Wilson v. State
| Decision Date | 26 March 1902 |
| Citation | 41 S.E. 696,115 Ga. 206 |
| Parties | WILSON v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Perjury may be assigned upon false testimony going to the credit of a witness.
2. Where an indictment for perjury charged that the offense was committed by falsely swearing in a judicial proceeding consisting of a preliminary investigation of one warrant against two persons, and the proof showed a preliminary investigation of two warrants, one against each of such persons, the variance was fatal.
Error from superior court, Whitfield county; A. W. Fite, Judge.
Hamp Wilson was convicted of perjury, and brings error. Reversed.
W. E Mann and W. H. O'Dell, for plaintiff in error.
Sam P Maddox, Sol. Gen., for the State.
The accused was arraigned upon an indictment charging him with the offense of perjury. He demurred to the indictment, and his demurrer was overruled. The case went to trial, and resulted in a verdict finding the accused guilty. He brings the case here upon a bill of exceptions, assigning error upon the overruling of his demurrer, and upon the refusal of the court to grant his motion for a new trial.
1. The demurrer contains numerous grounds, but, as only two of these grounds were insisted on in the brief of counsel for plaintiff in error, none of the other grounds will be considered. One of the grounds argued in the brief set up that the indictment was defective for the reason that it did not appear therefrom that the testimony of the accused which was alleged to be false was material to the issue under investigation in the trial in which the accused was sworn as a witness. The indictment alleged, in substance, that in the case of the state against R. E. Sloan and David Sloan charged with the offense of arson before S. B. Felker, a justice of the peace,--the judicial proceeding being a preliminary investigation before such justice upon a warrant issued against the Sloans,--the accused, after having been duly sworn as a witness, falsely testified that he had not on a day named made an affidavit before a notary public; such affidavit being set out in full in the indictment, and containing, in substance, averments that the affiant knew of his own knowledge that the Sloans had burned the house, and were guilty of the offense of arson, as set forth in the warrant under which they had been arrested, and which was the foundation of the judicial proceeding then pending before Felker, the justice of the peace; the indictment concluding with the allegations that the accused, upon the trial of the Sloans, after a lawful oath had been administered to him swore that he had not made the affidavit just referred to, when, in truth and in fact, he had made the affidavit, and well knew this fact when he swore to the contrary. In the preliminary trial before the justice of the peace to determine whether the Sloans should he held to answer for the offense of arson, was the fact that the accused denied that he had made an affidavit which in effect charged that the Sloans were, within his own knowledge, guilty of the offense set forth in the warrant, material to the matter then under investigation; that is, whether the Sloans should be held to trial upon the charge of arson? One cannot be convicted of the crime of perjury unless the false testimony related to a matter material to the issue under investigation. In other words, falsely swearing to an immaterial matter is not an indictable offense. It is not, however, essential that the fact sworn to should be material to the main issue in the case, but it is sufficient if it relates to an issue which is only collaterally involved. See State v. Shupe (Iowa) 85 Am.Dec. 485, and notes on page 493. If a witness was called in a case, and testified to a given state of facts, his credibility may be attacked by showing that on another occasion he had stated or sworn to an entirely different state of facts; that is to say, he may be impeached by proof of contradictory statements made as to matters relevant to his testimony at other times, either under oath or not under oath. Before he can be impeached in this way, however, it is necessary that his attention should be called to the time, place, and circumstances of the former statement; and, if the statement was made in writing, it should be shown to him, or read in his hearing. Civ. Code, § 5292. If he is called to testify to any material issue in the case, any matter relating to his credibility as a witness becomes collaterally material to the issue on trial; and, being thus collaterally material, perjury may be assigned upon false testimony affecting the credibility of the witness. See the numerous cases cited in the notes to State v. Shupe, supra, on pages 493, 494. Mr. Bishop, in his work on Criminal Law (volume 2 [8th Ed.] § 1032 [3]), says: ...
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