Scott v. State

• Decision Date: 13 January 1906
• Citation: 92 S.W. 241
• Parties: SCOTT v. STATE.
• Court: Arkansas Supreme Court

Page 241

92 S.W. 241

SCOTT v. STATE.

Supreme Court of Arkansas.

January 13, 1906.

Appeal from Circuit Court, Crawford County; Jeptha H. Evans, Judge.

Ed Scott was convicted of perjury, and he appeals. Affirmed.

Jesse E. London, for appellant. Robert L. Rogers, Atty. Gen., for the State.

RIDDICK, J.

This is an appeal from a judgment convicting the defendant, Ed Scott, of the crime of perjury, and sentencing him to imprisonment in the penitentiary for the period of one year as punishment therefor. The facts are that Ed Scott had been previously indicted for an assault with intent to kill one Garfield Cook, by cutting him with a knife. On the trial of that case he took the stand as a witness in his own behalf, and testified that he made no assault and had no knife with him at the time. He was afterwards indicted for perjury, the indictment being based on his testimony that he had no knife in his hand and that he said nothing and did nothing to Cook at the time he was alleged to have assaulted him.

No objection was made on the trial to the indictment in this case, and it seems to us to be according to the usual form and sufficient. Counsel for defendant says that the court erred in failing to charge the jury that a conviction for perjury cannot be had, save on the testimony of two credible witnesses or on that of one witness corroborated by other evidence, showing that the statements of defendant on oath for which he was indicted were in fact false. But defendant asked no such instruction. The cases he cites from Texas, which hold that it is a fatal error for the court to omit giving such an instruction even though not requested, are in conflict with the general rule and with the decisions in this state, and cannot be followed here. As the defendant asked for no instruction on that point he has under our practice no right to complain that the court did not give it. White v. McCracken, 60 Ark. 613, 31 S. W. 882; Fordyce v. Jackson, 56 Ark. 602, 20 S. W. 528, 597.

Counsel for defendant did request the court to instruct the jury that if the defendant was so far from Cook, at the time he was alleged to have assaulted him with a knife, that he could not cut or harm him with the knife, then defendant could not be convicted of perjury although he testified falsely that he had no knife at that time. The court refused to give an instruction to this effect and counsel contend that this was error. But, in order to convict the defendant of having committed perjury in that case, it was not necessary to show that he was guilty of the assault charged in that case. He was charged in that case with having committed an assault with a knife. It was then material to know whether or not he had a knife at that time. He testified that he had no knife and now contends that even if this testimony was false it was not material because the prosecution for an...