1036 CLUCK V. STAM. [192 • CLUCK V. STATE. Crim. 3994
Opinion delivered June 29, 1936. 1. PERJURY—INDICTMENT.—Under §§ 2590 and 3023, Crawford & Moses' Dig., it iS unnecessary, in: a prosecution for perjury, that the indictment should set forth the name of the officer who admin-. 4Stered the oath or recite the title ,of his office, since an allegation that the court had authority to administer the oath s is sufficient. 2. PERJURY—EvIDENCE.—Testimony of the circuit clerk that he knew defendant had testified in trial of E. C. charged with iteal-ing hogs, and the testimony of. the stenographer who reported that trial to the same effect is . sufficient to .show E. C. was tried on that charge, and the 'clerk's testimony that E. C. was tried at July, 1935, term of court was sufficient to show that the trial was had within three years of the date of the indictment of appellant. 3. CRIMINAL LANir--. CONTINuAiick.—It is not error to refuse a continuance on the account of the absence of a witness whose testi.: mony Would have been merely cumulative. 'Appeal froM CraWford Circuit Court ; J. 0. Kincan-non, Judge; affirmed. Rains & Rains, for appellant. Carl E. Bailey, Attorney General, and Guy E. Wil-liams, Assistant, for aPpellee. • SMITH,' J. Appellant was given a • sentence of one year in the penitentiary upon his trial under an indictment, which, omitting , its formal parts, reads as follows : "The . said George Clnck in the county and State aforesaid, on the 26th da,-3 . 7 of Noveniber, A. D., 1935; on his examination as witness for the defendant .in the trial of the case of State of Arkansas' v. Emmitt Cluck, Chargea with grand larceny, at the November, 1935, term of the Crawford Circuit • Court a.t Van' Buren, after haN s ing been duly sworn to tell the truth, the whole truth and nothing but the truth by Homer Mitchell, circnit 'clerk, a person duly authorized to administer' oaths, he, : the said George Cluck 'did and then and there Wilfully, Unlawfully and feloniously swore that he was present about the 7th day of July, 1935, at his home , near Whitewater in Craw-ford County, and Saw Elvin Davis sell Emmitt Cluck two large hogs and . four smaller hogs, same being the hogs Emmitt Cluck was on trial for stealing, that Elvin Davis was driving a gray 'and black mare, the ones he
ARK.] CLUCK V. STATE. 1037 had been driving previously to Davis ' wagon, that he saw Emmitt Cluck pay Elvin Davis sixteen dollars for said hogs, and that Entrnitt Cluck was at the time 19 years old, which said testimony was material in the trial of said cause, but was false and known to be false by the , said George Cluck at the time he So testified. The truth being that said hogs had been . previously stolen by Emmitt Cluck from Johnnie Barnes, Jimmie Fields, and _Jim Davis, that Elvin Davis did not sell hogs to George Cluck or Emmitt Cluck, in the presence of George Cluck on or about the 7th day of July, 1935, and that the said • Emm.itt Cluck was at the time 23 years old. All of said testimony given by the said George Cluck being false and untrue. and that the said George Cluck did: falsely, wilfully, corruptly, 'maliciously, unlawfully, and feloniously commit wilful and corrupt perjury; and against the peace and dignity of the . State of Arkansas.' • It will be observed that the indictment alleges that appellant was sworn as a witness by Homer Mitchell, circuit -clerk of the court in which the alleged false testimony was given, whereas testimony was admitted without objection or exception to the effect that appellant wa.s in fact . sworn by the Hon. J. 0. KincannOn,, the judge . presiding at the trial. The question whether the allegation of the name and' title of the officer Administering the oath is a ma, terial allegation, and, if so, whether there is a material variance between the allegation and the testimony presents the . principal and the most serious question raised on this appeal, which has been duly prosecuted to reverse the judgment of conviction. • It must he confessed that at common-law this was an eSsential allegation and this • difference between the allegation and the proOf would constitute a material variance, which Would require a reversal of the judgment. There are many cases to' this effect. The question here presented is whether this allegation is material under our statutes ; and, whether this difference between allegala et probata constitutes a material variance. The caSe of Loitdermilk v. State, 110 Ark. 549, 162 S. W. 569; points out some 'of the . relaxations in the
