Saucier v. State

Whitfield, O. J.,

delivered the opinion of the court.

It was error in the court below to permit the state to show, by the testimony of-George Malone, Emma Speers, and Lillian Gardner, the different conversations had, in the absence o-f the appellant, between Bryant Lemon and these parties. This testimony had nothing to do with the guilt or innocence of this appellant on the charge perferred against him, and it could only have tended to- inflame the jury against him, by clouding the question of his guilt or innocence on this specific charge with incompetent testimony showing the disreputable conduct of Lemon, with which conduct this appellant is not shown to have any connection whatever. This- testimony is expressly condemned in the case of Brown v. State, 57 Miss. 424 , a case of perjury.

It was also manifest error to allow the state, over the objection of the appellant, to prove that Bryant Lemon had fled, and introduce the judgment of forfeiture on his bond in the trial of this case for perjury. Lemon had been arrested, charged with robbery. Whether Lemon had fled or not had nothing to- do with the guilt or innocence of Saucier on this charge of perjury. The case of Pulpus v. State, 82 Miss. 555 , 34 South. 2 , settles this. See, also, 1 Wigmore on Evidence, p. 353, § 276, note “c,” and People v. Stanley, 47 Cal. 114 , 17 Am. Rep. 401 .

*233 It was also manifest error to allow the state to introduce in ■evidence the pants of Beleaise, the man whom Bryant Lemon had been charged with robbing. The court admitted these pants ■on the ground, as stated in the record, “that Beleasie testified that somebody had robbed him, and therefore his pants were competent, and that it might be in some way connected.” It is perfectly obvious that the pants of Beleaise were offered in evidence for no other purpose than to show that Beleaise had been robbed; this being hoped to be shown by the condition of the pants. But what possible relevancy to Saucier’s innocence or guilt of perjury had the pants of Beleaise, even if they were in condition to show that Lemon had robbed Beleasie ? They are two distinct, disconnected offenses. Indeed, the learned judge below seems, unfortunately, to have confused, throughout the ■entire trial of this case, the charge against Lemon for robbing Beleaise with the charge against Saucier for perjury, and to have supposed that in some way it was essential to show, or at least competent to show, these things which we have pointed out, on the trial of Saucier for perjury. In all this he was clearly in error, and it is impossible to say, with any certainty, that these errors, when combined, do not constitute reversible error, and that these flagrant errors may not have contributed materially ■to produce a verdict of guilty.

It was also error to give the first instruction for the state, which is in the following words: “The court instructs the jury, on behalf of the state, that if you believe from the evidence beyond a reasonable doubt that defendant, Wallace Saucier, testified as a witness in the justice of the peace court before H. D. Moore, on the 27th day of August, 1908, on the trial of the case of the State of Mississippii against Bryant Lemon, charged with the robbery of S. E. Beleaise, and that said defendant, Saucier, was sworn by the said H. D. Moore, justice of the peace as aforesaid, to testify to the-truth in said matter, and that the said Saucier then and there, under said oath, did wilfully, corruptly, knowingly, and feloniously testify in said court in said cause that he, the said defendant, Saucier, was with the said *234 Bryant Lemon from 4 o’clock of tbe evening of August 26, 1908, until the following day, and that the same was a material matter in said cause, and that the said defendant, Wallace Saucier, then and there knew that in fact and truth he was not with the said Bryant Lemon from 4 o’clock of the evening of August 26, 1908, until the following day, you should find the defendant guilty as charged in the indictment.

When the state asked the law applicable to this indictment for perjury, it should, in some of its charges, have told the jury that the assignment of perjury should be established by the testimony of two< witnesses, or one witness and corroborating circumstances. The quantum of proof required in perjury is well known, and somewhere in the state’s charges that quantum should be stated to be necessary. 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 number one in that attitude of the case. The charge number one for the state in this respect is therefore none the less erroneous. Whether, in view of the fact that the ninth and eleventh instructions were given, this omission in the first instruction for the state on this point would constitute reversible error of itself alone, it' 'is not necessary now to decide.

This instruction is erroneous in a second particular, which is. not cured by any instruction given for the defense, to wit: This first instruction left it to the jury to decide whether the assignment of perjury was a material matter in the case. This is expressly held error in Cothran v. State, 39 Miss. 541 . See State v. Famnon, 158 Mo. 149 , 59 S. W. 75 , also. But this, also, we do not hold reversible error.

*235 Another assignment of error most earnestly insisted upon is that the indictment alleged that the perjury was committed on the 26th day of August, whereas on the trial the evidence-showed that it was committed on the 27th day of August, and that this was a fatal variance, not amendable under our statutes. The court allowed the amendment to be made, whereby the indictment was made to charge that the perjury was committed on the 27th day of August. Learned counsel for the appellant, in his very ingenious and able brief, puts the matter as if the day on which the perjury was committed was of the essence of the crime of perjury. This is a misconception, or, as Mr. Bishop calls it, a mistake, in his first volume on New Criminal Procedure (section 401, par. 5), where he says: " 'In swearing/ says-the report, 'at a trial before the Circuit' Court of the United States, holden at Portsmouth on the 19th day of May, A. D. 1811/ a record which showed this court to- have been in that year holden 'on the 20th day of May, the 19th of May being Sunday/ was rejected as not sustaining the allegation. The liability of the pleader incautiously to make the allegation of the time of this offense thus descriptive, and the consequence when he mistakes the date, are probably the origin of the mistake, occasionally appearing in the books, that, speaking in general terms, the common-law indictment for perjury must allege correctly, and the evidence must so prove, the day of its-commission, or there will be a fatal variance.” It is not that the time or the day on which the perjury is committed is of the essence of the crime of perjury; but if the indictment incautiously alleges one term of court, for instance, when the perjury really occurred at another term, or especially if the prejury was committed in reference to records, depositions, or affidavits, etc.,, which said records, etc., were to be identified by the day on which they were made, then, if there shall be a variance between the proof and the date shown in such records, etc., or a variance as to when the court really was held, such variance is fatal.

