Wright v. State
| Decision Date | 13 May 1941 |
| Docket Number | 8 Div. 954. |
| Citation | 30 Ala.App. 196,3 So.2d 321 |
| Parties | WRIGHT v. STATE |
| Court | Alabama Court of Appeals |
Rehearing Denied June 10, 1941.
Claude Wright was convicted of perjury, and he appeals.
Reversed and remanded.
Certiorari denied by Supreme Court in Wright v. State, 8 Div. 129, 3 So.2d 326.
Appeal from Circuit Court, Lauderdale County Chas. P. Almon, Judge.
Raymond Murphy, of Florence, for appellant.
Thos S. Lawson, Atty. Gen., and Prime F. Osborn, III, Asst. Atty Gen., for the State.
The indictment in this case originally contained three counts. Before entering upon the trial the defendant interposed demurrers to counts two and three thereof, which demurrers were sustained; the trial, therefore, was had upon count one of the indictment. Said count is as follows: "The Grand Jury of Said County Charge That before the Finding of This Indictment: Claude Wright, whose name is to the Grand Jury otherwise unknown, on his examination as a witness in his own behalf, duly sworn to testify on the trial of said Claude Wright in the Law and Equity Court of Lauderdale County, Alabama, on an affidavit for operating a motor vehicle while intoxicated, which said Court had authority to administer such oath, falsely swore that he, the said Claude Wright, was not driving the said motor vehicle, the matters so sworn to be material, and the testimony of the said Claude Wright being willfully and corruptly false."
The record discloses that one B.T. Romine, the principal State witness upon both these trials, made affidavit on the 3rd day of May 1939, charging this appellant, defendant below, with the offense of operating a motor vehicle, in the City of Florence, Alabama, while intoxicated. Said affidavit was sworn and subscribed to before Ernest L. McClure, ex officio Clerk of the Law and Equity Court of Lauderdale County, in which court the trial of defendant was had upon said affidavit. In the Law and Equity Court, aforesaid, several witnesses were examined upon the trial of Claude Wright, and said trial was had before a jury in said case, who returned a verdict of, "We the jury find the defendant not guilty." On the original trial in the Law and Equity Court, the defendant testified in his own behalf and stated (1) he was not intoxicated, and (2) that he was not driving the car. His several witnesses testified to identically the same thing.
As stated above, the indictment in this case charged that the defendant's testimony on the first trial that "he was not driving the said motor vehicle," was false, and that this particular part of his testimony was material, and was wilfully and corruptly false.
It affirmatively appears, from this record, that the testimony of this defendant was identically the same on both of the trials, as was that of several witnesses who testified as did the defendant on both of these trials; it thus appearing that the issue of fact, and also the testimony, was the same in both trials of this defendant.
Earnest counsel for appellant insists that, the real and only issue of fact having been duly and legally adjudicated upon the first trial in a court of competent jurisdiction by the jury, who heard and tried the first case, and said by their verdict that the defendant was not guilty, this should be conclusive of the case at bar.
The proposition of law embodied in the foregoing insistence has, we find, been the subject of much comment in the courts of numerous jurisdictions; and the decisions of the several courts on this question are in marked conflict. As to the rule in this State, this court, in the cases of McDaniel v. State, 13 Ala.App.318, 69 So. 351; and Jay v. State, 15 Ala.App. 255, 73 So. 137, certiorari denied Ex parte Jay, 198 Ala. 691, 73 So. 1000, has been definitely settled that such an insistence is untenable, and that a plea of this character is no answer to the indictment. In the Jay case, supra, numerous citations of authorities upon the proposition, pro and con, appear. We find no necessity of discussing the proposition further. This, for the reason that a discussion and further decision of the question is not necessary to a conclusion in this case. In this connection, however, it appears in the case at bar, the acquittal of the defendant upon the first trial was not rested solely upon his testimony, as there were several other eye witnesses, who, as stated, testified on each trial, to exactly the same facts as did the defendant. No indictment, however, was sought as to any of these witnesses, except the defendant.
Appellant's counsel, in briefs, makes the assertion that the prosecution in the two cases against appellant was the result of the vindictive activities of the original prosecutor, and insists that the facts as shown by the record bear out and sustain this assertion. In support of the foregoing assertion our attention is directed to the following facts as shown by the record: (1) That without complaint from anyone, and without misconduct of appellant in any manner, and without a warrant of arrest or other legal authority, the prosecutor followed defendant's car for several blocks in the City of Florence on the Sunday morning in question and when defendant's car stopped for the purpose of one of the (two) young friends, who were riding in the car also, to buy a package of cigarettes, at which time Romine, the prosecutor, arrested him for the alleged driving of the car while intoxicated, placed him in prison, and on the next succeeding day made the affidavit, hereinabove mentioned, and upon which the defendant was put upon trial in the Law and Equity Court, which trial after a full and thorough examination of all the witnesses resulted in the acquittal of the defendant of the offense with which he was charged. That Romine, the prosecutor, and principal State witness, being dissatisfied and chagrined with the result of the trial, immediately set about to corral, from among his cohorts, other witnesses who were not examined as witnesses on the original trial, and upon whose testimony, coupled with his own, Romine succeeded in having the grand jury to indict, not all of the witnesses, who testified as did defendant on the first trial, but only the defendant Claude Wright, for perjury in the alleged false swearing in the first trial.
The foregoing contentions of counsel for appellant appear to be substantially supported by the record; but all this was for the jury to consider, and not for this court to pass upon and determine; the jurisdiction here being appellate only in questions of this character.
It is further insisted that the trial court erred in several instances in its rulings upon the admission and rejection of the testimony; and further, that there was error in the action of the court in overruling and denying the defendant's motion for a new trial.
Upon examination of the rulings of the court upon the admission of testimony to which exceptions were reserved, we find some of the exceptions to be well taken; notably, the rulings of the court upon the cross-examination (on rebuttal) of State witness Romine, the original prosecutor, upon whose testimony the State relied principally for a conviction of the defendant.
Upon the direct examination of said witness he was allowed to, and did testify, fully as to the facts and circumstances pertaining to the trial of this case. Also to the fact that he had testified as a witness for the State on the first trial of this defendant in the Law and Equity Court. Upon cross-examination of this witness the defendant propounded...
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