Rivers v. State

• Decision Date: 06 February 1893
• Citation: 97 Ala. 72,12 So. 434
• Parties: RIVERS v. STATE.
• Court: Alabama Supreme Court

12 So. 434

97 Ala. 72

RIVERS v. STATE.

Supreme Court of Alabama

February 6, 1893

Appeal from city court of Montgomery; Thomas M. Arrington, Judge.

Bill Rivers was convicted of giving a person money to induce him to commit perjury, and appeals. Reversed.

John Gindrat Winter, for appellant.

Wm. L Martin, Atty. Gen., for the State.

COLEMAN J.

The defendant was indicted and prosecuted under section 3920 of the Criminal Code. A demurrer to the indictment was overruled, and this ruling of the court presents the first question for our consideration. We have held that under our system of pleading "indictments are rather a statement of legal conclusions than of facts." The forms given in the Code, and which have been declared sufficient in cases to which they are applicable, fully sustain the proposition. The statute (Code § 4366) provides that "in other cases [when the forms are not given] forms may be used as near similar as the nature of the case and the rules prescribed in this chapter will permit." The rule here stated must be construed in connection with, and as explained by, section 4368 of the same chapter of the Code, which is as follows "4368. Statement of the Offense. An indictment must state the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in such manner as to enable a person of common understanding to know what is intended, and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment," etc. These statutory enactments are subject to the constitutional provision ^[1] that "the accused has a right to demand the nature and cause of the accusation." The constitutional requirement is that he shall know both the "nature and cause" of the accusation. Apply these rules of law to the present indictment. It charges that "Bill Rivers did corruptly give or offer to one Isham Warren three dollars in money which was a valuable thing, with intent to induce or influence said Warren to commit a certain crime punishable as a felony, to wit, the crime of perjury, against the peace and dignity," etc. By section 3920 the corruptly giving, or offer to give, or promise of, any gift, gratuity, or thing of value to another person, with the intent to induce or influence such person to commit any crime or offense punishable as a felony, (in this case, perjury,) is made a felony. Sections 3906 and 3907 of the Code define "perjury" and "subornation of perjury," and for the offense of perjury the form for an indictment is prescribed. Without section 3920, a person indicted for subornation of perjury under section 3906 might have been convicted for an "attempt" to suborn another; this not only on the principle that an indictment for the offense included every "attempt" to commit the offense, but is authorized by the statute. Code, § 4482; Edmond's Case, 70 Ala. 8; Wolf's Case, 41 Ala. 412. The "attempt" to commit the offense, under section 3906, formerly was only a misdemeanor, but by section 3920 the attempt, when made by corruptly giving, offering, or promising a "gift, gratuity or promise, or thing of value," was made a felony. Where the means were corruptly used, and accomplished the purpose intended, and procured the false swearing, the party is indictable under sections 3906 or 3907, as the facts may show; but when the offer is made to induce or influence a person to commit a felony as provided in the statute, and fails of its purpose, as in this case, the party is indictable under section 3920 of the Criminal Code. In framing an indictment for perjury or subornation of perjury under sections 3906, 3907, principles of criminal pleading and the form given in the Code, ^[2] required not only that the subject-matter of the alleged offense be set out in the indictment, but the facts falsely sworn to must be stated, and the officer or the court before whom or in which the offense was committed must be stated. A person could not lawfully be convicted of an attempt to suborn another to commit perjury under an indictment for subornation which failed to make these necessary averments. Such an indictment would be fatally defective. The fact that an attempt which consists of an offer to bribe by a gift is made a felony by statute cannot, upon principle, be held to require less strictness in framing the indictment than was required before such act was made a felony. This principle was directly decided in the case of Beasley v. State, 18 Ala. 538, upon the sufficiency of an indictment framed for an assault with intent to murder, after the statute made such an offense a felony. The opinion proceeds as follows, (Dargan, C.J.:) "But it is contended for the state that, inasmuch as our statute makes an assault with intent to commit murder a felony, it is only necessary to allege the offense in the language of the act. The rule is that, when a statute creates a new offense, and describes its ingredients, it is sufficient in an indictment to describe the offense in the language of the act. But an assault with intent to murder is not an offense created by statute. It existed at common law; and our Penal Code, without altering the constituents of this crime, changes the...