Smith v. State

• Citation: 103 Ala. 57,15 So. 866
• Parties: SMITH v. STATE.
• Decision Date: 20 June 1894
• Court: Supreme Court of Alabama

15 So. 866

103 Ala. 57

SMITH v. STATE.

Supreme Court of Alabama

June 20, 1894

Appeal from city court of Anniston; James W. Topsley, Judge.

Sam Smith was convicted of perjury, and appeals. Affirmed.

The appellant was indicted, tried, and convicted under the following indictment: "The grand jury of said county charge that, before the finding of this indictment, that Sam Smith, on the trial of a civil action in the city court of Anniston for damages for personal injury to John Smith while said John Smith was an alleged passenger on one of the trains of the Richmond & Danville Railroad Company, leaving Anniston for Birmingham, on June 17th, 1891, in which John Smith was plaintiff, and the Richmond & Danville Railroad Company, a corporation under the laws of the state of Virginia defendant, being duly sworn by the clerk of said court, who had authority to administer such oath, falsely swore that he (Sam Smith) saw John Smith buy a ticket at Anniston for Birmingham on said train; that he (said Sam Smith) got on said train at Anniston, and sat in the same car with John Smith, and a little in front of him; that after leaving Irondale the conductor went to said John Smith, and demanded his fare to Birmingham; that said John Smith told him (the conductor) that he had paid his fare to Birmingham; that the conductor commenced abusing him (said John Smith), grabbed him by the left arm, pushed him to the rear door of the car cursed the said John Smith, and pushed him off the car while it was in motion,-the matters so sworn to being material, and the oath of said Sam Smith in relation to such matters being willfully and corruptly false, against the peace and dignity of the state of Alabama." The defendant demurred to this indictment on the grounds (1) that the substance of the proceedings or pleadings in the suit in which defendant is charged with having taken a false oath is not set out in the indictment; (2) that the indictment fails to show that the cause of action in which the defendant is charged with taking a false oath arose within the jurisdiction of the city court of Anniston; (3) the said indictment fails to aver sufficiently what part or parts of the defendant's testimony are false; (4) it fails to show sufficiently for what crime the defendant was indicted. This demurrer was overruled, and the defendant duly excepted. The defendant pleaded not guilty, and, by special plea, that the cause of action in which the defendant is averred to have sworn falsely was not within the jurisdiction of the city court of Anniston. On motion of the state this special plea was stricken from the file, as frivolous and as being no answer to the indictment, and to this ruling the defendant duly excepted.

Upon the trial of the cause the state introduced evidence tending to show that on the trial of the cause of action in the city court of Anniston, in which one John Smith was the plaintiff and the Richmond & Danville Railroad Company was defendant brought for the recovery of damages for personal injuries sustained by the said John Smith, by being ejected from the train of the railroad company, the defendant in the present case swore, among other things, that he saw the said John Smith buy a ticket at Anniston for Birmingham over said road that said John Smith was a passenger on said train, and, after having given his ticket to the conductor, was ejected by the conductor from the train before reaching Birmingham; and that this testimony was false. Upon the examination of the clerk of the city court of Anniston, he testified that he was present at the trial of the cause of John Smith against the Richmond & Danville Railroad Company, and that the defendant in the present case was subpoenaed as a witness in the case of John Smith v. Richmond & Danville Railroad Company, and answered to his name, and was sworn and examined as a witness therein. At the request of the solicitor the said clerk of the city court produced the subpoena docket in the case of John Smith v. Richmond & Danville Railroad Company, and in connection therewith offered to introduce the checks thereon, which showed that the name of the defendant in this case was checked off, the clerk testifying that the said names had been checked off as the witnesses answered to their names. The defendant objected to the introduction of this docket and the entries thereon because they were immaterial and irrelevant and incompetent evidence. The court overruled the objection, and the defendant duly excepted. Wait, a witness for the state, testified that he saw and heard this defendant testify on the trial of the case against the railroad company. The testimony for the defendant tended to show that the facts testified to by him on the trial of the case of John Smith v. Richmond & Danville Railroad Company were true. One Donovan was introduced as a witness for the defendant, and, after testifying that he knew the general reputation of the defendant in the community in which he lived, stated that his reputation was good; that "he had never heard anything against him until this matter came up." On cross-examination the counsel for the state asked the witness this question: "Have you not heard it said, before this indictment was found, and after the case of John Smith v. Richmond & Danville Railroad Company was tried in this court, in which John Smith claimed damages for injuries, that the defendant and others had conspired together to recover damages by false swearing as to how he was ejected from the train?" The defendant objected to this question on the ground that it was irrelevant, incompetent, and illegal, "and because the question calls for evidence of a rumor arising from and growing out of the same matters and transactions about which the defendant is charged with false swearing." But the court overruled the objection, and allowed the question, "on the ground that the witness had said in his direct examination that he had heard nothing against the defendant before the indictment was found." To this ruling the defendant duly excepted. To the question asked, the witness answered that he had heard that the defendant and others, in the suit referred to, had "sworn to things which they did not see." The defendant moved to exclude the answer of the witness on the same ground he objected to the question, and duly excepted to the court's overruling his motion.

