Tindall v. State

• Decision Date: 17 May 1930
• Citation: 128 So. 494,99 Fla. 1132
• Parties: TINDALL v. STATE.
• Court: Florida Supreme Court

128 So. 494

99 Fla. 1132

TINDALL v. STATE.

Florida Supreme Court

May 17, 1930

Commissioners' Decision.

Error to Circuit Court, Hendry County; Paul C. Albritton, Judge.

Will Tindall was convicted of perjury, and he brings error.

Affirmed.

COUNSEL

R. Percy Jones, for plaintiff in error.

Fred H Davis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

ANDREWS C.

Plaintiff in error, hereinafter referred to as the defendant, was indicted in the Circuit Court of Hendry County for perjury and a motion to quash the indictment was filed and denied. Upon trial, defendant was convicted, and, a motion for new trial being denied, he was sentenced to five years in the state prison. The case is here for review upon writ of error.

The principal questions presented for review are: (1) The court erred in overruling the motion to quash the indictment; (2) the court erred in denying the motion for new trial, and (3) overruling the motion in arrest of judgment.

The particular matters first argued by defendant under the motion to quash are that the indictment fails to allege: (1) That the grand jury, before whom defendant is alleged to have sworn falsely, was investigating crime, or (2) that he swore falsely in a judicial proceeding, or (3) that the false testimony was upon a material matter involved in the investigation by the grand jury of the commission of a crime.

As to the first objection to the indictment, it is apparent that the wording of the instrument as a whole sufficiently shows an investigation of crime by the grand jury not only by necessary implication from the document itself but by its wording in terms in designating the crime.

The second contention is that the indictment does not sufficiently allege that defendant swore falsely in a judicial proceeding, coming within the provision of section 7477, Compiled General Laws of Florida, 1927. In the case of Craft v. State, 42 Fla. 567, 29 So. 418, it was held that under our judicial system a grand jury is an appendage or adjunct to the circuit court, and that an investigation by a grand jury of a crime that is within its jurisdiction to investigate and to indict for, is a judicial proceeding in a court of justice, and perjury committed before a grand jury in such an investigation falls within that class of crime defined by section 2561, Revised Statutes, 1892 (now section 7477, Compiled General Laws of Florida, 1927). There is no question raised here that the grand jury did not have jurisdiction to investigate and indict for the offense under consideration by the jury. False testimony before a grand jury, in order to be perjury, must necessarily be as to a matter which the grand jury had power to investigate, and if it had such power, then the question of materiality is governed by the same rules as govern testimony in the trial of an issue in court. 21 R. C. L. 263, § 11; 48 C.J. 850, § 67; State v. Ackerman, 214 Mo. 325, 113 S.W. 1087, 22 L. R. A. (N. S.) 1192; 2 Bishop's New Criminal Procedure (2d Ed.) § 864 (2). The last authority also holds that if a witness swears falsely before a grand jury, it may, of its own motion and knowledge, indict such witness for perjury.

The third matter argued questions the sufficiency of the indictment to allege that the false testimony was upon a material matter involved in the investigation of a commission of a crime. The indictment not only alleges that defendant swore falsely in regard to a material matter, concerning which his oath was authorized and required and concerning a matter which they had authority and jurisdiction to hear and investigate, but it sets forth the material matter and shows in terms their full power and authority and that the matter involved was a crime for which they had power to indict.

In the case of Herndon v. State, 72 Fla. 108, 72 So. 833, it was held that to constitute perjury for false swearing in the trial of a cause the fact sworn to need not be material to the main issue, but if it be conducive to the point in issue or a guide to the court or jury, even though circumstantial, it is perjury. See, also, Brown v. State, 47 Fla. 16, 36 So. 705; Gibson v. State, 47 Fla. 34, 36 So. 706.

In the case of Brown v. State, supra, it was held:

'An information or indictment for perjury should either affirmatively allege, or show from other averments, that the false testimony was material to the issue upon the trial of which it was given. The indictment, at the pleader's election, may either aver directly that the testimony falsely deposed was material to some issue on trial, or else allege facts from which its materiality will, in law, appear.'

