Shelton v. State
| Decision Date | 28 May 1946 |
| Court | Florida Supreme Court |
| Parties | SHELTON v. STATE. |
Appeal from Circuit Court, Columbia County; Hal. W. Adams judge.
Davis Davis & McClure and W. Turner Davis, all of Madison, for appellant.
J. Tom Watson, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.
The appellant was convicted of having testified, before a special master in his suit for divorce, that his wife lived at McRae, Georgia, when he knew that she dwelt at the home of her mother in Hapeville, Georgia. He was adjudged guilty of perjury, and appealed.
It seems appropriate first to determine whether the place of residence of the defendant in the divorce case was material to such a degree that false testimony about it would constitute perjury. An essential element of this crime is the untruth of a statement made under oath anent some matter material to the main or a secondary issue. The matter bears this character if it "could have influenced the tribunal on the issue before it." Fields v. State, 94 Fla. 490, 114 So. 317, 318. Certainly the domicile of a defendant is an important allegation in a bill of complaint. It is provided in Section 63.28, Florida Statutes 1941, and F.S.A., that 'it shall be sufficient that a bill in equity shall contain: First: The name, and when known, the residence of each plaintiff and defendant,' etc. It follows that testimony supporting such an averment would be relevant; whether a misstatement with reference to it would be so vital so to amount to perjury would depend on the circumstances, as we shall demonstrate.
In the divorce case the appellant had alleged that his wife lived in McRae. It is conceivable that her residence could have become inconsequential had she been served with process personally or appeared in the case, State v. Rowe, 149 Fla 494, 6 So.2d 267, but she was made a party by constructive service, and she did not appear. As a matter of fact, the evidence tends to show that she first learned of the suit long after the decree was entered. Attached to the bill was an affidavit executed by appellant containing the statement that the defendant lived in McRae and received her mail there, 'general delivery.' On the strength of this representation, under oath, the clerk of the circuit court addressed an order to appear to 'Rosabell Shelton [the wife], General Delivery, McRae, Georgia.' The same designation appears in the affidavit of the publisher and the clerk's certificate of publishing, posting and mailing. Upon failure of the defendant to respond to the notice a decree pro confesso was entered at the instance of appellant's counsel.
It is patent to us that under such circumstances, as suggested in State v. Rowe supra , the residence of the defendant became quite material. If appellant had testified that she was in Hapeville instead of McRae, the master and the chancellor would have immediately discovered that the court had no jurisdiction of defendant's person, the service having been based entirely on an incorrect or untrue affidavit. But appellant's testimony corresponded with the allegations in...
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Wells v. State, 71--1257
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Kline v. State, AR-204
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State v. Fabian, 152
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