1;038 , cLUCTS V. $TATE. [192 technical strictness ,of , the common-law ih prosecutions for perjury: , It was there pointed out that an indictment. for perjury , would be .held sufficient when it, alleges that the perjnred testimony was material, but did not specify. how..it, was . material... Our -statute . modifying the com-• Mon-law so .provides. It was. there also held that. it -was. not necessary for an indictment . for perjury to .expressly state that the -conrt had jurisdiction of the, case in ,Which the .false . testimony was , given, but that an: allegation: that the court had . anthority to administer the:oath-was, sufficient. • .; !,. .; , . . • Our statute on- perjury provides : "ImindictmentS for 'perjury, it shall -be sufficient to• set forth-the substance of -the ;offense .charged,- :and by what •court or be-f ore- 'whom , the 'oath .or . affirmation was taken, 'averring. such court •or person-to .have'Competent. authority ,to minister 'the 'same,--logether , With the. -proper averments. to , falsify.:the matter wherein; the perjury is charged or assigned, without setting. forth any ,part of the: record, proceeding. or. proCess 'either • in law or equity,. or . . any, commission -or authority of the . conrt or. person before whom, the perjury -was committed, or the .form :of the, oath or..affirmation; or the. :manner: of administering the, same." Section 2590, Crawford. & :Moses' Digest. • • ,„ In the chapter on crimMal procedure; the following section appears an indictment for perjury,- it not:necessary to. , set forth; the pleadings, record or pro-. ceedings . with , which; the . oath " is connected; so that the. sub g ance. of the . controversy, . or ;matters . ..respeet to. which. the offense. twas . . committed,, is: properly- stated; . nor is it necessary to set forth: the.,commission or . au, thority of the court . or .person , before whom the oath alleged 'to be false was taken, so thatit be. stated in what cOiirt,or . before whom,it was taken, and , that the , coart or person was . anthorized to administer the oath.;' SeCtion • Crawford , & MoSeS' DigeSt... . . The. effect of. these sections is.:that the allegation; tha;t the court. had anthority to administer . the. oath -is sufficient, and that allegation. , sufficiently appears in the indictment copied herein. It would,.appear„Aprefore that the allegation thatappellant was sworn . "by Homer.
ARK.] CLUCK V. STATE: 1039 Mitchell, cirenit clerk'? was •unnecessafy as: i the . indictment' would otherwiSe have 'been . Sufficient. without naming the officer -Who • had: administered the : oath; and. Without recitation- of the title:of his office. ,• • • '‘..• iiithe ::chapter on :perjury, 48' CdrpuS juriS; .Page 875, a paragraph '§ 124 thereof has' . the' CaptiOn' ing Officer " : who:administered : the • oath.' It 'Was thefe said : • '"While such designatiori fna call for s ari a•Ve Ment of the name 'of Stich Officer,' it is' generally'held 'that where the offense : waS• cairn-lilted . a' jUdiciat rocedd, ink,- 'it is 'not . necessary : to name the Officer -before 'Whoin the false oath was' : taken; •• designating 'the 'COurt being' corisidered stifficierit; 'and where . f the 'court o'r:presidirig judicial officer •acts • : through •• anOther 'in adrniriistering the oath, :an . averment - that the- oath 'was• 'adininistered• by the-court or' by : •the presiding' judicial . ,offic'er.'isSuf-• ficient. " Numerous cases -are' : there cited 'in Support' of the • text quoted. • • - • - : , • • • • : If; malting the •officef,.. with •the title of • his office, tis riot essential, , what :is the: effect of. this unnecessary' al l legation and the failure to prove' it*? : : Araong the nutherouS cases •which An8W011 thiS•ques2 tion; that'of West v H.'S.; 169 0: . 0. A.' 429,. 258 Fed: '418; is • •direetly in point. • • 'The : authority . ' of• : this' ca's6 haneed • by . the fact . that the . dedisiori thereof turned UPon the-constructien of : Federal statates in ma0 reSpects identical With,' arid' in nd . material respect different •frbin; mil' • Own. Statutes• . aPplicable 'tO the . gneStion Under cori'-! SideratiOn. The' iiidiettherit hr that caSealleged that' tho acensed' had • beeri Swörn bY-hi •H •orior; Saler, the presiding judge, whereas the testime0 'Wa g to' 'the effect that the oath 'had been adininistered by-a.deputy Clerk:of the court. ' , The : indictirient 'Was based ; upon -a: Federal statute . reading as-folloWs :. -"It 'shall be snffi, cient to • set' forth the subStariCe . of the OffenSe 'charged upbri the 'defendant, arid iby what' Court,' an ! d : before whoin the' • oath •was taken; • 'averfing such. ' 'court 'oi Tier -min tO haVe competent atithOritY AO % adniinistef the :same, *•:.•* and without setting forth the' commiksion Or authöritY of 'the: court' 'or !person before whom: the perjUrY i was COmmitted."" : 1 : ,„.