In an early decision of this court, it was held that (Cherry v. State, 6 Fla. 679):

'The degree of strictness spoken of in the books as applicable to criminal jurisprudence, is such as is conformable to rational principles, and not such as is calculated to defeat the ends of the law.'

The above decision (in 1856) was made prior to the enactment of section 8369, Compiled General Laws of Florida, 1927, originally chapter 1107, Acts of 1861, providing that no indictment shall be quashed on account of any defect unless it is so vague, indistinct, and indefinite as to mislead or embarrass the accused in the preparation of his defense, or expose him thereafter to substantial danger of another prosecution for the same offense. As applied to indictments for perjury, see Bennett v. State, 65 Fla. 84, 61 So. 127; Jarvis v. State, 73 Fla. 635, 74 So. 794; Edwards v. State, 62 Fla. 40, 56 So. 401; Gray v. State, 58 Fla. 54, 50 So. 538; Mills v. State, 58 Fla. 74, 51 So. 278; Johnson v. State, 51 Fla. 44, 40 So. 678.

It is clearly shown by the indictment itself that the grand jury was investigating the illicit sale of intoxicating liquors by Mrs. Bertie Wiggins, for which offense it had authority to indict.

The next assignment of error is based upon the overruling of the motion for new trial, the first three grounds of which allege that the verdict is contrary to the law and the evidence.

Under this assignment it is contended by defendant that the testimony given by the state's main witness, T. J. Caruthers, was not corroborated by the evidence of any other witness. The rule obtaining in this state is that:

'To convict of the crime of perjury the offense must be proved by the oaths of two witnesses or by the oath of one witness and other independent and corroborating circumstances which are deemed of equal weight with another witness. Such is the rule now well established on authority. And the element of the offense which must be so proved is the falsity of the material matter sworn to.' Ward v. State, 83 Fla. 311, 91 So. 189; Ellis v. State, 83 Fla. 322, 91 So. 192; Yarbrough v. State, 79 Fla. 256, 83 So. 873.

An important element of the offense which must be proved by the oaths of two witnesses, or by the oath of one witness, and by other independent and corroborating circumstances, which are deemed of equal weight with another witness, 'is the falsity of the matter sworn to.' The transcript shows that the testimony of T. J. Caruthers was direct as seeing the defendant receive and pay Mrs. Bertie Wiggins for the first purchase of liquor, and that it was on January 13, 1929, at La Belle, in Hendry county. Corroborative testimony on the two false statements made by Tindall as alleged in the indictment--i. e., (1) that the defendant, Tindall, did not purchase any liquor from said Bertie Wiggins, and (2) that he had not been in Hendry county for two years--was given by Mrs. Caruthers and Clifford Hill. Mrs. Caruthers testified that upon the return of her husband and the defendant from Mrs. Wiggins' residence, which was about a half mile away, she saw and drank part of the liquor, and that the empty bottle of the first pint was left on her table. It was further corroborated by the apparently reluctant witness, Clifford Hill, who accompanied defendant and Caruthers an hour or so later to a place near the Wiggins house. He testified that defendant got out of the car and went to the Wiggins house and brought back another pint, while he and Caruthers waited for him about fifty yards away. This is further corroborated by other evidence that this last liquor was drunk on the way to Ft. Myers, soon thereafter. The witnesses, Clifford Hill, T. J. Caruthers, and Mrs. Caruthers, testified as the false statement as to Tindall's presence in Hendry county on January 13, 1929, when the liquor was purchased. These material matters as to the actual purchase and as to defendant being in Hendry county were denied by defendant before the grand jury, as shown by the evidence of the foreman and one other member of the grand jury, both of whom testified that defendant stated to the grand jury on February 26, 1929, that he had never bought any liquor from Mrs. Bertie Wiggins, and that he hadn't even been in Hendry county for two years.

The fourth assignment of error is based upon the trial court's denial of the motion of defendant to require the state's attorney to make the opening argument and apprise defendant of the matters expected to be relied upon for a conviction. The trial court stated that he knew of no rule whereby he could prevent state's attorney waiving opening argument, and told him to 'go ahead.'

Perjury is perhaps the most serious and far-reaching for felony known to jurisprudence; far-reaching felony known to jurisprudence in the status of the lower animals;...