Opinion
33853.
DECIDED JANUARY 21, 1952.
Subornation of perjury; from Clayton Superior Court — Judge Guess. September 14, 1951.
E. L. Reagan, Edwin S. Kemp, for plaintiff in error.
Roy Leathers, Solicitor-General, contra.
1. Failure of the trial court to charge the jury on impeachment of witnesses is generally not error in the absence of timely written request.
2. The verdict was amply supported by the evidence and, having the approval of the trial court, will not be disturbed.
DECIDED JANUARY 21, 1952.
H. H. Hinton was indicted in the Superior Court of Clayton County for the offense of subornation of perjury. The indictment charged that he solicited and procured Rolfe Moss, Hughlon Duffy and Henry Bunn to swear falsely at the previous trial of the defendant for the offense of selling beer on Sunday, in the City Court of Clayton County, at the June term, 1950; that they had not purchased the beer which was found in their automobile on a Sunday afternoon from the defendant on that date, as they had previously stated to the police officers, but had in fact purchased it on the previous Saturday.
The State's evidence was in substance that the three witnesses had been examined by State troopers while driving an automobile on U.S. route 42 in Clayton County on a certain Sunday because of the foggy condition of their windshield; that they had in their possession three quart containers of beer in a paper bag which, upon being questioned by the troopers, one of the witnesses, Bunn, explained that they had gotten about thirty minutes previously from the defendant's place of business in Clayton County; that he repeated this statement to the county police; that on the basis of this information an accusation was preferred against the defendant and subpoenas were issued for the three witnesses; that the sheriff serving the subpoenas did not know where to find the witnesses and went by the defendant's residence to inquire where they might be located; that the defendant gave him this information and requested he ask the witnesses to come by and see him before the trial; that the sheriff then served the subpoenas and wrote on the bottom of at least two of them the words, "Go see Harry Hinton tonight"; that the witnesses went to see the defendant that night; that they told the defendant they were sorry to have gotten him in trouble and the defendant instructed them that if they would testify merely that they had bought the beer on Saturday that would be the end of it; that, with the desire of helping the defendant, they subsequently so testified; that this testimony was false; that as a result thereof the defendant was acquitted, and shortly thereafter each of the witnesses was placed under arrest charged with the offense of perjury; that immediately after their arrest they separately gave the police sworn statements as to the facts set out above and that these sworn statements are correct and the testimony which they gave upon the trial of the case is false.
The defendant produced several witnesses corroborating his statement to the jury that he had not discussed this matter with the boys in front of his place of business as they contended, but that it had been inside the establishment in front of the counter, and that the boys had there told him they very much regretted getting him in trouble; that they had been frightened and lied to the police in the first instance about buying the beer on Sunday, since they remembered buying it on Saturday night, and that the defendant had then told them to go on down and testify to the truth and that would be all there was to it. This was denied by the three witnesses.
The jury found the defendant guilty on each of the three counts of the indictment, and the defendant thereafter made a motion for a new trial which was later amended by the addition of three special grounds. The overruling of this motion is assigned as error.
1. The defendant contends in the first special ground of the motion for a new trial that the court erred in failing to charge the provisions of Code § 38-1803 relative to the impeachment of witnesses by proof of prior contradictory statements and the sustaining of such testimony by proof of general good character. No request was made for such charge, and the court did charge the law as to credibility of witnesses. "Where the judge charges the jury that the credibility of the witnesses is to be determined by the jury, and there is no request to instruct the jury as to the rules by which to test the credibility of the witnesses, the omission of such instructions is not cause for a new trial." Guy v. State, 72 Ga. App. 395 (1) ( 33 S.E.2d 853). Failure to charge on the effect of contradictory statements of the witness, without request, is not such error as to require the grant of a new trial. Long v. State, 127 Ga. 350 (4) ( 56 S.E. 444). Failure to charge on impeachment of witnesses generally is not error in the absence of request. See Code (Ann.), § 81-1101, catchword, "Witnesses"; Phillips v. State, 121 Ga. 358 ( 49 S.E. 290). This special ground is without merit.
2. The remaining special grounds are but amplifications of the general grounds and will be treated with them. Among the elements essential to a conviction for subornation of perjury are that perjury was committed; that it was committed in a judicial proceeding, that the defendant wilfully procured or induced the witness to commit such perjury, and that the offense must be shown by at least two witnesses, or by one witness and other corroborating circumstances. Here three witnesses testified as to the successful efforts of the defendant which induced them to swear falsely, the record of the judicial proceedings in which they so swore was introduced and testimony relating thereto was offered by the judge and court stenographer of that court, and the testimony of the witnesses was further circumstantially supported by the testimony of the sheriff who had delivered the subpoenas with the request to see the defendant, witnesses who saw the defendant and the three boys together afterward, and their own conduct as shown by their contradictory statements. Thus, the verdict was supported by the evidence and, having the approval of the trial court, will not be reversed.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.