Summary
In Chenault v. State, 154 Miss. 21, 122 So. 98 (1929), we reversed because the indictment failed to specifically allege the true facts such as date, location and persons present.
Summary of this case from Ford v. StateOpinion
No. 27806.
May 6, 1929.
1. INDICTMENT AND INFORMATION. Perjury. Indictment should charge law violations directly, not by way of recital; indictment for perjury before grand jury should aver directly that grand jury was legally impaneled, charged, and sworn, and was investigating law violations; indictment for false swearing before grand jury respecting fight should name participants, and give time, place, or circumstances by direct allegation.
In an indictment, violations of the law should be charged by direct and positive averment, and not by way of recital. An indictment for perjury, predicated upon false swearing before a grand jury, should aver directly and positively that the grand jury was duly and legally impaneled, charged, and sworn, and was, at the time of the false swearing, investigating violations of law. And where the false swearing was in reference to a fight, the indictment should name the participants, and give the time, place, or circumstances by direct allegation.
2. PERJURY. Perjury indictment, in addition to other necessary facts, should directly allege what truth is respecting matter involved.
An indictment for perjury should not only charge by proper averments the taking of the oath, the materiality of the inquiry in regard to which the oath was taken, and the authority of the person administering the oath so to do, and that the testimony was in fact corruptly and falsely given; but it should further aver what the truth is in reference to the subject-matter concerning which the oath was administered. And the truth of the matter should be directly alleged, and not merely by way of recital.
3. CRIMINAL LAW. Ruling that defendant, by questioning witness respecting defendant's good character and reputation, made witness defendant's witness as respects right to cross-examine, held not prejudicial.
In prosecution for perjury, based on false swearing before grand jury, trial court's ruling that defendant, in seeking to cross-examine one of grand jurors respecting defendant's good character and reputation in community in which he lived in respect to his veracity, made witness defendant's witness and that defendant could develop that proof as part of his case, and was not entitled to privilege allowed on cross-examining witnesses, held not reversible error.
4. WITNESSES. Party, in cross-examining witness, may interrogate him about every feature of case, and by doing so does not make him cross-examiner's witness.
Witness introduced by one party is a witness for all purposes material to case, and party on cross-examination is entitled to interrogate him about every feature of case, and by so doing does not make him witness of cross-examiner.
5. COURTS. All supreme court judges are bound by decision of case, subject to right of majority of court to overrule it.
All judges of supreme court are bound by such court's decision of a case, which then becomes law of state, subject to right, whenever a majority of the court reaches conclusion that case should be overruled, to change such decision.
6. CRIMINAL LAW. Failure of only instruction for state to correctly state testimony required to establish perjury charge required reversal.
Giving state's requested instruction to find defendant guilty of perjury as charged, if jury believed from evidence beyond reasonable doubt that defendant testified falsely under oath as witness before grand jury, held reversible error for failure to state that perjury must be established by testimony of two witnesses, or by one witness and corroborating circumstances, where it was only instruction given for state.
7. CRIMINAL LAW. Defendant's failure to request correct instruction held not to estop him from claiming benefit of state's failure to obtain it.
Failure of defendant to request instruction correctly stating testimony required to establish charge of perjury against him held not to estop him from contending for his rights because of state's failure to obtain such instruction.
APPEAL from circuit court of Chickasaw county, First district, HON. T.E. PEGRAM, Judge.
J.H. Ford, for appellant.
In order to constitute the crime of perjury before a grand jury, the thing about which the defendant was testifying must be shown to have been a violation of the law. If the facts constituting the incident under investigation are not charged to have constituted a violation of the law, then no crime for perjury is charged in the indictment. State v. Wiggins, 30 So. 712. The indictment merely charges that the defendant was asked about a fight "having taken place and did take place at the home of Jesse Davis" on the night of September 24, 1927. Nowhere is it charged as to who took part in the fight, if any one, or that such parties participating were guilty of any violation of the law in so doing. Was it a rooster fight, or dog fight, or what? It is impossible to tell from the language of this indictment. It does not charge that the alleged fight constituted a violation of the law, nor are the circumstances of the fight set forth.
