Saucier v. State

Decision Date29 March 1909
Docket Number13,619
Citation95 Miss. 226,48 So. 840
CourtMississippi Supreme Court

FROM the circuit court of Harrison county, HON. WILLIAM H. HARDY Judge.

Saucier appellant, was indicted for perjury, convicted, sentenced to the penitentiary for three years, and appealed to the supreme court.

The indictment charged that Saucier, the appellant, "on the 26th day of August, 1908, at a term of the justice of the peace court, and in said court," swore falsely while testifying as a witness in the trial of one Bryant Lemon charged with the robbery of one Belaise. On the trial of Saucier it developed that the court of the justice of the peace was held on August 27, 1908, instead of the day mentioned in the indictment, whereupon, the state, over appellant's objection, was allowed to amend the indictment to correspond to the proof. In the supreme court this action of the court below was assigned as error, and also the court's allowing in evidence on the trial, over appellant's objection, testimony relative to certain conversations between Bryant Lemon and certain third parties held shortly prior to Lemon's trial before the justice of the peace, the subject matter of which in no manner concerned Saucier, these conversations in fact not being in Saucier's presence or hearing; and the allowing evidence on the trial, over appellant's objection, to show that Bryant Lemon had fled the country, this being shown not only by oral testimony but by the introduction of the judgment of forfeiture on Lemon's appearance bond.

Judgment reversed and cause remanded.

J. H Mize, for appellant.

The court below committed error in allowing the state to show, by the testimony of George Malone, Emma Speers and Lillian Gardner, different conversations held between Bryant Lemon and themselves. These conversations concerned the actions of Lemon and Belaise and a negro hack driver enroute to a disreputable woman's house. Appellant's counsel repeatedly objected to the wandering narratives of the witnesses. The testimony was in itself irrelevant to the issue of Saucier's guilt or innocence of perjury, and concerned conversations held without the presence or hearing of Saucier. The court should have excluded it. Brown v State, 57 Miss. 424.

The court below further erred in admitting in evidence the fact that Bryant Lemon had forfeited his appearance bond and had fled from justice. Whether Lemon, a person charged with robbery, had or had not fled from his trial in the circuit court could in no way affect the question of Saucier's perjury. Yet the court below actually allowed the state to introduce before the jury in the case at bar the judgment of forfeiture taken on Lemon's bond. Hence, the judgment against appellant must be reversed. Pulpus v. State, 82 Miss. 555, 34 So. 2; People v. Stanley, 47 Cal. 114; Wigmore, Ev. § 276, c.

The court below allowed the state to introduce before the jury the pantaloons of Belaise, whom Bryant Lemon was accused of robbing. This was so palpably erroneous that reference to decisions is useless.

The first instruction granted in favor of the state is erronous. It tells the jury that if they find Saucier to be guilty they must convict, yet it gives the jury no guide as to what amount of evidence the state must show in order to convict. It should have contained the qualification that the jury must, beyond a reasonable doubt, believe from the evidence as expressed through two witnesses or one witness and corroborating circumstances, that the appellant swore falsely. And the attention of the supreme court is called to the clause, "and that the same was a material matter in said cause," in the instruction. The jury were, by this clause, left to determine the materiality of Saucier's testimony before the justice of the peace. Yet this question of materiality of such testimony was not for the jury but for the court. Cothran v. State, 39 Miss. 541; United States v. Singleton, 54 F. 488; State v. Swafford, 98 Ia. 362; Stanley v. United States, 1 Okl. 336; State v. Fannon, 158 Mo. 149.

The indictment charged that Saucier, the appellant, committed perjury on August 26, while the evidence tended to show that the offense, if it occurred at all, was on August 27. The appellant strenuously objected to the state's amending the indictment, but without avail. Code 1906, § 1508, with reference to amendments of indictments will not apply, for the reason that it has no reference to amending an indictment as to the time when an offense was committed. Kline v. State, 44 Miss. 317; Hodnett v. State, 66 Miss. 26. That the day on which the perjury was committed is a material element of the allegations of the indictment for perjury, is well settled. Rhodes v. Commonwealth, 78 Va. 696; United States v. McNeal, 1 Gall. (U.S.) 387; United States v. Law, 50 F. 915; State v. Lewis, 93 N.C. 581; Lucas v. State, 22 Tex.App. 322. In Whittle v. State, 79 Miss. 327, it was held that, in a trial for perjury, the state must prove by the record of the trial of the cause, if in existence, that the person upon whose trial the alleged perjury was committed, was tried on the day allegged in the indictment for perjury. And see Matthews v. United States, 161 U.S. 500.