1.040 CLUCK V. STATE. [192 • A comparison of this statute with § 2590 of our stat: utes, set .out above, shows their substantial identity. Circuit Judge Knappen, for the circuit court of appeals, there said that: "The' indictment was suffi, cient in form and the deputy clerk had ,full authority to administer the; oath in the court's presence. . It: was not necessary to allege the name of the cleric ;who administered .the oath,or that of the judge who ,took (Citing cases.) The court said:: "Apparently . the word 'and,' italicized above, means or'.", It is not necessary to invoke this construction of our statute for it will be observed thatour statute employs,the disjunctive "or" rather than the conjunctive conjunction "and." The court said: "If there is merit in the objection that the evidence of the administering: of the oath was insuffi-. cient, it can only be because of a fatal variance between the indictment, and the,proof." • In holding there was no such variance, : the court said that, assuming the :intention was to. charge that Judge SATER personally administered the oath, the vari-: ance was not fatal.' It was there said: "Were there reason to believe that plaintiff :in. error .was misled to his prejudice, in preparation for , defense or. otherwise; by an allegation, express' pr, implied; however :unnecessarily made, that Judge SATER personally adMinistered: the oath, the case would be different, • ," but that no such showing was made and that the fyame. of ,the indictment was such as to preclude all possibility of a second prose, cution for the same offense. Unquestionably .there be no second prosecution here for the offense , charged in the indictment: , . The court of appeals assigned as its reason for hold-. ing that the variance was 'not fatal the provisions of § 1691 of the Compiled: Statutes, reading as follows: "No indictment * * *: shall: be:deemed insufficient, nor. shall the trial, judgment,: or other, proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant." We have the same statute.. Section 3014, Crawford & Moses' Digest, reads as follows : "No indictment is.
CLUCK V. STATE. 1041 insufficient, nor, can the trial, jndgment or Other proceedings thereon be affected by any defect which does, not tend to the prejudice of the. substantial rights of the defendant. on the . merits." • The court ConCluded . its reyiew of the effect 'of these tWo sections of the Federal statuteS, substantially identical with our Own; saying : "While neither of these sections attempts to sanction a violatiOn • . ef substantial rights or to disregard preiudice, yet an iinmaterial and nonprejudicial VaHanee between. allegation and prOof not cause for• reversal." Citint amOng other case§, 'that of Matthews v.:U.' 5;, , 161 U.. S. 500, 40 L. 'Ed. 786, 1-6- S. -Ct. 640. 'See . alSo 'Cain v: State, 73 S. E. 623; Wheie headhote prepared by . the court of appeals of Georgia, reads ".When, in the Course of a judicial investigatio a n; an attorney :at : law, by the authority' or permissioh the- cOuft, adthinisterS the oath to a 'W-it-neSS; he . does sO in behalrOf 'the 'cotirt.' Consequently may" properly'be alleged, in an indictment assigning perjury' Upon'the testiinOnY of Snell a . witneSs deliVered in' a cOurt . of inquiry, • that , the' . oath litas administered by the presidirii magistrate.' i -• headnote in the .ease of Stute, y. ., Caywood, 96 Ia.. 367, 65 . 1\1. W. 385, reads . as ,."Held, that the. judge, sitting as a court has . power .to administer oath's, and an , indictment charging that, , defendant, during a trial, was sworn by. 'the court,' is suStained by evidence that the. , oath. was administered either„by the presiding judge , or, by the . elerk under, , his direction." A headnote in the case of State v. Pratt, -21 S. Dal:: 305, 112 N-: W. 152, reads as . follows .` q n .a proecution fo'r perjury, .where.the information alleges that the . de-, fendant was . sworn by .the .court at the . tithe of the -alleged perjury, .and -the evidence shOws that the oath was administered. by the duly. elected, 'qualified . and' acting clerk in *open..court, in the. preSence of the presiding judge; . there was'not . a fatal variance." See also Stracler v. Commonwealth, 240 :Ky:'559, 42 S. W. (2d)-736; Coln-mon : wealth v.'Kane, 92 Ky. 457, 18 S. W. 7 ; Ruff v. State, 17 Ga. App.-337. , 86 S. E. 784; . Smith v. PeOple, 32 ' Ca°.
