Yarbrough v. State

• Decision Date: 12 March 1920
• Citation: 79 Fla. 256,83 So. 873
• Parties: YARBROUGH v. STATE.
• Court: Florida Supreme Court

83 So. 873

79 Fla. 256

YARBROUGH v. STATE.

Florida Supreme Court

March 12, 1920

Error to Criminal Court of Record, Hillsborough County; W. S Graham, Judge.

A. Y Yarbrough was convicted on one count of information for perjury, and he brings error. Reversed.

Syllabus by the Court

SYLLABUS

It is well settled that a defendant is not entitled as of right to an instruction to the jury to return a verdict of acquittal.

A verdict of acquittal upon a trial on an indictment charging the larceny of an automobile is not a bar to a subsequent indictment and conviction of perjury committed by the defendant as a witness in his own behalf upon a trial on the former indictment, wherein he is alleged to have sworn falsely in substance and to the effect that he had not seen and did not have in his possession such automobile.

A defendant cannot, after securing an acquittal by perjury successfully plead such acquittal in bar of a prosecution for the perjury so committed.

Materiality of the alleged false testimony is an essential element of the crime of perjury which, in order to sustain a conviction must be alleged and proved.

To convict of the crime of perjury, the offense must be proved by the oaths of two witnesses or by the oath of one witness and other independent and corroborating circumstances which are deemed of equal weight with another witness. Such is the rule now well established on authority. And the element of the offense, which must be so proved, is the falsity of the material matter sworn to.

COUNSEL Lunsford & Whitaker and Joseph Miyares, all of Tampa, for plaintiff in error.

Van C. Swearingen, Atty. Gen., and D. Stuart Gillis, Asst. Atty. Gen., for the State.

OPINION

WEST J.

Plaintiff in error was informed against in the criminal court of record for the county of Hillsborough upon a charge of perjury. The information was in two counts. Upon a trial he was found guilty under the second count, and sentenced to serve a term of two years at hard labor in the state prison.

The charge contained in the count of the information upon which plaintiff in error was convicted is in the following language:

'That at and upon the trial of said issue so joined between the parties as aforesaid, it then and there became and was a material question whether the said A. Y. Yarbrough had seen and had in his possession one Buick Little Six model 1918 automobile, the same being a gasoline motor propelled vehicle, the property of one Charles F. Aulick, and had tried to sell the same to one M. C. Tinsley for $300 on the 19th and 20th days of January, A. D. 1919, and had addressed a certain envelope and written a certain letter to one Chas. Clinton, as hereinafter set out in full, and that the said A. Y. Yarbrough, being so sworn as aforesaid, then and there upon the trial of said issue, on his oath aforesaid, falsely, corruptly, knowingly, willfully and maliciously, before the said jurors as aforesaid, and before the said Hon. W. S. Graham, judge presiding over said court as aforesaid, did depose and swear concerning said material questions in substance and to the effect following, that is to say: That he had not seen, and did not have in his possession, and did not, on the 19th and 20th days of January, 1919, try to sell to one M. C. Tinsley for the sum of $300 said Buick Little Six model 1918 automobile, the same being a gasoline motor propelled vehicle, the property of said Charles F. Aulick, which he was then and there charged with having stolen, and that he did not write the name 'Mr. Chas. Clinton, 406 So. Halsted St., Chicago, Ill.,' on a certain envelope which was then and there exhibited to him, and that he did not write a certain letter of the following tenor, to wit: 'Lakeland, Fla., Jan. 1, 1919. Dear Friend. Will write you a few lines. This leave me well and hope it will reach you the same. Come at once and bring one good man with you. Some good thing and would like to get it at once. Close. A. Y. Y.'--and that the said letter was not in the handwriting of him, the said A. Y. Yarbrough, the said letter being then and there exhibited to and inspected by the said A. Y. Yarbrough at the time he gave said testimony as aforesaid; whereas, in truth and in fact the said A. Y. Yarbrough had seen and did have in his possession, and on the 19th and 20th days of January, A. D. 1919, did try to sell, to one M. C. Tinsley, for the sum of $300 the said automobile, the property of the said Charles F. Aulick, and whereas, in truth and in fact the said A. Y. Yarbrough did write on said envelope the following, to wit: 'Mr. Chas. Clinton. 406 So. Halsted St., Chicago, Ill.;' and whereas in truth and in fact said A. Y. Yarbrough did write said letter of the following tenor, to wit: 'Lakeland, Fla., Jan. 1, 1919. Dear Friend. Will write you a few lines. This leave me well and hope it will reach you the same. Come at once and bring one good man with you. Some good thing and would like to get it at once. Close. A. Y. Y.;' and whereas, in truth and in fact the said address on said envelope and said letter was the handwriting of him, the said A. Y. Yarbrough. Wherefore the said A. Y. Yarbrough is charged, deemed, and held to have committed willful and corrupt perjury in a judicial proceeding.'