Upon the introduction of all the evidence, the court, ex mero motu, instructed the jury in writing as follows:

"Gentlemen of the Jury: A grand jury of your county charges Sam Smith with the crime of perjury, as is set forth and stated in the indictment which has been read before you. In order to convict him the state must, by the evidence, establish all the material allegations of the indictment, and if you have any reasonable doubt as to any of those material allegations you must acquit the defendant. First. The evidence must satisfy you that the defendant, Sam Smith, was duly sworn to testify in a cause in this court entitled John Smith against the Richmond & Danville Railroad Company. Unless he was put under the sanction of an oath, and unless it was administered by the officer named in the indictment, and was in the cause named, you must acquit. But, if he was duly sworn to testify in the cause named, then inquire further whether or not he testified substantially as alleged in the indictment. Consider fully and carefully what the evidence now before us shows as to his testimony in the former case, and see whether or not the material allegations of the indictment as to his testimony are proven to have been sworn to by him on the trial. (Did he, in the other case, testify substantially as the grand jury say that he did? It is not essential that every part of his testimony, as narrated in the indictment, should be proven. For instance, the indictment says that defendant swore that John Smith went out of the back door of the car. If this is a mistake in the indictment, the mistake should not prevent conviction, if the material and substantial allegations are proven, as I will advise you hereafter.) But the state must show you by satisfactory proof that the defendant did give the evidence substantially as alleged in the indictment; otherwise, you cannot convict. (Then carefully consider and compare all the evidence, and say whether the defendant's evidence, complained of in the indictment, was false or true. If you find different witnesses contradicting each other, then, as reasonable, intelligent men, weigh the testimony of the state going to show the falsity of the defendant's statement against the evidence showing its truth, and try and determine which you must believe.) I cannot instruct you which witness, or which set of witnesses, to believe. The responsibility rests on you. I may assist you, however, by some general rules which our experience shows us to be valuable in such cases. For instance, take the state's witnesses, and their testimony. How was it given before you? What interest or prejudice are they shown to have in the case? What amount of intelligence, capacity, or memory do they show to have? Is their testimony reasonable or unreasonable? Was it given in with the apparent desire to tell the truth, or was their evidence given in with an apparent desire to convict the defendant? Was their sworn testimony, as they gave it, inconsistent, or was it contradictory? Compare the whole testimony of state's witnesses, and see if they corroborate each other or contradict each other. If you find that they corroborate each other literally and minutely, consider whether or not this minute corroboration may not show preconcert and arrangement with a purpose to convict. If, on the contrary, there is a substantial agreement and corroboration between

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