The indictment fails to charge that the matters and things about which defendant was alleged to have falsely sworn were material matters in issue or, at the time, in point of inquiry before the grand jury. The allegation that certain questions and answers were material is not sufficient. The language set forth must show how it is material. In other words, it must be charged that the grand jury had under investigation and under inquiry the material questions of whether a certain thing happened and that the witness testified falsely as to certain facts, stating them, which were material to that issue or inquiry then under investigation. Merely charging that a certain material question, stating it, was asked the witness, and that the answer thereto was material, without showing how it was material or that it was material to the matters in issue or inquiry at the time, does not meet the requirements of the law. Bishop's New Criminal Law (8 Ed.), sec. 1030 et seq. The indictment fails to charge that the grand jury at the time had under investigation or at issue or under point of inquiry the matters and things about which it was alleged the defendant committed perjury. McNeice v. State, 101 Miss. 366, 58 So. 3. It is not charged that at the time the grand jury had anything at issue or under investigation. The statement that the defendant was sworn that the evidence he would give "touching the matters being investigated and the questions asked him by the grand jury and the answers thereto by him would be the truth," without charging that the matters he was testifying about were at issue and being then and there investigated, and what such matters at issue and under investigation were, does not satisfy the legal requirements, however much the pleader might allege that the question and answer or matters inquired about were "material" as a mere legal conclusion of his own.
Joe L. Davis, the foreman of the grand jury at the October term, 1927, was the first witness for the state. On cross-examination it appeared that he had known the defendant and lived within five or six miles of him all his life. He was asked on part of the defendant if he knew his reputation for truth and veracity. He answered that he had never heard it questioned. The state objected. Counsel for the defendant then asked him if from what he knew about him, he would say that he knew his reputation for truth and veracity. Thereupon the court announced that the witness on that proposition was that of the defendant and refused to permit cross-examination thereon. We think it was not fair to the defendant to require him to adopt the witness and make him his own on a material question in the case. Counsel offered to show by the witness that he did know the reputation of the defendant for truth and veracity and that it was good. The court announces in the presence of the jury that on that proposition the witness was that of the defendant himself and did not permit him to be cross-examined thereon. We do not understand the rule to be as the court announced it. He was introduced as a witness for the state and was not at any time the witness of the defendant for any purpose. The reputation of the defendant for truth and veracity is material to the issue assigned by the state that the defendant was guilty of perjury. We think that in that kind of a case the witness for the state may be cross-examined as to that material issue regardless of what may be the rule in other cases.
There was but one instruction given on part of the state. The instruction does not charge the jury that the state must prove the material facts of its case by the testimony of two witnesses, or that of one witness and corroborating circumstances, as required by law in cases of prosecution for perjury. Brown v. State, 57 Miss. 424; Saucier v. State, 95 Miss. 226, 48 So. 840; Wilbur v. State, 151 Miss. 837, 119 So. 303. "It is true it is stated in the ninth and eleventh charges for the defense; but, even if it could properly be said that these charges nine and eleven cured this omission in the first charge for the state, it nevertheless remains true that the state ought always, on a charge of perjury, somewhere in its own charges, to state the quantum of proof necessary, in order that the law of the case may be properly given. Suppose no instructions had been given for the defense on this subject; manifestly the case should be reversed for this erroneous charge No. 1 in that attitude of the case." Saucier v. State, supra. No instruction was asked or given for the defense on the quantum of proof required in the case. The instruction is also erroneous in that it fails to charge the jury that the alleged false swearing must have been either wilfully or corruptly false. Brown v. State, supra. Rufus Creekmore, Assistant Attorney-General, for the state.
The first objection which counsel make is that the indictment does not allege that the incident which the grand jury had under investigation constituted a violation of the law, and, therefore, there could be no perjury with reference to matters testified to regarding such incident. In support of this argument, counsel cite the case of State v. Wiggins, 30 So. 712. The court did not write an opinion in that case, but merely stated that the action of the circuit court in sustaining the demurrer was correct. It certainly is not the law that in order for there to be perjury committed before the grand jury, it is necessary that there actually be a crime committed, which is being investigated. In order for this offense to be committed, it is only necessary that the grand jury have under investigation a matter which it is proper for them to investigate, and that testimony was falsely given with reference to that matter. But even though such were the law, yet in the instant case the allegation is sufficient. It is not necessary to allege specifically that the matter to be investigated is a violation of the law if the facts alleged are sufficient to show that it was in reality such a violation. The meaning of the word "fight" is well known, and when the indictment alleged that the grand jury was investigating a "fight" the defendant was informed as to the matter which was under inquiry. In Sullivan v. State, 67 Miss. 346, our court held that the meaning of the word "fight" is, "to strike or contend for victory in battle or in single combat; to attempt to defeat, subdue, or destroy an enemy by blows or weapons." Certainly there is no merit in this contention.
