Shoemaker v. State
| Decision Date | 14 February 1925 |
| Docket Number | A-4589. |
| Parties | SHOEMAKER v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
The quantitative rule of evidence in perjury cases is the rule of this court, although the falsity of the evidence upon which the charge of perjury is based may be established by circumstantial evidence.
A conviction for perjury cannot be had upon proof alone that accused made contradictory statements under oath. The state must prove by extrinsic evidence that the statement upon which the prosecution is founded is false.
Where perjury is based on contradictory statements, under oath, the falsity of one of such statements as a basis for perjury cannot be proven by the unsworn statements of the accused.
Evidence examined, and found to be insufficient to sustain a conviction for perjury.
Appeal from District Court, Washington County; J. R. Charlton Judge.
Rose Shoemaker was convicted of perjury, and she appeals. Reversed and remanded.
Campbell & Ray, of Bartlesville, for plaintiff in error.
George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
An examination of the record discloses the following state of facts: Rose Shoemaker, formerly Rose Cherry, the plaintiff in error, had been the wife of W. C. Cherry, and was divorced from him. She was keeping house, and had two roomers; one a man by the name of Tally, and the other by the name of Shoemaker, whom she afterwards married. On the night of the 6th of March, 1921, a noise was heard outside of the house of the plaintiff in error, and Tally, taking a pistol, went outdoors, was shot and fatally wounded by some one outside the house. Cherry was charged with the crime, and had a preliminary hearing. The said Rose Shoemaker testified as a witness for the state at the preliminary, and in her testimony positively identified Cherry as the man who did the shooting. Her testimony was that she recognized him by his voice in an exclamation made at the time of the killing and by the manner in which he cleared his throat, about two hours prior to the killing, near the scene of the killing. Later at the trial of Cherry on the charge of murder, the plaintiff in error was again a witness for the state, but her evidence was unsatisfactory. She failed and refused to identify the defendant as she had at the preliminary, and this prosecution for perjury followed. At the time of the final trial her husband Shoemaker had left her, and was in Canada. It was the theory of the state that at the time of the final trial her mental attitude toward her former husband, Cherry, had changed; that she desired to shield him; and that her change of testimony was a willful and corrupt perjury.
It is the theory of the plaintiff in error that, in the light of information coming to the witness as to the whereabouts of Cherry on the night in question, and from being informed that it was not the voice of Cherry she heard at the time of the shooting, she had honestly become uncertain as to her identification of Cherry; that the only change in fact was from her testimony of positive identification to a less positive identification or statement that she believed the person identified was Cherry, though she might be mistaken and that it was an honest attempt to correct or qualify her former testimony.
Several assignments of error are presented in the able brief of the plaintiff in error. Among them, error of the court in admitting evidence of the testimony of the plaintiff in error other than set out in the information as a basis for the charge of perjury. Error of the court in its instructions and that the verdict in said cause is contrary to the law and the evidence.
From our examination of the briefs and the record, we believe that a consideration of the last assignments will dispose of the case. In the trial of this case the evidence is to the effect that the plaintiff in error testified on the final trial of Cherry in substance as alleged in the information; the transcript of her evidence being introduced in proof thereof. There was also introduced a transcript of the evidence of the plaintiff in error at the preliminary hearing of Cherry, and also a transcript of an unsworn statement made by the plaintiff in error taken before the county attorney, in substance the same as her testimony at the preliminary. The plaintiff in error testified in her own behalf and explained her change of testimony. Her explanation is not entirely satisfactory and yet it is not unreasonable.
Analyzing the record, there is no proof of the falsity of the testimony of the plaintiff in error on the trial of Cherry, on which the prosecution is based, except her own testimony given at the preliminary trial in that case, and her...
To continue reading
Request your trial