Thomas v. State

• Citation: 13 Ala.App. 421,69 So. 413
• Decision Date: 15 June 1915
• Docket Number: 356
• Parties: THOMAS v. STATE.
• Court: Alabama Court of Appeals

69 So. 413

13 Ala.App. 421

THOMAS v. STATE.

No. 356

Court of Appeals of Alabama

June 15, 1915

Appeal from City Court of Gadsden; John H. Disque, Judge.

Jeff Thomas was convicted of perjury, and he appeals. Reversed and remanded.

Omitting formal charging part, the indictment is as follows:

"(1) Jeff Thomas, on his examination as a witness, duly sworn to testify by the mayor of the city of Gadsden, who had authority to administer such oath, in a case against one Nat Passmore in the recorder's court of the city of Gadsden under a charge for violating the prohibition law, falsely swore that he did not buy some whisky from Nat Passmore, the matters so sworn to being material, and the testimony of the said Jeff Thomas being willfully and corruptly false.

"(2) Jeff Thomas, on his examination as a witness, duly sworn to testify on the trial of one Nat Passmore, in the municipal court of the city of Gadsden, under a charge of violating the prohibition law, which said court had authority to administer such oath, falsely swore that he did not buy some whisky from Nat Passmore, and that he was not in Nat Passmore's house, and that he did not go in the direction of Nat Passmore's house, the matter so sworn to being material, and the testimony of the said Jeff Thomas being willfully and corruptly false. ***

"(4) Jeff Thomas, on his examination as a witness, duy sworn to testify by the mayor of the city of Gadsden, who is the mayor ex officio recorder, and who had authority to administer such oath, said witness being examined in a case against one Nat Passmore in the recorder's court of the city of Gadsden under a charge of selling spirituous, vinous or malt liquors, falsely swore that he did not give Nat Passmore 25 cents for some liquor, and that he was not present when the said Nat Passmore sold the liquor, the matters so sworn to being material, and the testimony of the said Jeff Thomas being willfully and corruptly false."

Culli & Martin, of Gadsden, for appellant.

W.L Martin, Atty. Gen., and W.H. Mitchell, Asst. Atty. Gen., for the State.

THOMAS J.

The charge was perjury, and all counts of the indictment went out on demurrer, except counts 1, 2, and 4, which will be set out in the report of the case, and to which demurrers were overruled.

It is insisted--a point as raised by the demurrers--that said counts 1 and 2 were defective because, in alleging, as each did, that the trial in which defendant is alleged to have sworn falsely was a trial of one Passmore "under a charge of violating the prohibition law," each failed to show that the charge against said Passmore constituted an offense against the laws of Alabama, and consequently that for aught appearing to the contrary from the allegations of either count, the said trial was not a legal trial; was not a trial wherein the court in which the oath was administered to defendant had jurisdiction to try the person, said Passmore, in whose behalf defendant is alleged to have sworn falsely on said trial.

It is undoubtedly the law that, in the absence of a statute to the contrary, perjury cannot be assigned upon a false oath administered in a proceeding wholly void for want of jurisdiction in the court to entertain it; but it is also true that mere irregularities or informalities in such proceedings not of a character as would oust the jurisdiction of the court or prevent it from attaching in the first instance constitute no defense to a charge of perjury predicated upon a false oath taken in such proceeding. Collins v. State, 78 Ala. 433; Bradford v. State, 134 Ala. 143, 32 So. 742; Boynton v. State, 77 Ala. 29; 30 Cyc. 1411-1413. On the latter proposition we quote as follows from the last authority cited (30 Cyc. 1412), to wit:

"Where there are defects and irregularities in the proceeding which are not jurisdictional, as where they render it voidable, and not absolutely void, and such proceeding is amendable, or where the defect has been waived by the parties, perjury may be committed therein. Perjury may be committed at a trial, although the complaint, declaration, or indictment, or other pleading, was bad on demurrer or motion in arrest of judgment, or where there are such irregularities or defects as would require a reversal of the cause on appeal."

Even, therefore, if we should interpret, as it is insisted we should do, said counts as averring that said Passmore was tried on an affidavit and warrant charging only that he had "violated the prohibition law," we are not prepared to say that such affidavit and warrant was wholly void, and that it conferred no jurisdiction whatever on the officer to try said Passmore; because we are aware that the same particularity in describing the offense in an indictment charging such offense is not required in an affidavit or warrant charging such offense, but that the latter is sufficient if it designates the offense by name or by some phrase which, in common parlance, describes it. We are further aware, as has been held by ur Supreme Court, that neither an affidavit nor a warrant is necessary to the jurisdiction of a recorder to try a person for the violation of a municipal ordinance. Code, § 6703, and cases there cited; 1 Mayf.Dig. 27, §§ 3, 4; 5 Mayf.Dig. 20; 6 Mayf.Dig. 16; Brown v. State, 63 Ala. 97; Brazelton's Case, 66 Ala. 96; McGee v. State, 115 Ala. 135, 22 So. 113.

The terms "violating the prohibition law" have by common usage, both on the part of the laity and of the reviewing courts of the state by the employment of the expression in their opinions, acquired a definite signification in this state, and mean an offense against the laws prohibiting the manufacture, sale, or other disposition of spirituous, vinous, or malt liquors; and therefore it would seem that to charge in an affidavit and warrant that a named person had "violated the prohibition law" would be sufficient to give the officer jurisdiction to hear and determine the guilt of the person charged with respect to any offense falling within the designated class. Assuming, without deciding, that the affidavit and warrant would be demurrable as being too general and indefinite as to the charge, and as not being sufficiently specific, they would not be wholly void (Fuller Bill [General and Local Acts 1909, p. 90, § 29 1/2])--not any more so, it seems to us, than would an affidavit and warrant charging that a named person was guilty of "larceny," "burglary," "assault," or "assault and battery," etc., which have been held sufficient to confer jurisdiction. Authorities supra last cited.

However, these questions are not before us, since we do not interpret the counts now under consideration as averring, or as being intended to aver, by employing the words "violating the prohibition law," that said Passmore was tried on such a general charge--"violating the prohibition law"; but we understand these counts as meaning, by the employment of the words quoted, to allege or describe in a general way (for the purpose of meeting merely the requirements of section 7542 of the Code) "the substance of the proceedings" in which the false oath alleged against defendant was given, and to say that such proceedings were proceedings in the trial of said Passmore for an offense embraced within the general designation "violating the prohibition law," which terms we know from their acceptation in common use to mean a violation of the law prohibiting the manufacture, sale, etc., of spirituous, vinous, or malt liquors.

It is not necessary that the indictment here should allege the constituent elements of the offense for which Passmore was tried, but it is only necessary that such offense be described with sufficient definiteness as to apprise defendant as to what trial it was that during which as a witness he is alleged to have sworn falsely; in other words it is only necessary that it state the substance of those proceedings. Code, § 7542; Code, § 7161, form 81. We think this is sufficiently done by stating, as the counts here do, that such proceeding was a trial of one Nat Passmore before the recorder's court of the city of Gadsden under a charge of "violating the prohibition law." The Code form for charging perjury (form 81 of section 7161 of the Code) permits the description of the offense on the trial of which the perjury was committed to be alleged by the general term "murder," where the name of the person murdered is given; and our Supreme Court have approved in such indictments the use of the general term "burglary," where the name of the person whose property...