly and corruptly swear and say that he, the said Moore, did not leave his house that night, that he was sick and taking medicine, and that Joseph Hamilton, a witness in said case, was at his, Moore's, house that night and sat up with him, William D. Moore, and gave him, Moore, medicine during the night: Whereas, in truth and in fact, Joseph Hamilton was not at his, Moore's, house that night, and did not set up with said Moore and give him medicine as he, the said Moore, did so swear in said case; all of which was then and there well known to him, the said William D. Moore, and therefore the grand jury aforesaid on their oath aforesaid, say that William D. Moore, in the trial of said case of the state of Mississippi against him, the said William D. Moore, in the circuit court of the second district of Panola county, did commit felonious and corrupt and willful perjury against the peace and dignity of the state of Mississippi."

The opinion of the court further states the facts.

Reversed and remanded.

Pearson & Lamb, for appellant.

The motion in arrest of judgment should have been sustained. The indictment is vitally defective in that it charges no crime known to the law. It is correct in every particular except one, but that one is vital -- going to the very heart of the case. An indictment for perjury must set out the evidence given, and such evidence must be charged to be material; and the evidence so set out in the indictment as material and as given must also be alleged in the indictment, to be untrue. In the indictment in question, whether Moore met Robert Ivy in Moore's field a certain Monday night is alleged to be material and it is properly charged that he did not leave his house that night, which allegation was equivalent to charging that he did not meet Robert Ivy in the field that night. Hence, if the indictment had charged that Moore's statement under oath as to his not leaving his house that night was untrue, it would have been a good indictment for perjury. But the indictment utterly fails to charge that Moore did not leave his house that night, but only avers that Joseph Hamilton was not at his, Moore's, house that night, did not sit up with Moore, and did not give Moore medicine. But the indictment says that Moore went out of his way and said an immaterial thing, namely, that Joseph Hamilton was at Moore's house and that in such statement he lied about an immaterial matter. This constituted no crime. It might be true that Moore did not leave his house that night, the only material thing involved, and yet, be untrue that Hamilton sat up with him, was at his house and gave him medicine. Moore might have remained in his house every second of the night in question even had Hamilton been dead and buried.

On the other hand it may be true that Hamilton was at Moore's house on the night in question, sat up with him and gave him medicine during the night, and still, during the same night Moore might have gone to the field, met Ivy, stolen a mule or a dozen mules.

An indictment for perjury must allege that the untrue statement was about a material thing. A pleader may show its materiality by charging facts that make it material or by merely averring it to be material. In this case he merely charges that it was material whether Moore met Ivy in the field that night. Moore said he did not so meet Ivy. The indictment wholly and utterly fails to show that he did meet Ivy. As it is necessary to negative the truth of the...