Hicks v. The State

Hicks v. The State. Indictment for Perjury. Í. Sufficiency of indictment. — An indictment for perjury, which charges that the defendant, on her examination as a witness before a commissioner appointed by the register in chancery to take the testimony in a suit for divorce then pending in his court, naming the parties, and stating the substance of her testimony alleged to be false, is sufficiently certain and definite ; and a general averment that the testimony was material is enough, although its materiality does not affirmatively appear. 2. Proof of adultery. — In a suit for divorce on the ground of adultery, evidence of acts committed prior to the marriage is admissible, in connection with proof of subsequent acts with the same person. From the Circuit Court of Elmore. Tried before the Hon. James R. Dowdell. The indictment in this case charged that the defendant, Ann Hicks, “on her examination as a witness, duly sworn to testify, before William S. Penick, who had been duly appointed commissioner by the register in chancery of Elmore county, Albert Wilson, to take the written testimony in a civil action for divorce in the Chancery Court of Elmore county, in which one William Shirley was plaintiff, and Annie Shirley was defendant, being'duly sworn by said W. S. Penick, who had authority to administer such oath, falsely swore that, about the middle of May in the year 1885, on Wednesday or Thursday morning, in the woods about two hundred yards from the Tallassee road, and about a quarter of a mile from Mrs. Susan Melton’s house, she saw Annie Melton on the ground, and a man by the name of Lewellen Jordan on top of her, and when they saw her they jumped up and ran ; the matters so sworn to being material, and the oath of the said Ann Hicks in relation to such matters being willfully and corruptly false.” The defendant demurred to the indictment, “because what Annie Melton did could not be material in a trial of a divorce case pending between William Shirley and Annie Shirley and the demurrer being overruled, she pleaded not guilty. On the trial, the prosecution offered in evidence the defendant’s deposition taken in said chancery suit, in which she swore, in substance as alleged in the indictment, to an act of adultery between Annie Melton (afterwards Mrs. Shirley) and Lewellen Jordan. The bill of exceptions adds: “The said bill in chancery was for divorce on the ground of adultery, and there was other evidence tending to show, in said cause, acts of adultery after marriage. The defendant objected to the admission of said evidence, because the same was not material to the issue being tried in said chancery cause,” and she excepted to the overruling of the objection. This is the only ruling shown by the bill of exceptions. T. L. Bulger, and Watts & Son, for appellant, cited Jacobs v. State, 61 Ala. 453 ; Ingram v. State, 39 Ala. 251. Thos. N. McClellan, Attorney-General, contra, cited Williams v. State, 68 Ala. 551 ; Laiuson v. State, 20 Ala. 65; Com. v. Merriam, 14 Pick. 519 ; Com. v. Eastman, 1 Cush. 216 ; Com. v, Miller, 3 Cush. 250 ; Com. v. Tuclcerman, 10 Gray, 201 ; Cross v. State, 78 Ala. 450 ; Qassenheimer v. State, 52 Ala. 319 ; Johnson v. State, 35 Ala. 370. [MAJORITY — SOMERVILLE, J.] SOMERVILLE, J. The indictment, which is one charg- ’ ing the defendant with perjury, substantially follows the form prescribed by tbe Code. — Criminal Code, 1886, Form No. 67, p. 275 ; and § 3908. Tbe substance of tbe proceedings, in wbicb tbe alleged false oatb was taken, is sufficiently averred in tbe statement tbat it was before one William Penick, wbo bad been duly appointed commissioner by tbe register in chancery, one Albert Wilson, witb authority to take tbe written testimony of tbe defendant in a civil action for divorce pending in tbe Chancery Court of Elmore county, in wbicb one William Shirley was plaintiff, and Annie Shirley was defendant. This averment is descriptive of tbe occasion of tbe alleged perjury, of tbe tribunal in wbicb tbe action was pending, and of tbe jurisdiction of tbe officer by whom tbe oatb was administered, and is intended for identification, to show tbat tbe oatb was not extra-judicial. It is not wanting in any of tbe elements of reasonable certainty, wbicb is all the law requires. Nor is it required tbat tbe materiality of the false oatb or evidence should appear upon tbe face of tbe indictment, otherwise than by general averment. This is all the prescribed form requires, and tbe form is sufficient.—Williams v. State, 68 Ala. 551; Peterson v. State, 74 Ala. 34; Jacobs v. State, 61 Ala. 448. Tbe qbjections to tbe evidence are not, in our judgment, well taken. Tbe evidence to wbicb objection was taken, was properly admitted. Tbe ground of tbe objection goes to tbe fact of tbe materiality of tbe alleged false oatb, it being urged tbat tbe fact of tbe wife’s adultery before marriage can not tend to prove her alleged adultery after marriage ; and this being tbe fact testified to, on which tbe defendant’s perjury was predicated, it is insisted tbat it was not material to tbe issues in the divorce suit, wbicb was based, on tbe ground of adultery. Tbe bill of exceptions does not purport to set out all tbe evidence introduced on tbe trial ; and for this reason tbe objection must be overruled, because, rather than put tbe court in error, we must presume tbat there may have been other evidence omitted from tbe record, wbicb would have rendered tbat objected, to relevant. But, independently of this, tbe bill of exceptions states tbat there was other evidence, tending to show acts of adultery after marriage. Construing tbe bill most strongly against tbe exceptant, in accordance witb tbe settled rule, it must be interpreted to mean evidence was offered of other acts of adnltery between tbe same parties. Tbe authorities fully settle tbe admissibility of such evidence as to anterior acts of adultery, for the purpose of proving an adulterous disposition in the persons implicated, which itself tends to prove the particular act charged, as a continuation of the same immoral proclivity.—Cross v. State, 78 Ala. 430; Lawson v. State, 20 Ala. 65; 2 Greenl. Ev. (14th Ed.), §47; and cases cited in brief of Attorney-General. The judgment must be affirmed.