Stefani v. State
| Decision Date | 29 April 1890 |
| Docket Number | 15,483 |
| Citation | 24 N.E. 254,124 Ind. 3 |
| Parties | Stefani v. The State |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled May 16, 1890.
From the Marion Criminal Court.
Judgment affirmed, with costs.
W. B Walls and G. L. Walls, for appellant.
L. T Michener, Attorney General, and J. H. Gillett, for the State.
An affidavit and information were filed against the appellant charging him with the crime of perjury. He moved the court to quash the affidavit and information, which motion was overruled by the court, and he excepted; thereupon he pleaded not guilty to the charge, and the issue joined was submitted to a jury for trial, who afterwards returned a verdict that the appellant was guilty as charged, and that he be imprisoned in the State's prison for the period of four years and pay a fine of $ 50. He filed a motion for a new trial, which was overruled by the court, and he excepted, and finally he moved in arrest of judgment, and said motion being overruled he reserved an exception, and thereupon the court gave judgment according to the verdict of the jury.
We have carefully examined the affidavit and information, and find no infirmity in either; the information follows the affidavit in its statement of facts.
The substance of the affidavit is, that, on the 19th day of February, 1890, at the county of Marion and State of Indiana, before Thomas L. Sullivan, mayor of the city of Indianapolis, sitting as a court, an affidavit was filed and presented by James R. Shea against the appellant, charging him with knowingly permitting a certain room to be used and occupied for gaming, and that such proceedings were had that the appellant was brought before said court and duly arraigned upon said affidavit, and pleaded not guilty thereto; and thereafter, and on the same day, before said mayor, sitting as aforesaid, he having full and competent authority in that behalf, a trial was had and held for the purpose of determining the guilt or innocence of the appellant; that upon said trial the appellant offered himself as a witness in his own behalf, and was then and there duly sworn by said mayor, he then and there having competent authority to administer said oath; that upon the trial of said issue and point in question, it became material whether certain persons named were in a certain room known as 306 East Washington street in said city of Indianapolis, on Sunday, the 16th day of February, 1890, and whether the said persons were playing cards for money in said room on said day, the said room being then and there occupied by the appellant as a saloon; and that the appellant then and there, on the trial of said issue, unlawfully, feloniously, wilfully, corruptly and falsely, before the said mayor, in said matter, did depose and swear in substance and in fact, and to the effect that the said persons were not in said room on said 16th day of February, 1890, and did not play cards for money in said room on said day. Then follows a proper negation of the truthfulness of the appellant's said testimony, together with the averment that the appellant knew when he gave the testimony that the same was false.
Three objections are taken to the affidavit:
1. The testimony upon which perjury is assigned was not material to the point in question.
2. The materiality of the false testimony is not sufficiently charged.
3. The court in which the perjury is alleged to have been committed is not sufficiently described.
None of these objections are tenable.
The prosecution in the mayor's court wherein the false testimony is alleged to have been given rested upon section 2079, R. S. 1881, and reads thus: "Whoever keeps a building, room, arbor, garden, booth, shed, tenement or canal-boat, wharf-boat, or other water-craft, to be used or occupied for gaming; or who knowingly permits the same to be used or occupied for gaming, * * * shall be fined not more than five hundred dollars nor less than ten dollars."
We can not imagine more pertinent and material testimony for the State in prosecutions under the section quoted than that which relates to specific acts of gaming in the building or room named in the indictment or information, and evidence given by the accused to meet and overthrow testimony of that character introduced by the State is equally pertinent and material.
The averments in the affidavit are clearly within the provisions of section 1747; and that the testimony of the appellant upon which perjury is assigned was material and false abundantly appears. The court in which the false testimony is charged to have been given is clearly and definitely stated. The affidavit discloses the facts that Thomas L. Sullivan was the mayor of the city of Indianapolis, and that while sitting as a...
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