Williams v. Commonwealth

• Decision Date: 03 October 1941
• Citation: 287 Ky. 659,154 S.W.2d 728
• Parties: WILLIAMS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

154 S.W.2d 728

287 Ky. 659

WILLIAMS v. COMMONWEALTH.

Court of Appeals of Kentucky

October 3, 1941

Appeal from Circuit Court, Leslie County; Guy L. Dickinson, Special Judge.

Andy Williams was convicted of false swearing, and he appeals.

Reversed with directions.

A. T W. Manning, of Manchester, and T. E. Moore and K. N. Salyer both of Hazard, for appellant.

Hubert Meredith, Atty. Gen., and H. Appleton Federa, Asst. Atty Gen., for appellee.

THOMAS Justice.

The appellant, Andy Williams, was convicted in the Leslie circuit court of the crime of false swearing and punished by three years confinement in the penitentiary. The alleged false oath as a foundation for the indictment was the testimony given by appellant at the trial of the same election contest involved in the case of Elvin Williams, whose conviction for a similar offense was reversed by us on September 26, 1941, in the case of Williams v. Commonwealth, 287 Ky. 570, 154 S.W.2d 563. The instant appellant complains of two of the same errors as did Elvin Williams on his appeal, and which we sustained. They were (1) error of the court in overruling appellant's motion for a change of venue, and (2) error in overruling his motion to quash the indictment-each of which we sustained in that (Elvin Williams) opinion. That appellant in that case also relied on a third ground which we also sustained, and which was-that the testimony in his case did not measure up to the requirements of the law to sustain a conviction of false swearing, or perjury, in that there was no corroboration of the only witness who testified to the falsity of appellant's testimony in the contested election case.

In addition to relying upon the first two grounds that are common in both this and the Elvin Williams case, appellant here also argues as grounds for reversal of his conviction (a) that the court erred in overruling his demurrer to the indictment, and (b) in overruling his motion to set aside the swearing of the jury because of improper argument by prosecuting counsel. The judgment will have to be reversed because of errors (1) and (2) found to exist in the Elvin Williams case, and the reader is referred to that opinion for our discussion and disposition of them.

Additional ground (a) appearing in this case, but not appearing in the Elvin Williams case, is also well taken, since it is essential to an indictment for false swearing or perjury, for the indictment to not only allege that the testimony, or false oath of the accused, was false, but also that at the time he gave it he knew it to be false, and that requirement is not met by general language in the description of the offense in the indictment saying that the false testimony was "wilfully, feloniously and knowingly" given by the one so accused. The case of Adams v. Commonwealth, 123 Ky. 258, 94 S.W. 664 665, 29 Ky. Law Rep. 683, involved an indictment for the same offense as is here preferred against the instant appellant. It alleged that the false testimony given by the accused was "wilfully, knowingly and feloniously" given; but it was nevertheless held by us to be insufficient because it did "not sufficiently charge that the accused knew the testimony he gave to be false. Knowledge of the falsity of the evidence [false oath] is essential to the offense." The same essential to a proper indictment for this character of offense has been sustained by this court in many cases both preceding and following the Adams opinion. Some of the later ones are Pipes v. Commonwealth, 148 Ky. 174, 146 S.W. 38; Sizemore v. Commonwealth, 210 Ky. 401, 276 S.W. 123, and Wheeler v. Commonwealth, 248 Ky. 728, 59 S.W.2d 992. That the general language ordinarily found in the descriptive part of such an indictment, to the effect that the defendant "wilfully, feloniously and knowingly" made the alleged false statement, did not meet the essential charge that the accused knew at the time he gave his testimony, or made the false oath, that what he stated was false, is expressly declared in the Pipes opinion [148 Ky. 174, 146...