Opinion
No. 37764.
January 22, 1951.
1. Perjury — contradictory sworn statement — no proof as to which was false.
Where an accused had been indicted for perjury charged to have been committed by him as a witness in a murder trial, a conviction cannot be sustained on the sole evidence that he had made a materially contradictory affidavit before the trial, since this did not prove which of the statements was false, those in the affidavit or those given as a witness.
Headnote as approved by Roberds, P.J.
APPEAL from the circuit court of Jasper County; HOMER CURRIE, Judge.
J.L. Thompson, for appellant.
George H. Ethridge, Assistant Attorney General, for appellee.
The Attorney General by his assistant, after confessing error, and his reasons therefor, concluded as follows: "The State of Mississippi, in its constitution and legislative processes, has established the policy of the State with reference to crime and its punishment, and that it is not the policy of the State to seek unmerited convictions of persons, but to establish in criminal cases proof according to constitutional and legal provisions, and that it exacts of its prosecuting powers fair and just dealings in court between the State and those accused of crime. As I have on a number of previous occasions stated, it is my desire to be entirely fair and just in such cases and that the securities of liberty which have been established for a defendant be accorded him in all trials and that the State does not desire anything but a fair and just trial in an atmosphere of judicial calm. I have, therefore, frankly set out my conception of this case in a spirit of fairness both to the State and the defendant."
Tribble was convicted of perjury and sentenced to the state penitentiary for ten years. The perjury consisted, the State alleged, in false testimony given by Tribble as a witness in the case of the State against Stafford Agee charged with the murder of Sam Ellis. The falsity consisted in the testimony of Tribble "That he did not know who fired the shot that hit and killed Sam Ellis, that Sam Ellis had threatened to kill Stafford Agee"; that in truth he did know that Agee fired that shot and he also knew that Ellis had not threatened to kill Agee. The only proof of the falsity of the testimony of Tribble as given on the trial of the Agee case was contained in an affidavit made by Tribble after the shooting of Ellis and before the trial of Agee. In that extra judicium affidavit Tribble stated that Agee and Ellis were in an argument and a scuffle over a dollar and that Agee shot Ellis when Ellis had no weapon in his hand. (Hn 1) The affidavit and the testimony were, of course, contradictory. However, there is no proof whatever of the falsity of the testimony except the contradictory statements of the accused. That is not enough to establish perjury under the former holdings of this Court and the authorities generally. Section 2315, Miss. Code 1942; Horn v. State, 186 Miss. 455, 191 So. 282, 283; 41 Am. Jur. 37, Section 67. In the Horn case, the Court used this language "Ordinarily perjury must be proven by the testimony of two witnesses or of one witness and corroborating circumstances. Where the accused has made conflicting sworn statements, one witness to the falsity of the statement with which he is charged is sufficient", citing Hemphill v. State, 71 Miss. 877, 16 So. 261.
It was necessary for the State to prove the falsity of the testimony given as a witness. Not only was there no other witness who did that, but the conflicting statements of accused did not prove which statements were false, those in the affidavit or those given as a witness.
Reversed and appellant discharged.