State v. Varnado

• Decision Date: 11 July 1923
• Docket Number: 26016
• Citation: 154 La. 575,97 So. 865
• Court: Louisiana Supreme Court
• Parties: STATE v. VARNADO

97 So. 865

154 La. 575

STATE v. VARNADO

No. 26016

Supreme Court of Louisiana

July 11, 1923

Rehearing Denied October 2, 1923

Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Robert S. Ellis, Judge.

W. W Varnado was indicted for perjury. From a judgment quashing the indictment, the State appeals. Judgment annulled and set aside, and indictment reinstated.

A. V Coco, Atty. Gen., and Matthew J. Allen, Dist. Atty., of Amite (T. S. Walmsley, of New Orleans, of counsel), for the State.

Wm. H McClendon, of Amite, for appellee.

LAND J. ST. PAUL, J., dissents. BRUNOT, J., concurs herein.

OPINION

LAND, J.

The indictment for perjury in this case was quashed, and the state has appealed. The motion to quash was made on the ground that the indictment charges no offense known to the laws of the state of Louisiana.

The indictment returned against the defendant is in words as follows:

"The grand jurors of the state of Louisiana, duly impaneled and sworn, in and for the body of the parish of Tangipahoa, in the name and by the authority of the said state, upon their oath find and present: That one W. W. Varnado, late of the parish of Tangipahoa, on the 8th day of June, in the year of our Lord one thousand nine hundred and twenty-two, with force and arms, in the parish of Tangipahoa, aforesaid, and within the jurisdiction of the Twenty-Fifth judicial district court of Louisiana, for the parish of Tangipahoa, in a certain cause pending in the honorable Twenty-Fifth judicial district court of Louisiana, in and for the parish of Tangipahoa, the said court having jurisdiction of said cause, wherein the state of Louisiana was plaintiff and Joseph Rini et al. were defendants under an indictment for murder, and being No. 4925 on the docket of said court, and in which said cause a verdict had been rendered against said defendants as guilty as charged, and in which said defendants were seeking to have said verdict set aside and a new trial granted them on several grounds, one of which was that the said Richard Hope, one of the jurors on said cause, some ten or fifteen days before the last trial of Joseph Rini and the five other Italians, had expressed the opinion that the verdict would be a capital one, and that the men would be hanged, and that W. W. Varnado offered to bet said Ritchie Hope $ 25 or a $ 25 suit of clothes that the men would not be hanged, and the said Ritchie Hope accepted the bet, but the money was not put up, that the said Ritchie Hope was influenced by said bet in rendering said verdict against the said defendants, whereupon, on the trial of said motion, it became a material issue whether the said juror, Ritchie Hope, had entered into a bet with said W. W. Varnado that the verdict would be a capital one and the men would be hanged, did, in order to assist said defendants in obtaining a new trial in said cause, and furnish a basis for a motion for a new trial by said defendants presented in said cause on June the 9th day, 1922, willfully, knowingly, corruptly, and falsely swear before Ray D. Magruder, a notary public in and for the parish of Tangipahoa, state of Louisiana, duly commissioned and qualified and having authority to administer oath in said cause, in the following words: That some ten or fifteen days before the last trial of Joseph Rini and the five other Italians he, the said Ritchie Hope, had a conversation about the matter in Osyka, Miss., during which conversation affiant expressed belief that the approaching trial would not result in a capital verdict, but there would be a mistrial. That the said Ritchie Hope expressed the opinion that the verdict would be a capital one, and that the men would be hanged. Whereupon the affiant offered a bet of $ 25 or a $ 25 suit of clothes that the men would not be hanged, and the said Ritchie Hope accepted the bet, but the money was not put up, because the said Ritchie Hope did not have it with him, and the matter was dropped there, and has not been discussed again by affiant with the said Ritchie Hope -- when in truth and in fact said Ritchie Hope did not make a bet with said W. W. Varnado, or express any opinion about the case to said Varnado, all of which was well known to the said W. W. Varnado when he made said false and untrue affidavit."

Counsel for defendant contends that the indictment charges no offense, because it fails to show on its face that the oath was taken in a judicial proceeding, and that false swearing in a voluntary affidavit before a notary public before whom no cause is pending, and under no statutory procedure, is not perjury.