1042 CLUCK V. STATE: [192 251, 75 . Pac.. 914 ; People' AT: . Nolte, 44 . 1\1"; Y. S., 443 ; State v. „Sr peneer; .6 Oregon 152.; . • ,. ; In the case of. Cutter . v. TeiTitory, • 8. Okla. 101, 56 -Pac. 861, an indictment for perjury' alleged that the - oath , had , been administered by . ;the . court, . whereas the testimony . showed its . administration • by , the ,clerk of the . court. . The :• Supreme, court, of,. Oklahoma said A,.district court consists .of ,a . judge, clerk, and other officers. ,, A clerk is as .„ necessary . to . a . properly: constituted district , court 'as a : judge, and .it :has been fre,. quently_held that what the: clerk -does in .open court,• in the . presence of . the. judge,. is the act . of the court . At cominonrlaw . it wa.s -.necessary to ll e . a ge the m .n e a and ,of-, fiee.of :file, person aa i M n in g i ste h r e oath, and a . yarianeo in this . .respect was fatal. „ 2 Whart.,Cr. LaW, 1287.,This rpleiti1l . adhered . io in many of. the 8tates... 13ui; it has heen held, .under! Podes . ,similar to , ours, that , it silt-. cient . to . allege, the ;taking , of . an Oath. in the court, or fore , the , court,,and,proof of taking, the ,. oath .. before any officer: O . the coUrt, n ihe, presence o ,f tbe.,,court,. sustain , . an allegation of . being sworn , by : Or ,before the court. (Citink authorities.) Swearing before :a :clerk in open court is equivalent to swearing before the ,court."- '''• . • The •; SUPreme 'Conri 'Of Oklahoma,. after helding as appearS from the'abOVe quotation that . an allegation •aS to the particiilar 'officer 'administering 'the oath wag neCesSarY and-that, in • the abSeriCe, of SuCh an allegatiOn POO of administration of the:oath by either the....jiidge. or the Clerk of the . conrt WOuld have sUffieed,' ProCeeded to say that the 'unneCeSsary allegatiOn haVing been Made,. it was necessary to prove 'it. : . . • This, loweVer, is' not eur -practice in regard to lin; material allegations which are treated' as surplusage. In the case , of Jenks. v. .State, .63 •Ark. 312, S. W.', 361; the appellant, a convict, had been cenVicted of escaping' froin the :State penitentiary. The• . testiinony . _ . showed. that , he had effected..his .. escape in the • county in which. the penitentiary Was located, 'but not from •the peniten-• tiary, .as charged: in. the.indictment. 'In holding. this' variance immaterial,- Justice RIDDICK- said.: • ,"It is a, violation .of the statute . for a: convict to escape' at any.
