Whittle v. State

• Decision Date: 02 December 1901
• Citation: 30 So. 722,79 Miss. 327
• Court: Mississippi Supreme Court
• Parties: PERRY WHITTLE v. STATE OF MISSISSIPPI

30 So. 722

79 Miss. 327

PERRY WHITTLE v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

December 2, 1901

FROM the circuit court of, second district, Perry county.HON JOHN R. ENOCHS, Judge.

Whittle the appellant, was indicted, tried and convicted of perjury and appealed to the supreme court.The facts are stated in the opinion of the court.

Reversed and remanded.

Hall & Leverett, for appellant.

The only material issue in this case, as will clearly appear from an analysis of the evidence as well as from the instructions given for the state, is whether or not appellant was present at the scene of the transaction about which he testified, and saw or did not see the occurrences which he narrated on the witness stand.This being true, the court below erred in refusing the instruction asked by appellant to the effect that the jury could not convict him of the perjury charged unless it was proved by two witnesses, or one witness and corroborating circumstances, that appellant was not present at the scene of, and did not see, the occurrences to which he testified.

Monroe McClurg, attorney-general, for appellee.

The question was not whether appellant was at the place where the assault and battery about which he testified was committed, but whether he swore falsely as charged; hence, the court below properly refused the instruction asked by appellant to the effect that there could be no conviction without the evidence of two witnesses, etc., that Whittle was not at said place, etc.

OPINION

TERRAL, J.

Perry Whittle was indicted for perjury, predicated on his testimony in the trial in the circuit court of Perry county on the 24th day of October, A.D. 1900, of one Norwood, for assault and battery upon Griffin with intent to kill and murder.No record of said trial was given in evidence, but Mixon, the clerk of the circuit court, testified, without objection, that Norwood was tried at the October term, 1900, of said circuit court for assault and battery upon Griffin with intent to kill.It was essential to prove by the record of the trial of said cause, if in existence, that Norwood was tried on the 24th day of October, 1900, in the circuit court of the second district of Perry county, on an indictment against him for assault and battery upon Griffin; and no such evidence was given or offered.Whart.Cr. Ev., secs. 103, 115;Archb. Cr. Prac. & Pl., sec. 602.

The assignment of perjury made...