Section 857 of the Revised Statutes of 1870 provides that:

"Whoever shall willfully and corruptly commit perjury, or shall by any means procure any person to commit corrupt and willful perjury on his oath or affirmation in any suit, controversy, matter or cause depending in any of the courts of this state, or in any deposition or affidavit taken or made pursuant to its laws, upon conviction shall be imprisoned at hard labor," etc. (Italics ours.)

The indictment in this case clearly negatives the idea that the affidavit upon which the perjury is assigned is a mere voluntary affidavit by averring that said affidavit was made "in order to assist said defendants in obtaining a new trial in said cause and to furnish a basis for a motion for a new trial by said defendants presented in said cause on June 9, 1922."

In other words, the indictment charges that the affidavit of defendant was made with reference to a new trial in the Rini Case, and for the distinct purpose of enabling defendants, who had been found guilty as charged, to obtain a new trial.

It is not pretended in the indictment that the affidavit was made before the clerk of the court in the case of the State v. Joseph Rini et al., No. 4925 on the docket of the Twenty-Fifth judicial district court.

We are dealing here, not with perjury committed in a judicial proceeding, by taking a false and corrupt oath in that proceeding, but with perjury committed in an affidavit made before a notary public "pursuant to its laws" -- the laws of the state. Able counsel for defendant contends that the phrase "pursuant to its laws," as used in section 857 of the Revised Statutes, refers only to the statutes of the state, and, unless the affidavit is required to be made by virtue of some particular statute, it is not such an affidavit as is embraced within the section of the Revised Statutes denouncing the crime of perjury. We cannot concur in this view.

The decisions of this court constitute a very important part of "the laws" of this state, and, obviously, these decisions are not statutory laws.

In the case of the State v. Hornsby, 8 Rob. 583, 41 Am. Dec. 314, decided July, 1845, this court said: "In England, there is no doubt, in case of treason or felony, that a new trial cannot be granted when the proceedings have been regular; but if the conviction appears to be unjust to the judge, he may respite the execution, to enable the defendant to apply for a pardon, but this court has decided, in consonance, as it thinks, with the great current of American decisions, that all judges who are empowered to hear and determine indictments for crime, are invested with a discretionary power to grant new trials in capital cases as well as in those of misdemeanor, where upon a sufficient showing, touching the merits or irregularities in the proceedings, justice and humanity demand it. * * * We have, therefore, no doubt of our authority to grant, and of the defendant's right to demand, the new trial which was awarded him on the former appeal." (Italics ours.)

The Hornsby Case has been repeatedly affirmed, and the right of a defendant to apply for a new trial in all criminal cases has been uniformly recognized and enforced by the decisions of this court.

Yet the law of this state which secures to the defendant the right to demand a new trial in criminal cases is derived neither from the Constitution nor from the statutes of this state. It emanates solely from the decisions of this court, which constitute a part of "the laws" of this state upon this important subject. Applications for new trials on the ground of newly discovered evidence must always be received with caution. The inducements to false swearing on the part of the person convicted are obvious, and therefore the rule is well settled that the unsupported affidavit of the accused to the motion is insufficient, and must be corroborated by the affidavits of other persons than the accused, and, if possible, by those of the newly-discovered witnesses themselves. Marr's Crim. Juris. vol. 2, § 713, citing numerous cases: State v. Louvier, 129 La. 924, 57 So. 270; State v. Sims, 117 La. 1036, 42 So. 494; State v. Jones, 112 La. 980, 36 So. 825; State v. Callian, 109 La. 346, 33 So. 363, etc.

The method of hearing motions for new trial is left to the discretion of the judge. If the reading of the motion imparts to him sufficient knowledge to enable him to intelligently dispose of the matter, he cannot be arbitrarily required to delay his ruling for the purpose of further hearing or argument. The accused is not entitled to compulsory process to obtain witnesses in support of his motion for a new trial and the examination of witnesses to prove newly-discovered evidence is within the discretion of the trial judge. Counter affidavits and evidence are admissible, as when it is sought to prove that a juror, who had been examined on his voir dire, had prior to the trial expressed an opinion as to the guilt of the accused. State v. Gauthreaux, 38 La.Ann. 608; State v. Boasso, 38 La.Ann. 202; State v. Jones, 46 La.Ann. 545, 15 So. 402; ^[1] State v. Cafiero, 112 La. 453, 36 So. 492, citing 1 Bish. New...