State v. Burns , 120 S.C. 523 ( 1922 )

July 6, 1922. The opinion of the Court was delivered by The defendant was indicted for and convicted of perjury, alleged to have been committed by falsely swearing at a preliminary hearing before a magistrate.

The defendant, being duly sworn, testified at the preliminary hearing in the case of State v. Richard Jones that he saw Richard Jones hit Sam Moultrie in the head with a black jack and kick him into Pocataligo River. On the trial of Richard Jones in the Court of General Sessions, the defendant testified that his previous testimony before the magistrate upon the preliminary hearing was false, and that Richard Jones did not hit Sam Moultrie in the head with a black jack and did not kick him into the Pocataligo River.

The trial Judge overruled defendant's motion for a directed verdict made upon the ground that there was no evidence tending to establish the falsity of the defendant's statement at the preliminary hearing (constituting the subject-matter of the alleged perjury), except the contradictory statement of defendant upon the trial in General Sessions. The sole question raised upon the trial is whether the defendant's subsequent contradictory testimony, accompanied by a definite admission that his testimony as previously given was false and untrue, was sufficient to support a conviction of perjury.

It is well settled that a conviction for perjury cannot be sustained merely on the contradictory sworn statements of the defendant. The State must prove which of the two statements is false, and must show the statement, which is made the basis of the perjury charge, to be false by other evidence than the contradictory statement. 21 R.C.L. 271; People v. McClintic, 193 Mich. 589, 160 N.W. 461, L.R.A. 1917C, 52; State v. Binkley,123 Ark. 240, 185 S.W. 279; Billingsley v. State,49 Tex.Crim. 620, 95 S.W. 520, 13 Ann. Cas. 730; Schwartz v.Com., 27 Grat. (Va.) 1025, 21 Am. Dec. 365; Paytes v.State, 137 Tenn. 129, 191 S.W. 975, L.R.A. 1917C, 955. This general rule is recognized in the case of State v. Hayward, 1 Nott McC. 546, wherein Mr. Justice Cheves says:

"It is the falsehood only of the oath (on which the perjury is assigned) which requires more proof."

It is forcibly argued on behalf of the State that the general rule should not apply in the case at bar for the reason that in defendant's second statement the intentional falsity of the first was expressly acknowledged or confessed. That contention is supported by the case ofPeople v. Burden (1850) 9 Barb. (N.Y.) 467. In note to People v. McClintic, 193 Mich. 589, 160 N.W. 461, L.R.A. 1917C, 58, the annotator refers to People v. Burden as "the only American case holding contrary to the general rule." Criticizing the decision in that case, the Virginia Court, in Schwartz v. Commonwealth, supra, says:

"The distinction he seeks to establish is not recognized by any adjudicated case, or by any writer on criminal law. * * * Is it possible the principle is so reversed and is of so little value that the prisoner may be convicted of perjury upon the first merely because upon a second examination he admitted the first did not contain the truth? If this be so, the rule laid down that in case of two conflicting statements there can be no conviction unless there is corroborative evidence, is not of the slightest value."

After careful consideration, we are unable to reach the conclusion that the view for which the State contends is sufficiently well grounded in reason to justify its adoption by this Court.

We are of the opinion that the defendant's motion for a directed verdict should have been granted. The fact that the jury in the case of State v. Jones acquitted the accused in that case does not furnish the extrinsic and independent evidence required to prove the falsity of appellant's first statement before the Magistrate.

For the reasons stated, the judgment of the Circuit Court is reversed, and the cause remanded for the entry of a judgment of acquittal in accordance with rule 27.