Walker v. State

• Court: Supreme Court of Alabama
• Citation: 96 Ala. 53,11 So. 401
• Parties: WALKER v. STATE.
• Decision Date: 23 June 1892

11 So. 401

96 Ala. 53

WALKER
v.
STATE.

Supreme Court of Alabama

June 23, 1892

Appeal from city court of Montgomery; THOMAS M. ARRINGTON, Judge.

Elisha Walker was convicted of perjury, and appeals. Reversed.

John Gindrat Winter, for appellant.

Tennant Lomax, for the State.

WALKER, J.

The indictment in this case substantially follows the form prescribed by the Code for an indictment for perjury committed in a civil case. Crim. Code 1886, form No. 67, p. 275, § 3908. The substance of the proceeding in which the alleged false oath was taken is as fully averred as in the Code form. The name of the officer before whom the oath was taken, that such officer had authority to administer the oath, and the falsity and materiality of the matter on which the perjury is assigned, are clearly and definitely alleged. Under the statute, these allegations are sufficient. Code, § 3908; Barnett v. State, 89 Ala. 165, 7 South. Rep. 414; Hicks v. State, 86 Ala. 30, 5 South. Rep. 425. The indictment describes the proceeding in which the alleged false oath was taken as "an application for a new trial in a civil action in the circuit court of Montgomery county in which one Jacob Griel was plaintiff, and said Elisha Walker defendant." The state offered in evidence an affidavit of the defendant which showed on its face that it was made in "the case of Jacob Griel et al. v. Elisha Walker." This evidence did not correspond with the allegation of the indictment as to the description of the proceeding in which the affidavit was made. A suit by Jacob Griel and others is not properly described as a suit by Jacob Griel alone. The proceeding alleged and the one proved are not identical. It cannot be affirmed that the case mentioned in the affidavit was the same as the one described in the indictment. The allegation of the indictment in this regard is material matter of description. It imports a suit in which there was but one plaintiff. The proof offered does not correspond with that description. The objection to this proof on the ground of variance should have been sustained. Brown v. State, 47 Ala. 47; McMurry v. State, 6 Ala. 324; State v. Harvell, 4 Jones, Law, 55; State v. Mayson, 3 Brev.284; [11 So. 402.] Clark, Crim. Laws, § 1243. The other evidence on the trial, as to the suit in which the affidavit for a new trial was made by the defendant, disclosed a case not answering to the description given in the indictment. In this regard there was a fatal...