Opinion
32354.
DECIDED MARCH 18, 1949.
Perjury; from Gilmer Superior Court — Judge Hawkins. November 20, 1948.
H. L. Buffington, Watkins Edwards, Howell Brooke, for plaintiff in error.
James T. Manning, Solicitor-General, contra.
1. ( a) For a conviction of perjury, the falsity of the testimony of the defendant must be established by two witnesses or one witness and corroborating circumstances. See Code, § 38-121.
( b) In the instant case, the falsity of the testimony of the defendant was established by two witnesses. One was Robert Tye Noland, the witness who swore that the defendant was not in Dalton with him at a particular time; and the other was the witness who swore that Robert Tye Noland, at the particular time in question, was at her home in Gilmer County, 35 or 40 miles from Dalton, engaged in robbing her. The result of the testimony of each of these two witnesses is the positive contradiction of the testimony of the defendant as to the whereabouts of Robert Tye Noland at a particular time.
2. On the trial of a defendant charged with perjury, the judge should instruct the jury that, before they would be authorized to convict, the charge must be established by the testimony of two witnesses, or by one witness and corroborating circumstances. However, the failure so to charge in the instant case was harmless to the defendant, as he introduced no evidence, and two witnesses for the State testified positively in contradiction to the testimony alleged to be false, which he gave on the committal trial of Robert Tye Noland, and for which he was indicted in the instant case. See Manning v. State, 33 Ga. App. 610 (6) ( 127 S.E. 475); Oxford v. State, 40 Ga. App. 511 (4) ( 150 S.E. 466).
3. The judgment of the trial court overruling the motion for a new trial as amended is without error.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.
DECIDED MARCH 18, 1949.
The plaintiff in error, Leonard Potts, herein referred to as the defendant, was indicted in the Superior Court of Gilmer County for the offense of perjury, for that the defendant did, on September 20, 1948, unlawfully, wilfully, knowingly, absolutely, and falsely swear in a judicial proceeding of the Justice Court of the 850th District, G. M., said judicial proceeding being the committal trial of the State of Ga. v. Robert Tye Noland, charged with the offense of robbery.
The false testimony given by the defendant on said committal trial is alleged to be as follows: "I remember the occasion on or about July 19, 1948, when there was supposed to have been a robbery committed in Gilmer County, Georgia, and at the time of that robbery, which was around 9 o'clock or 10 o'clock at night, I was in Dalton, Georgia at the Dalton Theater, and Robert Tye Noland and Ed Silvers were with me, and we three stayed together around four hours, during which time we were in the show, on the street, and at a beer joint, and road (rode) around town in an automobile, which four hours were from 6 to 10 o'clock on the night of July 19, 1948."
From the evidence it appears without dispute that the defendant testified in the justice court as alleged in the indictment. This testimony is directly contradicted by Robert Tye Noland, who positively testified in the instant case that the defendant herein was not with him in Dalton on the occasion in question. His testimony is also positively contradicted by that of Mary Sitton. She testified in the instant trial in substance that on July 19, 1948, Robert Tye Noland was at her house in Gilmer County between 9 and 10 p. m. engaged in robbing her of a sum in excess of $300. It also appeared that she lived in Gilmer County some 35 or 40 miles from Dalton.
The jury trying the case returned a verdict of guilty and the sentence of the court was accordingly entered. The defendant filed a motion for a new trial on the general grounds and on one special ground, in which he contended that the trial court erred in failing to charge, without request, Code, § 38-121, to the effect that the testimony of a single witness is generally sufficient to establish a fact; that perjury is an exception to the general rule, two witnesses being required to convict in perjury cases, or one witness and corroborating circumstances. The trial court overruled the motion for a new trial as amended, and on this judgment the defendant assigns error.