State v. Leonard

72 S.E.2d 1 (1952)

236 N.C. 126

STATE v. LEONARD.

No. 723.

Supreme Court of North Carolina.

August 22, 1952.

*2 Atty. Gen. Harry McMullan, Asst. Atty. Gen. Ralph Moody, and Charles G. Powell, Jr., and Robert B. Broughton, Members of Staff, Raleigh, for the State.

Carl E. Gaddy, Jr., Raleigh and Robert S. Cahoon, Greensboro, for defendant-appellant.

VALENTINE, Justice.

The following question is determinative of this appeal: Is the defendant, who has been acquitted by a jury of the charge of malicious injury to property, entitled to plead former jeopardy or res judicata as a defense to a charge of perjury alleged to have been committed by him at the former trial?

By an examination of the record, the court below as a matter of law could determine that the charge of perjury and the charge of malicious injury to personal property were not the same, both in fact and in law. Therefore, it was unnecessary to submit to the jury an issue presenting this phase of the case. State v. Dills, 210 N.C. 178, 185 S.E. 677; State v. Midgett, 214 N.C. 107, 198 S.E. 613; State v. Davis, 223 N.C. 54, 25 S.E.2d 164; State v. Williams, 229 N.C. 415, 50 S.E.2d 4. In order for an acquittal to constitute a bar to a subsequent prosecution, the two crimes charged must be substantially identical. It is not sufficient that the two prosecutions should grow out of the same transaction, but they must be for the same offense. State v. Nash, 86 N.C. 650; State v. Taylor, 133 N.C. 755, 46 S.E. 5; State v. Hankins, 136 N.C. 621, 48 S.E. 593; State v. Davis, supra; State v. Lippard, 223 N.C. 167, 25 S.E.2d 594; State v. Williams, supra; State v. Hicks, 233 N.C. 511, 64 S.E.2d 871. The crimes of malicious injury to personal property and perjury as defined in State v. Smith, 230 N.C. 198, 52 S.E.2d 348, are two distinct offenses condemned by separate statutes, G.S. §§ 14-160 and 14-209.

It appears that the evidence offered at the perjury trial was abundantly sufficient to convict the defendant of the charge of malicious injury to personal property, but the bill of indictment also charged that the defendant's false testimony included a statement that he was not at Gate No. 1 between 3 and 3:30 P.M. on the day in question. This allegation was supported by proof adequate to sustain a conviction upon the charge of perjury.

While in some jurisdictions it is held differently, the modern trend and better view appear to be that an acquittal of one charged with a crime does not preclude the State from prosecuting a charge of perjury based upon testimony given by him at the trial, although a conviction of perjury would necessarily import a contradiction of *3 the verdict in the former case. Slayton v. Commonwealth, 185 Va. 371, 38 S.E.2d 485; 41 A.J., Perjury, sec. 53; 48 C.J., Perjury, sec. 98; 70 C.J.S., Perjury, § 26; McDaniel v. State, 13 Ala.App. 318, 69 So. 351; Jay v. State, 15 Ala.App. 255, 73 So. 137; Teague v. Commonwealth, 172 Ky. 665, 189 S.W. 908, L.R.A.1917B, 738; State v. Cary, 159 Ind. 504, 65 N.E. 527; Allen v. United States, 4 Cir., 194 F. 664, 39 L.R.A.,N.S., 385; State v. Vandemark, 77 Conn. 201, 58 A. 715.

The charge of perjury upon which defendant was convicted is not necessarily based upon the assumption that he was guilty of the charge of malicious injury to personal property. His acquittal upon that charge does not necessarily establish the fact that all material evidence given by him in that case was true. 147 A.L.R. 1000, 1001, and cases there cited. A verdict of acquittal is not a finding by the jury that the defendant's evidence was true. It is merely a declaration that the jury upon all the evidence is not satisfied beyond a reasonable doubt of defendant's guilt. Therefore, we cannot hold that a verdict of acquittal is equivalent to an affirmative finding that all of defendant's testimony at the former trial was true. Surely, the law should not permit a defendant by his own perjured testimony to secure a verdict in his favor, with immunity from a charge of perjury, while other witnesses testifying in his defense would be subject to conviction and punishment for false swearing. Such a doctrine would place a premium upon perjury and a penalty upon probity.

Public policy recognizes the principle of res judicata in criminal cases, but at the same time it requires that perjurers be brought to trial and punished. To hold that a person could go into a court of justice and by perjured testimony secure an acquittal and by that acquittal be shielded from a charge of perjury would be a dangerous doctrine. Slayton v. Commonwealth, supra; Jay v. State, supra. Yarbrough v. State, 79 Fla. 256, 83 So. 873.

In Brill's Cyclopedia Criminal Law, Vol. 2, Chap. 25, para. 859, it is said: "If a defendant in a criminal prosecution testifies falsely in his own behalf he may be convicted of perjury though he was acquitted of the offense there charged, at least when the testimony as to which perjury is charged is as to a collateral or subordinate matter, not to a mere denial of guilt, so that the conviction of perjury does not in effect amount to a direct contradiction of the judgment of acquittal in the former prosecution." This same principle is laid down in the following and many other cases: Youngblood v. United States, 8 Cir., 266 F. 795; Allen v. United States, supra; State v. Smith, 119 Minn. 107, 137 N.W. 295; People v. Niles, 300 I11. 458, 133 N.E. 252, 37 A.L.R. 1284.

In the instant case, the defendant could have been convicted under the perjury indictment by a showing that he was in fact at Gate No. 1 of the Erwin Mill Plant between 3 and 3:30 P.M. on April 20, 1951, and that this fact was in contradiction of his sworn testimony at the former trial. This proof alone would not have been sufficient to have convicted him on the charge of malicious injury to personal property.

The law and good conscience encourage witnesses and litigants to give true and accurate testimony and demand that they always tell "the truth, the whole truth, and nothing but the truth." It is also a policy of the law that swift and certain punishment be visited upon those who stoop to false swearing. Jury verdicts and judgments of the court should be fair and free from fraud. This can only be accomplished by strict enforcement of the laws condemning perjury. Niceties and refinements cannot be allowed to shield one who bears false witness, either for himself or against his neighbor. If a defendant can procure an acquittal and enjoy immunity from prosecution for false swearing as to testimony upon which a verdict of not guilty is based, the plan and purpose of the law would be defeated.

Both the brief of the State and that of the defendant are well prepared and show a great amount of research, but it appears that the cases throughout the country preponderate *4 in favor of the conclusion we have here reached.

We have carefully examined all exceptions in the record and find no error which justifies the awarding of a new trial.

No error.