Plaintiff in error had a few days before the trial in this case been tried in the same court upon an information charging him with the larceny of the automobile described in this information, and was found not guilty by the jury.

There are a number of assignments of error in the record, but we shall consider those only that are discussed in the brief of counsel.

The first question discussed is the refusal of the trial court, after the taking of the state's evidence, to direct a verdict in favor of the defendant. There was no error in this ruling. It has been repeatedly held by this court that a defendant is not entitled as of right to an instruction to the jury to return a verdict of not guilty. Drayton v. State, 82 So. 801; Hughes v. State, 61 Fla. 32, 55 So. 463; Ryan v. State, 60 Fla. 25, 53 So. 448; Menefee v. State, 59 Fla. 316, 51 So. 555.

The question to which most of the brief of counsel is devoted is based upon an assignment which challenges the soundness of the trial court's order denying defendant's application for a new trial. It is urged under this assignment that, inasmuch as plaintiff in error had been acquitted upon the charge of the larceny of the automobile described, upon the theory that he was not guilty of the theft of such automobile, that he could not thereafter be tried upon a charge of perjury on the ground that he testified upon the trial in the larceny charge that he had not seen and did not have such automobile in his possession upon a given date, and did not on such date offer to sell the same to another, whereas, as it is alleged, he had seen and did have such automobile in his possession on the date alleged, the contention being that these questions were necessarily involved and were passed upon by the jury on the former trial, and that to try the defendant thereafter upon the charge that in giving such evidence in the former trial he committed perjury amounts to trying him a second time for the same offense.

In support of this contention the following authorities are cited: United States v. Butler (D. C.) 38 F. 498; Cooper v. Commonwealth, 106 Ky. 909, 51 S.W. 789, 59 S.W. 524, 45 L. R. A. 216, 90 Am. St. Rep. 275. And it may be conceded that they support the proposition that an acquittal upon a given charge is a good defense to a subsequent prosecution for perjury which is based upon the assumption that defendant was guilty of the charge upon which he had been acquitted. There are, however, authorities to the contrary of this proposition. Hutcherson v. State, 33 Tex. Cr. R. 67, 24 S.W. 908; State v. Caywood, 96 Iowa, 367, 65 N.W. 385; People v. Sculley, 3 N.Y. Cr. R. 244.

But that is not this case. Here the charge of perjury upon which plaintiff in error was convicted is not necessarily based upon the assumption that he was guilty of the charge of larceny. It does not follow that because he was acquitted upon the charge of larceny that all material evidence tending to prove his guilt in that case was false, and all material evidence given in his behalf was true. Nor would it be sound policy to permit a defendant, as a witness in his own behalf, to perjure himself with impunity while all other witnesses in his behalf or in behalf of the state are held to a strict accountability for all false testimony upon a material issue given by them. The crimes of larceny and perjury are separate and distinct offenses, and in acquitting plaintiff in error upon the charge of larceny the jury did not and could not also acquit him of any perjury which he may have committed in giving evidence in the case in defense of the larceny charge upon which he was on trial.

In the case of People v. Albers, 137 Mich. 678, 100 N.W. 908, the Supreme Court of Michigan, in a case similar to this, said:

'The general proposition that one can escape punishment for...