The indictment alleges that the defendant was asked certain material questions concerning the fight, and that the questions were material, and that the answers given by him to said questions were material. This allegation could mean nothing except that these answers were material to the matter which was being investigated, and meant that this was the fight which took place at the home of Jesse Davis. This allegation as to the issue before the court is the mere matter of alleging the jurisdiction and comes within one of those averments, which Mr. Bishop calls "the inducement." "Since such matter is only inducement, it would in principle suffice either to aver in words that the jurisdiction existed, or state facts from which in law it results, both not being required; in analogy to the rule as to the materiality of that to which the witness testified. And so, in our states generally, are the authorities." 3 Bishop's New Criminal Procedure (2 Ed.), sec. 910, a. 1. It is, therefore, submitted that the first element of this offense, as defined by Mr. Bishop, has been alleged; that it has been shown that this swearing took place in a judicial investigation wherein this fight was being investigated. Under the provision of sec. 1251, Hem. Code, it was not necessary to set forth all of the facts going to show the materiality of the false testimony, but it is sufficient if it be charged generally that the matters sworn to were material. In Lee v. State, 64 Miss. 278, 1 So. 235, the court in construing this statute held that the pleader had the choice of two methods on this subject, either to charge that the matter of the false oath was material, or to set out the facts which show its materiality in law. See, also, State v. Jolly, 73 Miss. 42, 18 So. 541; Pipes v. State, 26 Tex. App. 319[ 26 Tex.Crim. 319].
While the state witness, Joe L. Davis was being cross-examined, he was asked whether he knew the reputation of the defendant for truth and veracity. He answered that he had never heard it questioned and this was objected to by the state. Counsel now say that the court refused to permit the defendant to cross-examine the witness with reference to whether or not he knew the reputation of the defendant to be good for truth and veracity. The mere reading of the record at the pages referred to will convince the court that this proposition is not well taken. The court permitted the defendant to question the witness with reference to the reputation of the defendant, but counsel saw fit to ask no questions concerning the defendant's reputation except the first question which was asked and which the witness answered by stating that he had never heard the defendant's reputation in this respect questioned.
The first objection which counsel raises to the state's instruction is that it is erroneous, because it does not announce the quantum of proof necessary for a conviction in a perjury case, and in support of this argument, Brown v. State, 57 Miss. 424; Saucier v. State, 95 Miss. 226, 48 So. 840, and Wilbur v. State, 151 Miss. 837, 119 So. 303, are cited. If the rule announced in those cases is to be followed then the granting of this instruction was error. It will be observed, however, that the court in the Wilbur case rather reluctantly followed the rule which was laid down in the Brown and Saucier cases. Justices ANDERSON and ETHRIDGE dissented from the majority opinion and stated in this dissenting opinion that the decision of those cases was unsound and that they should be overruled. In the case at bar, the reasons are specially strong why these cases should not be followed. Not only did the defendant fail to request an instruction telling the jury what was necessary to sustain a conviction for perjury, but two instructions were granted him that gave charges to the jury, announced practically the identical principles of law which were announced in the instruction requested by the state. The rule in this state is well settled that an appellant cannot complain of a charge in an instruction, even though it be erroneous, where this same charge is contained in another instruction which was granted by the court at his request. Hinton v. State, 129 Miss. 226, 91 So. 397. If the court should hold that the state's instruction in this case was erroneous, because it failed to announce the quantum of proof necessary for the conviction, yet the defendant is estopped from complaining of this instruction, because he has requested instructions, which were granted by the court, that announced substantially the same rules of law.
