State v. Horine

• Decision Date: 05 November 1904
• Docket Number: 14,092
• Parties: THE STATE OF KANSAS v. GEORGE HORINE
• Court: Kansas Supreme Court

78 P. 411

70 Kan. 256

THE STATE OF KANSAS v. GEORGE HORINE

No. 14,092

Supreme Court of Kansas

November 5, 1904

Decided July, 1904.

Appeal from Barton district court; JERMAIN W. BRINCKERHOFF, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PERJURY--Allegation of Materiality of False Testimony. In a prosecution for perjury the materiality of the false testimony to the cause in which it was given may be pleaded in either of two ways: (1) Facts may be averred from the relation of which materiality is made to appear; (2) or a direct allegation may be made that the testimony was material.

2. CRIMINAL PROCEDURE--Arraignment after Jury have been Sworn. If in a felony case the defendant and his attorneys appear when the case is called for trial and participate in the selection of a jury, and after the jury have been sworn it be discovered that the defendant has not been arraigned, and that no plea has been entered, the court may then cause the defendant to be arraigned, require him to plead, and, upon his refusal to do so, enter a plea of not guilty for him, reswear the jury already chosen, and proceed with the trial of the case.

3. PERJURY--Proof of Official Character by Secondary Evidence. In a prosecution for perjury committed before a justice of the peace the justice may, for the purpose of proving his official character, give oral testimony as to the contents of lost documents relating to his title to office and as to his public discharge of the duties of the office under a claim of official right.

4. PERJURY--Proof of the Pendency of a Proceeding. In a prosecution for perjury the complaint filed and warrant served in the action in which the false testimony was given are competent and relevant to prove the institution and pendency of the proceeding to which they related.

5. BILL OF EXCEPTIONS--Word "Until" Construed. If by an order in a criminal case a defendant be required to enter into a recognizance for his appearance in court on June 25, 1904, and he be given until that time in which to present a bill of exceptions, the strict legal and lexigraphic meaning of the word "until" is controlled by the context, and the bill may be presented on the day named.

C. C. Coleman, attorney-general, and Jay F. Close, assistant attorney-general, for The State.

Russell & Russell, and D. A. Banta, for appellant.

BURCH J. All the Justices concurring.

OPINION

BURCH, J.:

Appellant was convicted of the crime of perjury, committed before a justice of the peace of the city of Great Bend, and appeals to this court. Error is assigned because a motion to quash the information and an objection to the introduction of any testimony under it were overruled, the ground of each being that the information did not show the materiality of the false testimony to the proceeding in which it was given. The recital of facts in the information, when fairly construed, does show materiality, although not in terms as direct and certain as might have been used, by setting out the testimony and stating that it was given in support of a defense of an alibi in a prosecution of a character described. But, in addition to this, the statement of the false testimony concludes with the following allegation: "All of which were material matters in said cause." The authorities recognize two methods of pleading the materiality of testimony alleged to be false, in prosecutions for perjury. Facts may be averred from the relation of which materiality is made to appear, or a direct allegation may be made that the testimony in question was material. (2 Bish. New Crim. Proc. § 921; 2 Whar. Crim. Law, § 1304; 16 Encyc. Pl. & Pr. 343.) If the latter method be adopted, the allegation of materiality may be regarded as a statement of ultimate fact and not as a mere conclusion of law. The information in this case is sufficient under either rule, and the motion and objection were properly overruled.

When the case was called for trial the defendant and his attorneys appeared and participated in the examination of the jury. After the jury had been sworn the defendant objected to any further proceedings in the case, for the reason that he had not been arraigned and had not pleaded to the information. The court then caused the information to be read to the defendant, requested him to plead, and, upon his refusal to do so, entered a plea of not guilty for him. The jury was then resworn and the trial proceeded with, over the objection and exception of the defendant. This action of the court is assigned as error.

In the case of The State v. Wilson, 42 Kan. 587, 597, 22 P. 622, the course adopted by the district court to cure the irregularity in failing to arraign the defendant and to require him to plead was expressly recommended.

In the case of Weaver v. State, 83 Ind. 289, the proper practice on such occasions was described, as follows:

"It is shown by the record that the court discovered, after the jury had been impaneled and sworn to try the case, but before any evidence had been given to the jury by either of the parties, that the appellant had not been arraigned on the indictment, and had not entered his plea thereto. What was the duty of the court upon making this discovery? It was hardly incumbent on the court, after such discovery, to proceed with the trial of the cause without an issue; for, if such trial had resulted in the conviction of the appellant his non-arraignment on the indictment and his failure to plead thereto would have constituted sufficient cause, not for his discharge from the indictment, but for a new trial. . . . It seems to us, therefore, that it was the plain duty of the court, when it was discovered that the appellant had not been arraigned and had not entered his plea, to cause him to be arraigned and to require him to enter his plea to the indictment before proceeding with the trial of the cause. Any other course than the one pursued by the court...