State v. Burns

• Decision Date: 06 July 1922
• Docket Number: 10962.
• Citation: State v. Burns, 120 S.C. 523, 113 S.E. 351 (S.C. 1922)
• Parties: STATE v. BURNS.
• Court: South Carolina Supreme Court

113 S.E. 351

120 S.C. 523

STATE v. BURNS.

No. 10962.

Supreme Court of South Carolina

July 6, 1922

Appeal from Common Pleas Circuit Court of Jasper County; R. W Memminger, Judge.

Rufus Burns was convicted of perjury, and he appeals. Reversed and remanded for the entry of a judgment of acquittal.

H Klugh Purdy, of Ridgeland, for appellant.

Solicitor Randolph Murdaugh, of Hampton, for the State.

MARION J.

The defendant was indicted for and convicted of perjury, alleged to have been committed by falsely swearing at a preliminary hearing before a magistrate.

The defendant, being duly sworn, testified at the preliminary hearing in the case of State v. Richard Jones that he saw Richard Jones hit Sam Moultrie in the head with a black jack and kick him into Pocataligo river. On the trial of Richard Jones in the court of general sessions, the defendant testified that his previous testimony before the magistrate upon the preliminary hearing was false, and that Richard Jones did not hit Sam Moultrie in the head with a black jack and did not kick him into the Pocataligo river.

The trial judge overruled defendant's motion for a directed verdict made upon the ground that there was no evidence tending to establish the falsity of the defendant's statement at the preliminary hearing (constituting the subject-matter of the alleged perjury), except the contradictory statement of defendant upon the trial in general sessions. The sole question raised upon the trial is whether the defendant's subsequent contradictory testimony, accompanied by a definite admission that his testimony as previously given was false and untrue, was sufficient to support a conviction of perjury.

It is well settled that a conviction for perjury cannot be sustained merely on the contradictory sworn statements of the defendant. The state must prove which of the two statements is false, and must show the statement, which is made the basis of the perjury charge, to be false by other evidence than the contradictory statement. 21 R. C. L. 271; People v. McClintic, 193 Mich. 589, 160 N.W. 461, L. R. A 1917C, 52; State v. Binkley, 123 Ark. 240, 185 S.W. 279; Billingsley v. State, 49 Tex. Cr. R. 620, 95 S.W. 520, 13 Ann. Cas. 730; Schwartz v. Com., 27 Grat. (Va.) 1025, 21 Am. Dec. 365; Paytes v. State, 137 Tenn. 129, 191 S.W. 975, L. R. A. 1917C, 955. This general rule is recognized in the case of State v. Hayward, 1 Nott & McC. 546, wherein Mr. Justice Cheves says:

"It is the falsehood only of the oath (on which the perjury is assigned) which requires more proof."

It is forcibly argued on behalf of the state that the general rule should not apply in the case at bar for the reason that in defendant's second statement the intentional falsity of the first was expressly acknowledged or confessed. That contention is supported by the case of People v Burden (1850) 9 Barb. (N. Y.) 467. In note to People v. McClintic, 193 Mich. 589, 160 N.W. 461, L. R. A. 1917C, 58, the annotator refers to People v. Burden as ...