The appellant was indicted and convicted upon a charge of perjury, the indictment was demurred to, and the demurrer overruled. The indictment reads as follows:
"The grand jurors of the state of Mississippi, elected, summoned, sworn, and charged to inquire in and for the body of the First district of Chickasaw county, state of Mississippi, at the term aforesaid, of the court aforesaid, in the name and by the authority of the state of Mississippi, upon their oaths present that Tom Chenault, late of the district and county aforesaid, on or about the 13th day of October, A.D. 1927, with force and arms, in the district and county aforesaid, and within the jurisdiction of this court, being then and there a witness duly summoned and appearing before the grand jury, aforesaid, duly elected, impaneled, and sworn as aforesaid, at the regular October term, 1927, of the circuit court thereof, the said Tom Chenault having been then and there duly sworn by Joe L. Davis, foreman of the grand jury as aforesaid, and he being duly authorized by law to administer oaths, the said Tom Chenault did then and there take his corporal oath, and did then and there swear and say that the evidence he would give touching the matters being investigated and the questions asked him by the grand jury and the answers thereto by him would be the truth, the whole truth, and nothing but the truth, so help him God, and the said Tom Chenault being then and there asked certain material questions concerning a fight which took place at the home of Jesse Davis on the night of September 24, 1927, or thereabout, said question being a material question, and said fight having taken place and did take place at the home of Jesse Davis on or about the night of September 24, 1927, and to which material question and fact the said Tom Chenault testified under his oath to said material question and fact, and being asked by the said grand jury, `Was there a fight at Jesse Davis' next Saturday night will be three weeks ago?' Which question was a material question, and which fight did take place, he, the said Tom Chenault, in answer to said material question, did then and there unlawfully, willfully, falsely, knowingly, feloniously, and corruptly swear and say that there was no fight there, which answer was to a material question and the answer was material, which answer of the said Tom Chenault was then and there well known by the said Tom Chenault to be false, and not the truth, and his said testimony was false, untrue, corrupt, willful, and felonious on the part of the said Tom Chenault to said material matter and fact, and the said Tom Chenault did know that the fight occurred at Jesse Davis', which fight as a matter of fact did occur, and the question and answer thereto were material, and the answer of the said Tom Chenault was false, and known to be such by him, and of material importance to material fact, and the said Tom Chenault did then and there, on or about the 13th day of October, 1927, before said grand jury as aforesaid, swear falsely and corruptly to said material facts as aforesaid, and did then and there knowingly commit willful, felonious and corrupt perjury, contrary to the statute in such cases made and provided, against the peace and dignity of the state of Mississippi."
It is contended that the indictment is insufficient, because it does not properly charge the offense, and does not properly charge that the grand jury were investigating the offense at the time the questions were propounded, and that the matters set forth in the indictment were merely by way of recital, rather than an allegation. The practice of charging an indictment by recital, instead of by direct allegation, is bad, and should not be followed; but the facts of the charge should be directly alleged. While the indictment charges that the grand jury was duly elected, impaneled, and sworn at the regular October term, 1927, of the circuit court of the county, it does not charge, in appropriate language, that it was engaged in the business of investigating crime, and does not directly charge that Joe L. Davis who was legally elected as foreman of the grand jury duly and legally administered the oath. The indictment then charges that the oath was taken, and that the defendant, being then and there asked certain material questions concerning a fight which took place at the home of Jesse L. Davis on September 24, 1927, did not allege the character of the fighting or whether it was a fight between human beings, or name the persons, or any of them, engaged in the fight. The certain questions asked him are not set forth in substance, except the indictment did state one specific question which was asked, and his answer thereto.
It was urged that to merely charge a fight, or that the grand jury was investigating a fight, is not sufficient, but that the names of the parties engaged therein, or some of them, must be set forth, and that it should be alleged that it was a fight between persons, and constitutes a violation of law. The grand jury, of course, is supposed to investigate all violations of law; and if it was inquiring about a fight between human beings, constituting a breach of the peace in violation of the law, it would not be necessary for the grand jury to know the names of the persons engaged in the fight, and where it took place. This information it could get by asking the witnesses general and specific questions concerning the subject-matter of its investigation. But we think it would be a better and safer practice, in framing an indictment for perjury, that in alleging false swearing it should set out the particulars of the matter upon which the charge of perjury is predicated, and, in a case like the one before us, should charge that the fight was between certain persons at a given time and place — this in order that the defendant should be advised as precisely as necessary what specific things he was to meet in his defense of the case. This is especially true of that part of the indictment which should charge what the truth of the subject-matter of the prosecution is.
