State v. Kellis
| Citation | 141 N.E. 337,193 Ind. 619 |
| Decision Date | 16 November 1923 |
| Docket Number | 24,296 |
| Parties | State of Indiana v. Kellis |
| Court | Supreme Court of Indiana |
From the Clark Circuit Court, James W. Fortune, Judge.
Austin Kellis was charged by indictment with perjury. From a judgment sustaining his motion to quash the indictment, the State appealed.
Reversed with instructions.
U. S Lesh, Attorney-General, Mrs. Edward Franklin White, Deputy Attorney-General, and James J. Bottorff, for the State.
Charles A. Hunt and L. A. Douglass, for appellee.
An indictment was returned in the Clark Circuit Court, charging appellee with the crime of perjury, under § 2375 Burns 1914, (Acts 1905 p. 584). Appellee's motion to quash on the ground that the indictment did not state a public offense was sustained, and the state appeals.
The indictment, in substance, states that a regular organized grand jury in the Clark Circuit Court, while acting in the discharge of its duty of detecting crime within the jurisdiction of that court, and "touching a matter material to the point in question," interrogated appellee, who previously had been then and there sworn as a witness before Homer M. Frank, foreman of the grand jury pertaining to the killing of one William Sears, which occurred at a road house in Clark county, Indiana, on October 1, 1922. The question propounded to the witness called for the name or names of the person or persons who had fired pistol shots at the road house where and at or about the time William Sears was killed. The indictment then charges that appellee "did then and there unlawfully, wilfully corruptly, and feloniously swear, that he, the said Austin Kellis, was not at the said road house of the said Al Bunch at the time the said William Sears was so killed; that he did not hear the pistol shots, being the pistol shots inquired about, and that he had left said road house and had gone to the city of New Albany before any trouble had occurred, whereas, in truth and in fact he, the said Austin Kellis, as he then well knew, was at the road house of the said Al Bunch as aforesaid, and that he did not go to the city of New Albany until after the killing of the said William Sears, and that he knew the name or names of the persons who had fired the pistol shots inquired about."
Appellee takes the position that the indictment in this case is based upon false testimony in answer to a question by the grand jury which was not answered, and that perjury is not committed by silence. His insistence would confine the state to answers responsive to direct questions on the theory that thereby only will the answers be material to the point in question. Perjury, as defined by our statute, is, upon oath or affirmation, to swear or affirm wilfully, corruptly and falsely touching a matter material to the point in question. The testimony must be known to the witness to be false, and must be intended to mislead the court or jury. 2 Wharton, Criminal Law (9th ed.) § 1244. Furthermore, the testimony must not only be wilfully false, but it must touch "a matter material to the point in question." So, we may say, if the testimony alleged to be false is of no importance and immaterial, however false, it cannot be made the basis for a charge of perjury, for the reason that it would not touch the point in question. Hence, it is necessary for the state to allege and prove, in cases of the class under consideration, that the testimony or the matter sworn to was material. The fact of materiality must be shown in the pleading and this may be done by either a general allegation of materiality, or it must appear from the facts alleged. State v. Turley (1899), 153 Ind. 345, 55 N.E. 30; State v. Sutton (1897), 147 Ind. 158, 46 N.E. 468.
As a preliminary matter, it may be well to ask: What is meant by "the point in question?" These words form a part of our statutory definition of the crime of perjury. As we understand appellee, he would limit these words to the point indicated by the question alone as put to the witness. We are not convinced that they should be so limited. Hence, we hold that in a grand jury investigation they mean the subject-matter of the inquiry.
It appears from the indictment before us that the point or subject-matter under investigation by the grand jury, and known to appellee when testifying before that body, was under what circumstances, and who, if any one, killed William Sears. The question shown in the pleading put to the witness was a pertinent one touching a material matter then under investigation, but it was not answered directly. If we were to accept appellee's contention and stop at this point, unquestionably the indictment would be bad. For aught here shown, the question propounded...
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