The true doctrine on this subject is very clearly stated in the *236 opinion of Mr. Justice Peckham in tbe case of Matthews v. United States, 161 U. S. 500 , 16 Sup. Ct. 640, 40 L. Ed. 787 . That opinion is so valuable on tbis point that we quote it in full: “Tbe only point suggested by counsel for plaintiff in error upon wbicb to obtain a reversal of tbe judgment is tbe fact of tbe variance between tbe indictment and tbe proof as to tbe day wben tbe alleged perjury was committed. We tbink tbe decision of tbe court below was clearly right. Tbe cases cited by counsel for plaintiff in error, in regard to tbe necessity for specific and accurate proof of tbe very day upon wbicb tbe perjury was alleged to bave been committed, were those in relation to records, depositions, or affidavits, wbicb were to be identified by tbe day on wbicb they were made or taken. Tinder such circumstances a misdescription of tbe date of tbe particular record, deposition, or affidavit has sometimes been held fatal on tbe ground, substantially, that it has not been identified as tbe particular one in wbicb tbe perjury is alleged to bave been committed, because tbe record or other paper itself bears one date and tbe indictment describing it bears another. It is not tbe same record, and therefore there is variance, wbicb has been held fatal to a conviction. In tbis case there was no record wbicb was contradicted by tbe proof given upon tbis trial. Tbe trial was described accurately, tbe parties to it, tbe court in wbicb it took place, tbe term, and tbe time at wbicb it was tried, and tbe only difference between tbe allegation in tbe indictment and tbe proof in tbe case is that during tbis trial, wbicb occupied several days, tbe plaintiff in error swore on tbe 6th of June, instead of on tbe 7th, as alleged in tbe indictment, to the matter wbicb was alleged to be false. Tbe date upon wbicb tbe evidence was given, wbicb was alleged to bave been false, appeared by tbe stenographer’s minutes, who took tbe evidence on tbe trial, to bave been tbe 6th of June. Tbis is no record, and it is not within tbe principle upon wbicb tbe cases relied upon by counsel for plaintiff in error were decided. Such a variance as appeal’s in this case is not material. Rex v. Coppard, *237 3 Car. & P. 59; Keator v. People, 32 Mich. 484 ; People v. Hoag, 2 Parker, Cr. R. 9 . It will be seen that the time was stated under a videlicit in this indictment, although that fact is probably not very material. The opinion written by the learned judge in denying the motion for a new trial and in arrest of judgment says all that is necessary to be said in this case, and we concur entirely in the conclusion reached by him.” The same doctrine is laid down in 2 McClain on Criminal Law, § 882, and in 16 Ency. PL & Pr. p. 348, including note 2, and the authorities therein cited, especially Commonwealth v. Soper, 133 Mass. 393 , and Keator v. People, 32 Mich. 484 .

LEt is to be most especially observed, further, that the indictment in this case nowhere charges that the justice’s court was held on the 26th day of August. The allegation, so far as time is concerned, is merely, and only, that Saucier, the appellant,, committed the perjury on the 26th day of August. There is no allegation that the court was held on the 20th day of August. It is simply averred on this piont in the indictment that Wallace-Saucier, late of the county aforesaid, on the 26th day of August, A. D. 1908, at a term of the justice of the peace court held in the city of Gulfport, supervisor’s district 2, Harrison county,. Miss., and presided over by H. H. Moore, justice of the peace for said supervisor’s district, in said county and state, in said court of law, in case of the State of Mississippi against Bryant Lemon, charged with robbery, testified, etc. The “then and there” refer to the time of the alleged commission of the perjury by said Saucier, not to any time when the court was held. Besides all which, it is further to be observed that there is no particular term of court of a justice of the peace when suck court is held as a committing court. There is, therefore, not in this case any allegation as to the term of the justice of the-peace’s court being held at any particular time, and so no necessity for treating such description of the term of the court as one not to be contradicted by parol. In short, when the indictment is critically examined, it appears that the only point left to be *238 made is that it was a fatal variance to allow evidence to be introduced to show that Wallace Saucier delivered verbal testimony wherein he committed perjury on August 27th, when the indictment alleged merely that he committed this perjury on the 26th. It is perfectly clear who the presiding justice was, who the parties were to the case, what the case was on trial, that he was properly sworn, etc. The only thing objected to, when the record is closely scanned, is that he is alleged to have committed perjury on the 26th, and the testimony was offered to show that he committed it on the 27th. This is no variance fatal to the prosecution — no variance preventing a proper amendment on an indictment, such as was had.

But for the many manifest errors which we have hereinbefore .pointed out the judgment is reversed and the cause remanded.