We think the indictment here involved does not sufficiently set forth the allegation as to the truth of the subject-matter. In the latter part of the indictment is charged what we presume to be intended as such a statement, to the effect that the said Tom Chenault did know that the fight occurred as Jesse Davis' — which fight, as a matter of fact, did occur — and questions and answers in regard thereto were material, and the answer of the said Tom Chenault was false, and known to be such by him, and was of material importance, and the said Tom Chenault did then and there, on or about the 13th day of October, 1927, before the said grand jury, swear falsely, corruptly, etc. It will be noted that this part of the indictment, supposed to charge the truth of the matter, does not fix the date on which the fight occurred, nor does it specify the persons engaged in the fight, nor any of them, and does not allege that the fight occurred at the residence of Jesse Davis, as stated in the former part of the indictment, alleging the propounding of the questions.
An indictment for perjury is one of the most difficult indictments to draw, and the requirements are strict as to the essential parts of the indictment. In State v. Silverberg, 78 Miss. 858, 29 So. 761, it was held that under the Code of 1892, section 1362 (which is the same section as that in the present Code under which the indictment here is returned), which provides that it shall be sufficient, in an indictment for perjury, to set forth the substance of the offense charged, the necessity of averring the substance of the issue on which the perjury is charged to have been committed is not dispensed with, and that a statute which did so would violate section 26 of the Constitution, securing to defendant the right to demand the nature and cause of the accusation against him. It was also held that the averment of falsity in an indictment for perjury must be made expressly and positively, and not by implication; and it was further held that an indictment for perjury must aver what the truth is in relation to the matter of which the perjury is assigned. The indictment before us does not conform to the principles laid down in this case, and we are of the opinion that the demurrer should have been sustained.
On the trial of the case, when one of the grand jurors was on the witness stand, the defendant sought by cross-examination to interrogate the witness as to the good character and reputation of the defendant in the community in which he lives, in respect to veracity. The court held as to this that the witness was the witness of the defendant, and that he could, if he so desired, develop that proof as part of his case; that he was not entitled, in effect, to the privilege allowed on cross-examining witnesses. We do not think that this constitutes reversible error, on the facts of this record. But the witness introduced by one party, under the rule in this state, is a witness for all purposes material to the case; and the party, on cross-examination, is entitled to interrogate him about every feature of the case, and by so doing does not make him the witness of the cross-examiner.
The state only procured one instruction, which reads as follows: "The court charges the jury, for the state, that if you believe from the evidence in this case beyond a reasonable doubt that the defendant, Tom Chenault, as a witness before the grand jury at the regular October term, 1927, testified under oath that there was no fight at Jesse Davis' house on Saturday night, September 24, 1927, and that the said grand jury was investigating the said fight, and that the fight did occur, and that then and there the said Tom Chenault knew that there was a fight at the time and place, and that he testified at the time and place and in the manner and form as alleged in this indictment, then it is your sworn duty to convict the defendant, and the form of your verdict will be, `We, the jury, find the defendant guilty as charged.'"
The appellant contends that the granting of this instruction is erroneous, and is reversible error, under the cases of Brown v. State, 57 Miss. 424; Saucier v. State, 95 Miss. 226, 48 So. 840, 21 Ann. Cas. 1155; Wilbur v. State (Miss.), 119 So. 303. The attorney-general confesses that this instruction is error, if these cases are to be adhered to. The court had the question of overruling the Brown and Saucier cases under consideration in the case of Wilbur v. State, and the majority of the court held that they should not be overruled and reaffirmed the rule announced in those cases. All the judges of this court are bound by the decision of a case, which then becomes the law of the state, subject to the right, whenever a majority of the court reaches the conclusion that the case should be overruled, to change such decision. We regard the question as settled by the decision in the case of Wilbur v. State. This instruction alone would reverse the case. The defendant did not ask an instruction on this proposition, but asked and obtained a counter-instruction along the line of the proposition announced in the above instruction. We do not think that the defendant is estopped from contending for his rights, because, under the decisions cited above, it is held that he was not called upon to request such instructions, to entitle him to the benefit of the failure of the state to get them. Consequently the defendant is not estopped from raising the question now.
Because of the errors indicated, the judgment will be reversed, the demurrer to the indictment sustained, and the defendant, Chenault, held to await the action of the grand jury at the next term of court.
Reversed and remanded.