The State v. Sutton
| Decision Date | 09 March 1897 |
| Docket Number | 17,607 |
| Citation | 46 N.E. 468,147 Ind. 158 |
| Parties | The State v. Sutton |
| Court | Indiana Supreme Court |
From the Montgomery Circuit Court.
Reversed.
W. A Ketcham, Attorney-General, Merrill Moores, and Dumont Kennedy, for State.
Benj. Crane and A. B. Anderson, for appellee.
The appellee was indicted for perjury, and on his motion the indictment was quashed. It is claimed by the State that this ruling was erroneous.
It appears from the indictment that the appellee had been a witness in an action brought by one McBroom against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company for damages alleged to have been sustained by the killing of McBroom's colt. A material issue in said action was the value of the colt, and appellee gave evidence as to such value.
The evidence alleged to be false had reference to the competency of the appellee as an expert witness. He had testified "that he had been in the business of attending to and raising horses for fifteen years, and that the colt * * * was of the value of fifty dollars at the time it was killed." And in this connection the indictment alleges, "that the question as to whether said Sutton had ever worked at a livery stable kept and owned by one Pritchard, in Covington, Fountain county, Indiana, became and was one of the material points at issue in the trial of said cause, and that the question as to whether said Sutton had ever worked at a livery stable in said Covington, Fountain county, Indiana, became and was one of the material points at issue in the trial of said cause."
The charge of perjury is then made against appellee in these words, that: "He feloniously, willfully, falsely, and corruptly testified, deposed and swore that he had worked three years at a livery stable kept and owned by one Pritchard, in Covington, Fountain county, Indiana, whereas in truth and in fact, as said Sutton then and there well knew, he had never worked for one Pritchard in said Covington, nor in his livery stable, nor was there such a person as Pritchard who kept or owned a livery stable in said Covington at the time said Sutton swore and testified, as aforesaid, that he worked at said livery stable."
The appellee has filed no brief; but we learn from the brief of the prosecuting attorney, that,
It is provided, in section 1816, Burns' R. S. 1894 (1747, R. S. 1881), that, "In an indictment or information for perjury or subornation of perjury, it shall only be necessary to set forth the substance of the controversy or the matter in respect to which the crime was committed, and in what court or before whom the oath alleged to be false was taken, and that the court or person before whom it was taken had authority to administer it, with the proper averments to falsify the matter whereof the perjury may be assigned, without setting forth any part of any record or proceeding or the commission or authority of the court or other authority before which the perjury was committed."
And, in section 2093, Burns' R. S. 1894 (2006, R. S. 1881), is found this provision: "Whoever, having taken a lawful oath or affirmation in any matter in which, by law, an oath or affirmation may be required, shall, upon such oath or affirmation, swear or affirm willfully, corruptly, and falsely touching a matter material to the point in question, shall be deemed guilty of perjury."
Under the foregoing provisions of the statute, we are of opinion that the indictment was good. It was charged that "the question as to whether said Sutton had ever worked at a livery stable kept and owned by one Pritchard, in Covington, Fountain county, Indiana, became and was one of the material points at issue in the trial of said cause." And it was touching this question that the appellee was alleged to have testified falsely. It may be, as the appellee is said to have claimed, that the special averments of the indictment do not show the materiality of the false testimony; but the general allegation is made that the question as to which that testimony was given "was one of the material points at issue in the trial." That must be sufficient; it is, in substance, the language of the statute.
An indictment or affidavit and information for perjury must, of course, contain either the general allegation that the testimony claimed to have been false was given in relation to "a matter material to the point in question," or else the particular facts showing such materiality must be stated. Either will be sufficient, but one or the other is necessary.
In State v. Cunningham, 116 Ind. 209, 18 N.E. 613, the court, citing 2 Bish. Crim. Proced., section 921, and Gillett, Crim. Law, section 692, said that the materiality of the matters testified to "may be shown either by a general averment of materiality, or by setting out the facts testified to, from which their materiality is, as a matter of law, made apparent, the former being the more usual and practical method."
So it was said by Ray, J., in State v. Flagg, 25 Ind. 243, citing State v. Hall, 7 Blackf 25, and State v. Johnson, 7 Blackf. 49, that "the materiality of the allegations must be shown either upon the face of the indictment, or expressly averred." And in State v. Flagg, 27 Ind. 24, the same judge writing the opinion, the court said: "The averment of materiality not being sufficient, the indictment cannot be sustained, unless the facts stated in the affidavit, themselves show their materiality to the question." It was there held that the indictment was good; for although the general allegation as to materiality was found to be insufficient, yet it appeared that the facts stated disclosed the materiality of the testimony. See, also, State v. Anderson, 103 Ind. 170, 2 N.E. 332, where the subject is fully discussed by Zollars, J., and where there being no general allegation as to materiality, it was held that the indictment was bad, for that reason, and because the facts stated did not sufficiently show the materiality of the false...
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