Porter v. State, 30477

• Decision Date: 13 October 1965
• Docket Number: No. 30477,30477
• Citation: 210 N.E.2d 657,246 Ind. 701
• Parties: Thomas A. PORTER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 657

210 N.E.2d 657

246 Ind. 701

Thomas A. PORTER, Appellant, v. STATE of Indiana, Appellee.

No. 30477.

Supreme Court of Indiana.

Oct. 13, 1965.

Floyd E. Wadsworth, Shoals, Mellen & Mellen, Bedford, for appellant.

Edwin K. Steers, Atty. Gen., David S. Wedding, Deputy Atty. Gen., for appellee.

MYERS, Judge.

This is an appeal from a judgment of the Daviess Circuit Court wherein appellant was accused and convicted of perjury. The issues were formed by an amended affidavit charging appellant with the crime of perjury and appellant's plea of not guilty thereto, the same having been entered after the court had overruled appellant's motion to quash the amended affidavit. The cause was tried before a jury which brought in a verdict of guilty. Appellant was sentenced to the Indiana State Prison for a term of not less than one year nor more than ten years. A motion for new trial was duty filed and overruled by the court. This appeal followed.

Appellant assigns as error the following grounds:

'1. That the Court erred in overruling Appellant's motion to quash the amended affidavit filed against him in this cause.

'2. That the Court erred in overruling the Appellant's motion for a new trial.

'3. That the Court erred in overuling the Appellant's written objection to the rendition of the judgment herein.'

In Specification No. 1 of the Argument as set forth in his brief, appellant claims the trial court erred in overruling his motion to quash the amended affidavit.

The statute on perjury provides as follows:

'Whoever, having taken a lawful oath or affirmation in any matter in which, by law, an oath or affirmation may be required, shall, upon such oath or affirmation, swear or affirm wilfully, corruptly and falsely touching a matter material to the point in question, shall be deemed guilty of perjury, and, on conviction, shall be imprisoned in the state prison for not less than one nor more than ten years.' Section 10-3801, Burns' Ind.Stat., 1956 Replacement.

The statute concerning the indictment or affidavit for perjury is as follows:

'In an indictment or affidavit for perjury or subornation of perjury, it shall be necessary to set forth only the substance of the controversy or the matter in respect to which the crime was committed, and in what court or before whom the oath alleged to be false was taken, and that the court or person before whom it was taken had authority to administer it, with the proper averments to falsify the matter whereof the perjury may be assigned, without setting forth any part of any record or proceeding, or the commission or authority of the court or other authority before which the perjury was committed. And in an indictment or affidavit for pejury in swearing to any written instrument, it shall only be necessary to set forth that part of the instrument alleged to have been falsely sworn, to, and to negative the same, with the name of the officer or court before whom the instrument was sworn to.' Section 9-1116, Burns' Ind.Stat., 1956 Replacement.

The body of the amended affidavit which appellant attacks reads as follows:

'Horace R. Han being duly sworn upon his oath states that he is informed and verily believes that on the 30th day of January, 1962, at and in the County of Daviess, State of Indiana, before Marshall Jett, then and there Justice of Peace in and for Washington Township in said County, duly elected and qualified and commissioned, a certain misdemeanor was then and there pending against Thomas A. Porter, wherein he was discharged with disobeying a stop sign on Highway 45, and a certain misdemeanor wherein Gladys J. Porter was charged with reckless driving on Highway 645, and each of said defendants having entered a plea of not guilty to said charges, such charges were then and there pending before said Marshall Jett as such Justice of Peace, and was there tried in due form of law; that upon the trial of said causes, Thomas A. Porter appeared as a witness for and in behalf of the said Gladys J. Porter and Thomas A. Porter, and he was then and there duly sworn by the said Marshall Jett as such Justice of Peace, as a witness, and examined in the said cause, the said Marshall Jett, as Justice of Peace, then and there having full power and complete authority to administer the said oath to the said Thomas A. Porter in a trial of this nature; that upon the trial of said cause it became material to the said issues to inquire whether the said Robert Dale Walker was proceeding north on Highway 45 at a point immediately north of its intersection of Highway 645 in the County of Daviess, State of Indiana, on the 5th day of January, 1962, and did then and there meet a southbound car occupied by Gladys J. Porter and Thomas A. Porter, and that there upon the said Thomas A. Porter, then and there being so sworn as witness as aforesaid, and having then and there taken a lawful oath in the said judicial proceedings where an oath or affirmation was by law required, did then and there on the trial of said causes before the said Justice of Peace, as aforesaid, knowingly, feloniously, wilfully, corruptly and falsely, and in a matter material to the trial of said charge, swear and testify in substance among other things, that the said Robert Dale Walker was proceeding north on Highway 45 in said county and state on the 5th day of January, 1962, whereas in truth and in fact the said Thomas A. Porter then and there knew the said Robert Dale Walker was in Lafayette, Indiana, on the 5th day of January, 1962, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State of Indiana.'

Appellant raises some technical objections concerning omissions in the allegations as to exact dates, locations on the highways and as to where Walker was on the particular day with relevance to the highways involved. We do not deem these to be pertinent or relevant to the issues.

It is claimed that the affidavit is defective because the proper statutory words regarding materiality were not used, and that the materiality of the false statement was not clearly shown. The statutory words regarding materiality consist of taking an oath corruptly and falsely 'touching a matter material to the point in question.' The affidavit uses the language 'in a matter material to the trial of said charge.'

It has been held that a charge of perjury does not need to follow the exact language of the statute; that substantial compliance with the statute is sufficient. Maddox v. State (1938), 213 Ind. 537, 12 N.E.2d 947. In our opinion, the wording of the affidavit was tantamount to the wording of the statute, and so there was substantial compliance.

As to whether the materiality of the false statement was clearly shown by the language of the affidavit, we come to the rule followed in this state that materiality may be pleaded by a general averment. State v. Dunn (1932), 203 Ind. 265, 180 N.E. 5, 80 A.L.R. 1437. This is a sufficient unless the facts alleged show as a matter of law that the false statement was not material to the issue. State v. Dunn, supra, at p. 273 of 203 Ind., 180 N.E. 5. Such is not the case here. Therefore, the general allegation of materiality was sufficient. State v. Kellis (1923), 193 Ind. 619, 141 N.E. 337.

In appellant's Specification No. 2 of the Argument, he claims that certain rulings of the trial court having to do with objections and exceptions on the admission of evidence constituted error. These were presented verbatim in the motion for new trial. While asserting that these rulings violated the basic rules of evidence, no argument or citation of authorities in support thereof is set forth. Thus, all points under this specification are waived and are not subject to consideration. Supreme Court Rule 2-17(e, f); Baker v. State (1964), Ind., 195 N.E.2d 91; Packwood et al. v. State (1963), 244 Ind. 585, 193 N.E.2d 494; Butler v. State (1964), 244 Ind. 620, 193 N.E.2d 899.

It is contended in Specification No. 3 that the verdict was not sustained by sufficient evidence and was contrary to law. There are a few ground rules which we are obliged to follow in considering these points.

On appeal, only the evidence most favorable to the State, together with all reasonable and logical inferences, will be considered. Tait v. State (1963), 244 Ind. 35, 188 N.E.2d 537.

In Byrd v. State (1962), 243 Ind. 452, 456, 185 N.E.2d 422, 424, this court stated:

'However, few rules of appellate procedure are more firmly established than this, that it is not within the...