State v. Byrd

• Decision Date: 01 February 1888
• Citation: State v. Byrd, 28 S.C. 18, 4 S.E. 793 (S.C. 1888)
• Parties: STATE v. BYRD.
• Court: South Carolina Supreme Court

4 S.E. 793

28 S.C. 18

STATE v. BYRD.

Supreme Court of South Carolina

February 1, 1888

Appeal from general sessions circuit court of Pickens county ALDRICH, Judge.

Indictment for perjury. Albert Byrd was convicted on the trial of an indictment for perjury, and appeals.

James P. Carey, for appellant.

James L. Orr, for the State.

McGOWAN J.

The defendant was indicted for perjury. The indictment contained two counts. The first charged that the said Albert Byrd being sworn as aforesaid, (before JOHN R. GOSSETT, Esq., trial justice,) not having the fear of God, etc., "then and there upon his oath aforesaid, before the said John R Gossett, Esq., upon a certain trial entitled ' The State against Albert Byrd. Offense, refusal to work the roads,' falsely, corruptly, knowingly, willfully, and maliciously did say, depose, swear, and give information (amongst other things) in substance and to the effect following, that is to say, this informant (meaning the said Albert Byrd) upon his oath sayeth: 'I did not go in opposite direction from Greenville on the morning of the fourteenth of August. I started to Greenville on the morning of 14th, between seven and eight o'clock,' whereas in truth and in fact the said Albert Byrd did, on the morning of the fourteenth day of August, in the year of our Lord one thousand eight hundred and eighty-five, go in an opposite direction from Greenville, and did not start to Greenville on the said morning, etc., contrary to the form of the statute in such case made, etc." The second count charged: "That upon the hearing of the trial before the said John R. Gossett, Esq., as aforesaid, it became and was a material question whether the said Albert Byrd was exempt from road duty by reason of his absence to Greenville on the morning of fourteenth of August, eighteen hundred and eighty-five, and the continuation of such absence during the remainder of said day, the jurors aforesaid do say that the said Albert Byrd, on the nineteenth day, etc., before the said John R. Gossett, Esq., by his own act and consent, and of his own wicked and corrupt mind, in manner and form aforesaid falsely, wickedly, willfully, and corruptly did commit willful and corrupt perjury, to the evil and pernicious example of all others in like case offending, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state aforesaid," etc. The judge held that the defendant was indicted under our acts of assembly, and charged the jury that the only inquiry for them was whether the defendant knowingly and willfully swore falsely before an officer required by law to administer oaths. Did he swear falsely, in the way in which the trial justice says he did, and the way in which the indictment charges? If he did, the case is made out; if he did not, the case is not made out, and he is not guilty, etc. The jury found the defendant "guilty," and he appeals to this court upon the following grounds: " First. Because the circuit judge erred in refusing to charge 'that if the jury believe from the testimony that the defendant in good faith attended the United States court on August 14, 1885, to answer there for a criminal charge, the particular direction which he started, or the particular hour, is immaterial and they should acquit him.' Second. Because the judge erred in instructing the jury that the defendant was not indicted under the common law, but under our acts of assembly. Third. Because the judge erred in instructing the jury that the only inquiry for them was: 'Has the defendant knowingly and willfully sworn falsely before an officer required by law to administer oaths;' whereas he should have qualified said instruction by stating that the facts sworn to must be material to the issue pending before the said officer. Fourth. Because his honor erred in overruling the defendant's motion in arrest of judgment on the following grounds: (1) That the indictment is fatally defective in that it does not allege that the proceeding before the trial justice was commenced on information under oath; (2) that the indictment does not state an offense under the law."

It appears from the request to charge and the exceptions, as well as from the grounds taken in arrest of judgment, that the real complaint of the defendant is that the conviction was error, for the reason that his sworn statement in the proceedings against him for not working on the road, as to his starting that morning in the direction of Greenville, and at an early hour, was immaterial to the issue then being tried as to whether he was exempt that day from working the roads; that even if the statement was, as alleged, false, he might still have gone to Greenville, and therefore the testimony although false was not...