Wilson v. State, s. 73-73

• Decision Date: 05 October 1973
• Docket Number: 73-74,Nos. 73-73,s. 73-73
• Citation: 284 So.2d 24
• Parties: Delores WILSON, Appellant, v. STATE of Florida, Appellee. Donald R. JONES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 24

284 So.2d 24

Delores WILSON, Appellant, v. STATE of Florida, Appellee.

Donald R. JONES, Appellant, v. STATE of Florida, Appellee.

Nos. 73-73, 73-74.

District Court of Appeal of Florida, Second District.

Oct. 5, 1973.

Frank Clark III, Cocoa Beach, for appellants.

Robert L. Shevin, Atty. Gen., Tallahassee, and Richard C. Booth, Asst. Atty. Gen., Tampa, for appellee.

COWART, JOE A., Jr., Associate Judge.

The appellants were charged and tried for judicial perjury relating to testimony each gave in a prior murder trial in which appellant Delores Wilson was defendant and appellant Donald R. Jones, her brother, was a defense witness.

The appellant Delores Wilson first claims that comments by the prosecutor during closing argument accused her of murder, bigamy and adultery. The charge here was with reference to testimony in the previous murder trial and everyone, including the jury understood this. The reference of the prosecutor was to the prior 'murder trial' and to the man who was 'murdered.' These references were necessary for intelligent argument under the circumstances. The reference to bigamy was objected to, the court properly cautioned the jury to disregard the comment. The reference to adultery went without objection, and, while a characterization by the prosecutor, was not without support in the testimony.

Both appellants claim the trial judge erred in not giving a requested defense instruction as to the Defense of Mistake citing law to the effect that a reckless statement made in ignorance of its falsity and with an honest belief in its truth is not perjury. Properly speaking, the description Defense in a criminal case should be reserved for matters in the nature of confession and avoidance where the accused asserts and proves facts in addition to those directly involved in proof or disproof of the ultimate facts alleged in the charge.

Here, the instructions given relating to the State's burden of proof of each element of the offense, including the charge that the accused 'then and there knowingly swore falsely' and that the offense was committed by one who 'willfully swears of affirms falsely-' were sufficient to advise the jury of the willfulness required and to have negatived any proper concept of mistake without the necessity of giving separate defense instructions as to the converse of that proposition. Under the instructions given and the issues argued by counsel, if the jury had believed the testimony of the accused in their perjury trial the jury would not have rendered a verdict of guilty. On the other hand the testimony of the accused in this case given to convince the jury of their mistaken testimony in the prior case may have convinced the jury that their testimony was so susceptible of error as to be unreliable in this case.

Both appellants claim the trial judge erred in not instructing the jury on the element of materiality in a perjury case. Under the rationale of Wolfe v. State, Fla.App.1972, 256 So.2d 533, following a majority view, the issue of materiality in a perjury case is one of law for the court and not of fact for the jury and the trial of a judicial perjury case is the only instance known where under the law of this state a trial judge in a criminal jury case can direct a verdict against the defendant even as to one element of an offense. The trial judge here did probably err in submitting the issue of materiality to the jury but that error is in favor of the appellants in that the State was thereby given the additional...