Smith v. State
| Decision Date | 16 January 1957 |
| Parties | Mathew SMITH, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Sam E. Murrell, Sam E. Murrell, Jr., and Robert G. Murrell, Orlando, for appellant.
Richard W. Ervin, Atty. Gen., Jos. P. Manners, and Richard J. Brooks, Asst. Attys. Gen., for appellee.
This is the second appearance of this case before this Court. See, Starr v. Smith, Fla., 77 So.2d 834. In the earlier case the Appeal was by the State from a Writ of Habeas Corpus wherein the Circuit Court held that the information failed to state an offense under the laws of this State. This Court did not consider the facts but reversed the order because the defendant was not in custody at the time of the issuance of the Writ and therefore was not entitled to apply for the same.
This is an Appeal from a conviction and sentence for perjury. The facts are not particularly in conflict.
Appellant was arrested in connection with his ownership of a Federal Gambling Tax Stamp; he sued out a Writ of Habeas Corpus in the Circuit Court, thereafter the County Solicitor filed an Information consisting of one count charging the offense of perjury, alleging that appellant during earlier habeas corpus proceedings falsely swore that he had never been arrested for anything since 1949 in connection with bolita. Defendant filed his motion to quash this information which the trial judge overruled and denied. The defendant entered his plea of Not Guilty, the case went to trial before a jury, appellant was convicted of perjury and sentenced to be confined at hard labor for a period of five years and to pay the costs thereof, and in default of paying the costs, to serve an additional term of 30 days.
The principal question raised on appeal is, 'Was the alleged false swearing upon a material issue, as is required to constitute perjury?'
This Court has repeatedly stated that false swearing must have been to a matter material to the issue before the Court. Miller v. State, 15 Fla. 577; Keir v. State, 152 Fla. 359, 11 So.2d 886; Rader v. State, Fla., 52 So.2d 105.
The Petition for Writ of Habeas Corpus was to test the legality of his detention by the Sheriff and to reduce the amount set as bail. Appellant was called as a witness as to questions of his limited financial ability. On cross-examination the County Solicitor asked him these questions and he gave these answers:----
'Q. What? Have you ever been arrested for anything? A. Yes, sir.
'Q. What? A. Skinning.
'Q. Is that all? A. No, sir.
'Q. What else? A. Possession of bolita.
'Q. When was that, Mathew? A. '49.
Testimony is not material so as to form sufficient basis for...
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