ARK.] CLUCK V. STATE. 1043 place, whether from the penitentiary or not•.• To . determine the Venue and jurisdiction .over the •offense, it. was: necessary to allege and prove the, county which. the• crime: was committed, and that was done, in this :case: Beyond this,' the reference to the penitentiary .or.: place. from •which the convict escaped •waS wholly .unnecesary and ;immaterial; and may therefore .be rejected as• sur. plusage. It is hot necessary • to show • that. such 'an ,of-, fense ,was committed in the .place alleged,. if .it . be: shown to .have .been committed •in• some other place in •the same; eounty.. • : : ' • . We therefore hold that the • variance is.•immateriaL ...It is insisted' that the testirnony does not shOW.that the : allegation that ElVin Davis was' driving a gray .and black mare' was 'false, but it waS affirmativelf shown' that! Davis' did have, and drove,'a black and gray Mare.' ThiS;' hoWever, was not the testimony traversed as being' false: The testimony traversed as being false was that appel-i laht saW Elvin Davis sell the defendant Emmit certain • 'hogs, Whereas 'the hogs ' had been • previOn§lY: stolen by Cluck from certain parties named, and that Davis did not sell : the' hogs tO Cluck:' • . . It is insisted that the' teStithony does hot shoW that Einmitt Cluck waS ever tried for the larceny Of the hogs . . nor does it shOW . the Court in 'which the trial occurred.i The- clerk of the* conit, after teStifying, that he was , . 6.!i clerk of the Crawford 'Circuit Court, and had ' attended the' November, 1935, term of the court 'in that , capdcitY,, stated'that fie kneW of. his *O*n knoWledge that appellant . had testified in the' trial of Eriithitt *Cluck.' The 'Stenographer Who had'rePorted that . trial read* *froth hiS note's' the. testinionY of appellant 'given 'at the trial of Emmitt• Chick hpOn the charge of stealing , the hegs. • . The . objection that the testiMony . doe's ,.not when the alleged false teStimony was given is' answered. by sayihg'that the* clerk testified that Eminitt Clnck Was. tried at the July,' 1935, terin, Of cOurf wiiieh Was: within three years 'of the date of ;the indictment. * . ,The only other assigmnent of error which we, gard as of sufficient impertance to require discussion
relates to„the . refusal of ,the court to grant a ,cOhtinuance
1044 CLUCK V. STATE. [192 on account of the absence of John Atwell, who was unable to attend court on account of illness and who if present would have testified "that Elvin Davis came to his (Atwell's) house hunting hogs and that he asked him what kind of hogs he was looking for and he testified that just any kind of hogs : that he could find; he ,would also testify that Elvin Davis' charaCter is bad and• that he would not .believe him on . oath." • A brother of the:absent witness testified that he was, present .when the alleged • remark about the hogs was made, and that it was made by Bill Davis, a brether of Elvin, in Elvin's presence. . It is not shown .of what value ,it would have been to appellant to make it appear that the man appellant had sworn had sold the hogs, to Cluck was a .man who had stated.that.he did not .care . whose hogs he; found ex-, cept by way of impeachment.of Elvin Davis as a witness. It would certainly, not have, tended to show the good' faith of, the alleged purchase from Elvin Davis and was merely cumulative of ,other evidence tending to impeach Elvin Davis. . . When objection was, made.to the proof of the statement of Elvin - Davis by the witness.Roland Atwell; appellant's counsel said :, "It is not for the : purpose' of impeaching Davis, The purpose is for showing that he was looking f or these hogs." The , „recited . testimony of the absent witness was not competent or of value, for any . purPose. except that of impeaching Davis. :There was therefore , no error . in refusiiig , a continuance on account of the : absence of . a witness whose testimony woul4, have been .of no -Value except for the : purpose of impeachment, and 'Or this purpose it would , have been cumulative Of other ,testimony tending to impeach Elvin. Davis offered by api3ellant. It has been.uniformly.held that . it is not error to refuse: a continuance* On . account of the absence of a witness, whose testimony wOuld have been merely cumulative. 'Jcinnes v. State, 161 Ark. 389, 256 S. W. 372: Upon a consideration of the whole case we think no error appears, and the judgment must be' affirMed. 'It is so ordered. JOHNSON, C. J.; BUTLER, and TAKER; ',W.; dissent:
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.