George Butler, assistant-attorney general, for appellee.

The indictment as originally drawn charged that appellant "on the 26th day of August, 1908, at a term of the justice of the peace court swore falsely." Upon the trial it developed that the justice court was held and the alleged false testimony given on August 27, 1908, and upon motion of the district attorney and over appellant's objection, the indictment was amended accordingly.

For the state it is contended in the first place, that no amendment of the indictment was necessary. Time is certainly not of the essence of the offense of perjury. Time enters only into certain classes of arson and other crimes mentioned in the Code. The trial before the justice of the peace was a preliminary trial. It was as truly perjury to swear falsely on the 26th of August as it was on the 27th of August. The crime might be charged as being perpetrated on any date. The date might have been wholly omitted, or it might have been laid on an impossible date or a day that never happened, and the indictment for that reason would not have been demurrable. Code 1906, § 1428.

Counsel for appellant cites an array of authority holding that in an indictment for perjury the day on which the perjury was committed must be duly laid, and that it is a material element of the crime. But he seemingly overlooks the fact that at common law, and independent of a statutory provision to the contrary, the date of the commission of any crime must be laid on a day certain. 1 Bishop, Criminal Practice, 387, 388.

In State v. Offutt, 4 Blackf. (Ind.) 355, it was held in a perjury charge that the exact date must be laid, following the common-law doctrine of that state, as to laying the date of all offenses. But subsequently this holding has been seemingly repudiated.

The Virginia court in Rhodes v. Commonwealth, 87 Va. 698, following the case of United States v. Bowman, 2 Wash. 328, and the Maine court in the case of State v. Fenlason, 79 Me. 117, seemingly held that time was a material element of the offense of perjury, but in those cases the error committed was that the allegation of time was descriptive of the offense, as clearly pointed out in Bishop, Crim. Law Prac. 401, 488, 2 Crim. Prac. 911. In the instant case the date of the alleged commission of the crime is not part of the description of the offense. So that we say that unless the allegation of time is descriptive of the offense it need not be laid. State v. Peters, 107 N.C. 876; Lucas v. State, 27 Tex.App. 322; State v. Ah Lee, 18 Or. 540; Commonwealth v. Monahan, 8 Gray, 119; Roberts v. People, 99 Ill. 275. In 16 Ency. Pl. & Pr. 348, it is said that "By the weight of authority a variance between the day charged in the indictment as that on which the testimony was given and the day proved on the trial, is immaterial" and the cases of Commonwealth v. Loper, 113 Mass. 393; Keaton v. People, 32 Mich. 484; Lucas v. State, 27 Tex.App. 322; Wood v. People, 3 Thomp. & C. (N. Y.) 506, are cited as supporting the text. So that we say it was not necessary to amend the indictment and of course any amendment made under those circumstances would be harmless. Martin v. State, 89 Miss. 633, 47 So. 426.

The next assignment brings into review the admission of certain conversations of certain witnesses with Lemon, while appellant was not present. It is true that in Brown v. State, 57 Miss. 424, seemingly the admission of such testimony was condemned. But it occurs to us that the truth or falsity of appellant's testimony depends largely upon the guilt or innocence of Lemon. In other words, the state did not attempt to account for the whereabouts of appellant during the time in question, but did undertake to account for Lemon during that time and to show that appellant was not with him. Appellant was not on trial for robbery. If he had been, this testimony would have been clearly incompetent. But where the state is attempting to show the falsity of appellant's testimony, by showing the whereabouts of Lemon during the whole time in controversy, remembering that the guilt of Lemon might be shown, we contend that this testimony was competent. All the cases bearing upon the point that we have been able to find are collected in 9 Ency. Evidence, notes, page 766, and in the case of Martin v. Texas, 33 Tex.App. 317, which is a direct authority for our position here.

It was proper to prove that Beleasie had been robbed. That was the crime being inquired into at the time the perjury by appellant was committed.


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