Ross v. Com.

• Decision Date: 12 January 1893
• Citation: 20 S.W. 1043
• Parties: Ross v. Commonwealth.
• Court: Kentucky Court of Appeals

20 S.W. 1043

Ross v. Commonwealth.

Court of Appeals of Kentucky.

January 12, 1893

Appeal from circuit court, Graves county.

"Not to be officially reported."

John Ross, having been convicted of false swearing, appeals. Affirmed.

Hazelrigg J.

The appellant was tried and convicted in the Graves circuit court on a charge of false swearing. His punishment was fixed at confinement in the penitentiary for two years, and from that judgment he has appealed. The indictment sets out the date of the offense, the nature and style of the case in which the defendant testified, the court in which the judicial proceeding was pending, the officer who administered the oath, with accompanying averments as to the jurisdiction of the one and the authority of the other to do what each did the specific subject-matter of the alleged false swearing with special averment of its falsity, and the knowledge on defendant's part of its falsity. Thus was the defendant apprised of the specific charge against him by the allegations of an indictment of more than usual particularity, and one which comes up fully to all the requirements of the law. Com. v. Still, 83 Ky. 275; 2 Archb. Crim. Pl. & Pr. 965.

Instruction No. 1 given by the court, and objected to by the defendant closely follows the allegations of the indictment, and the guilt of the defendant is made to depend on the belief of the jury, beyond a reasonable doubt, of each and every charge contained therein. The other instructions were favorable to him, are not complained of, and are in fact unobjectionable. The defendant asked the court-which, however, it refused to do-to tell the jury that, before they could find him guilty they must believe that he "was at the tree at the time James Gary says he was there, as he passed by with his son Festus." The alleged crime of defendant consisted in swearing that he was not at or behind the tree, presumably to waylay Gary, as charged in the indictment; and for this he was being tried. No other time or occasion was attempted to be fixed by the proof than when Gary saw him there, and when his (Gary's) son was along, and the jury could not have so understood. Gary, the prosecutor, fixes that time at about 8 or 9 o'clock in the morning. He says it might have been as late as 10 o'clock. And Creasen, the corroborating witness, says it was about 15 minutes after 9 o'clock on that morning when he saw defendant at the tree. Some of the...