Opinion
No. 32380.
October 12, 1936.
1. PERJURY.
Where conviction of unlawful sale of liquor was obtained under evidence showing that transaction took place on "Friday before the second Sunday in April," 1936, which was the 10th of the month, witness who allegedly had been present when sale took place, and when asked whether he was present on April 11th when whisky was sold, denied that he was present on that date, could not be convicted of perjury, where witness was not asked whether he was present at such purchase on any other day.
2. CRIMINAL LAW.
Supreme Court judicially knows that the 10th of April, 1936, was the Friday before the second Sunday in April, 1936.
APPEAL from circuit court of Jones county. HON.W.J. PACK, Judge.
A.S. Scott, of Laurel, for appellant.
The record clearly shows that there was not one single iota of testimony of any witness who testified that the appellant was present with Mahalie Jefferson on the 11th day of April, 1936, when she bought liquor from one Henry Murray. Yet, the state in its instruction required the jury to determine from the evidence in the case that such was the case on the 11th day of April, 1936. When there was no testimony in the case that such was the case, then clearly the verdict and sentence is absolutely contrary to the law; and contrary to the evidence; and also contrary to both the law and the evidence.
The court erred in overruling the demurrer to the indictment.
The record shows that the question asked upon which perjury is founded in the answer of the accused was whether or not he was present on the 11th day of April, 1936, when Mahalie Jefferson bought the liquor from Henry Murray. The appellant said "no" he was not present on the 11th day of April, 1936. And also no living witness in the case at bar has ever said he was present on the 11th day of April, 1936. So, right here, in a nut shell, the court must clearly see that it must reverse and render this cause. If the appellant only swore in the county court that he was not present with Mahalie Jefferson on the 11th day of April, 1936, when liquor was bought, the liquor in question, of course, then legally there has been no perjury whatsoever. For the negro woman, Mahalie Jefferson, swore all the time, and the affidavit in the county court charged, that the said liquor in question was bought on the 10th day of April, 1936.
The court below clearly committed fatal error in submitting the case to the jury, without instruction from the state covering the proposition that no conviction may be had except on the testimony of two witnesses; or one witness and corroborating circumstances.
119 So. 303; Chenault case, 122 So. 98; Saucier v. State, 95 Miss. 226, 48 So. 840, 21 Ann. Cas. 1155.
The court below erred in refusing peremptory instruction requested on appellant's behalf at the close of the state's case.
Webb M. Mize, Assistant Attorney General, for the state.
We submit that the demurrer to the indictment was properly overruled.
Section 1214, Code of 1930; State v. Jolly, 73 Miss. 42, 18 So. 551; State v. Kelly, 113 Miss. 461, 74 So. 325.
Appellant cannot predicate error on the court's not giving an instruction where none was asked for.
Weeks v. State, 140 So. 696; Casey v. State, 161 Miss. 747, 138 So. 344.
The testimony that was before the trial court sufficiently shows that there was no error committed in refusing the peremptory instruction. The appellant cites no authority under this assignment of error, and, therefore, this assignment is waived.
Johnson v. State, 154 Miss. 512, 122 So. 529; Goodyear Yellow Pine Co. v. Lumpkin, 158 Miss. 578, 130 So. 745; E.L. Bruce Co. v. Brogan, 166 So. 350; Neno v. Clark, 166 So. 926.
Argued orally by A.S. Scott, for appellant, and by Webb M. Mize, for the state.
Appellant was convicted in the circuit court of Jones county of the crime of perjury, and sentenced to the penitentiary for one year. From that judgment, he prosecutes this appeal.
It was charged, and the state undertook to show, that the alleged perjury was committed in the county court of Jones in the case of State v. Henry Murray, in which appellant testified. Murray was tried and convicted of the unlawful sale of intoxicating liquor. Two of the principal witnesses in the case were Mahalia Jefferson and appellant. Mahalia Jefferson testified for the state that she procured appellant to take her to the home of Murray in his car; that he did so; that she bought a gallon of whisky from Murray and paid for it in appellant's presence; that appellant took her back to her home in his car, and for his services in furnishing the car to make the trip she gave him a pint of whisky. She stated that the transaction took place on "Friday before the second Sunday in April," 1936, not on or about that date. She was not asked whether that day was the 10th or the 11th of April; in fact, it was the 10th of April, as the court judicially knows. Evidently the county attorney proceeded on the idea that it was the 11th.
Appellant testified on behalf of the defendant and was asked whether or not he was present on the 11th day of April when Mahalia Jefferson claimed to have bought whisky from Murray. He denied that he was present on that date. He was not asked whether he was present at such a purchase on any other day. There was no evidence in that case tending to show that the sale was made on any other day than "Friday before the second Sunday in April" — the 10th.
On appellant's trial in this case he testified that he neither witnessed the sale by Murray to Mahalia Jefferson on the 10th or the 11th of April, or at any other time; in other words, that he knew nothing of such a sale. The question, however, is not whether the appellant committed perjury on his own trial, but whether he committed it on the trial of Murray. As we view the record, there is no conflict in the evidence as to appellant's innocence. To convict Murray in the county court the state relied on a sale made on Friday before the second Sunday in April, which was the 10th of the month. Appellant, as a witness, was not asked about that date; his testimony was confined alone to the 11th of April. The fact that his testimony in the present case may show that he would have committed perjury in the county court if he had been given an opportunity was not sufficient to put this case to the jury. The point is, he was not given such an opportunity.
Reversed, and judgment for appellant.