Ward v. State
| Decision Date | 23 February 1922 |
| Parties | WARD v. STATE. |
| Court | Florida Supreme Court |
Rehearing Denied March 23, 1922.
Error to Circuit Court, Santa Rosa County; A. G. Campbell, Judge.
George Ward was Convicted of perjury, and he brings error.
Affirmed.
On Rehearing.
Syllabus by the Court
Ruling on motion for continuance not reversed except for abuse of discretion. Trial courts exercise a broad discretion in the consideration of applications for continuance of cases before them, and an order granting or denying a continuance will not be reversed by an appellate court unless it is clearly shown that there has been a palpable abuse of discretion to the manifest injury of the party against whom it has been exercised.
Motion to quash indictment should be evidenced by the record, and not by bill of exceptions. A motion to quash an indictment should be evidenced to the appellate court by the record proper, and not by the bill of exceptions. When this requirement is not observed, and the motion to quash is not so evidenced to the appellate court, it will not be considered.
Policy of waiting to attack indictment or information by motion in arrest is not favored, and attack should be by motion to quash or demurrer. The policy of waiting until after the trial of a case to attack an indictment or information because of insufficiency in its allegations by a motion in arrest of judgment is not favored. Defects in indictments and informations should be called to the attention of the trial court by a motion to quash or demurrer, so that such defects if any, may be corrected by the filing of another indictment or information before the trial of the case is entered upon.
An indictment not so vague as to mislead accused in preparing defense, or expose him to new prosecution, is sufficient. An indictment for perjury is sufficient which is not so vague indistinct, or indefinite as to mislead the accused, or embarrass him in the preparation of his defense, or expose him to substantial danger of a new prosecution for the same offense.
Technical error without injury will not warrant reversal. Technical error committed by a trial court in the reception or rejection of evidence does not necessarily constitute harmful error. It is injury resulting from error that warrants an appellate court in reversing a judgment of the trial court.
Conviction will not be reversed for technical errors. A judgment of conviction will not be reversed even if technical errors were committed in rulings on the admissibility of evidence or in charges given or refused where the evidence of guilt is ample, and no fundamental rights of the defendant are infringed.
Must be proved by oaths of at least two witnesses or other independent corroborating circumstances. 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.
Evidence held to sustain conviction. Evidence examined, and found sufficient to support the verdict of conviction.
Motion to quash indictment made after plea in bar and beginning of trial comes too late. A motion to quash an indictment offered or made after a plea in bar had been entered, and while the case was on trial on that issue, came too late, and the court did not err in then refusing to consider it.
L. V. Trueman, of Milton, for plaintiff in error.
Rivers Buford, Atty. Gen., and Marvin C. McIntosh, Asst. Atty. Gen., for the State.
The writ of error in this case was returnable September 2, A. D. 1921, but the transcript of the record was not filed until October 8, 1921, and by stipulation of counsel the times for filing the briefs for plaintiff in error and the state were postponed to January 5 and February 9, 1922, respectively, so that the case is just now ready for consideration by this court.
The crime for the commission of which defendant, plaintiff in error here, was convicted is perjury. The offense charged and the assignment of perjury contained in the indictment are that, in the trial of a case in the county judge's court in which the accused was charged with the crime of larceny----
'it then and there became and was a material matter, of which the said court then and there had jurisdiction, for the said court and jury to know and be informed whether I. D. Bodie, a witness for the state, in due form of law sworn as a witness in behalf of the state by E. M. Magaha, judge of said court, had attempted to procure George Ward, at Chumuckla, Fla., about 11 o'clock a. m. on Saturday, May 14th, to swear falsely in behalf of the state in the trial of said Herman Watson aforesaid, by offering to pay him, the said George Ward, $10, to swear in the trial of the case of the State of Florida v. Herman Watson, charged with larceny of a plow, that Herman Watson had told him, the said George Ward, that he, Herman Watson, had stolen the plow, the subject of larceny in question, and he, the said George Ward, in the trial of said cause aforesaid, upon his oath as a witness aforesaid, did unlawfully, willfully, wickedly, corruptly, designedly, and falsely swear and depose in substance that I. D. Bodie did, on Saturday, May 14, A. D. 1921, about 11 o'clock a. m., at Chumuckla, Fla., in the presence of Tom Ellis, talk with the said George Ward and one Tom Ellis, and that he, I. D. Bodie, offered to pay him, the said George Ward, the sum of $10 if he would swear in behalf of the state of Florida, in the trial of the aforesaid case between the state of Florida and Herman Watson, 'that Herman Watson had told him, the said George Ward, that he, Herman Watson, stole the plow of I. D. Bodie, in question'; that the said testimony of the said George Ward so made and given under his oath, to the effect and in substance that he, the said George Ward, had had a conversation with I. D. Bodie in the presence of Tom Ellis at Chumuckla, Fla., at about 11 o'clock a. m. on Saturday, May 14, A. D. 1921, and that the said I. D. Bodie had offered the said George Ward $10 to swear in the approaching trial of the case of the State of Florida v. Herman Watson that Herman Watson had told him, the said George Ward, that he, the said Herman Watson, had stolen the plow in question belonging to I. D. Bodie, was then and there knowingly, designedly, willfully, wickedly, and corruptly perjured, false and untrue, and the said George Ward then and there well knew the said testimony in the particulars aforesaid was false, perjured and untrue, but, notwithstanding, he, the said George Ward, then and there, in the said court in said cause, then and there upon his oath aforesaid, testified and swore in substance as aforesaid, for the purpose of deceiving the said court and jury, and to cause the said court and jury to acquit Herman Watson of the charge of larceny; that whereas, in truth and in fact the truth of said matter then and there so sworn and testified to by the said George Ward was that he, the said George Ward, was not at Chumuckla, Fla., at the time and place he so swore, and did not have a conversation with the said I. D. Bodie as sworn aforesaid, and the said I. D. Bodie was not at Chumuckla, Fla., as sworn by the said George Ward, and did not have any conversation with him, the said George Ward, but the said George Ward was at some other place at the said time to the grand jurors unknown, and these facts the said George Ward then and there well knew to be true.'
This writ of error brings up for review the judgment imposing sentence on defendant upon his conviction on this charge.
When the case was called for trial defendant, through his counsel presented a motion for a continuance of the case. The grounds of the motion are that the case in which the alleged perjury was committed by defendant is still undetermined, and that, in the event the prosecution against him proceeds to trial in which he is adjudged guilty of perjury, as charged, he will not longer be competent, but will be disqualified as a witness in such case. His solicitude for the party in whose behalf he testifies may be commendable, but the trial court cannot be held to have committed reversible error for not entertaining a like concern. There is no law requiring the court to take any action having for its object the preservation of a defendant's status as a qualified witness in some other pending judicial proceeding, the nonobservance of which may be said to infringe upon or violate some right possessed by defendant. The trial court may very well have thought that, if the action suggested by the motion for a continuance were demanded in the administration of justice, the same result could be reached by postponing imposition of sentence, in the event defendant was convicted, until after he had given his testimony in the other case, and may have been impelled by some such consideration in overruling the motion; that he did not do so would only indicate that he did not share defendant's view. Whatever may have been the consideration moving the court, it cannot be said that the ruling denying the motion was such an abuse of his discretion as to amount to harmful error. This court has frequently said, in effect, that trial courts may exercise a broad discretion in the consideration of applications for continuance of cases before them, and that an order granting or denying a continuance will not be reversed by an appellate court unless it be clearly shown that there has been a palpable abuse of discretion to the manifest injury of...
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