Brown v. State

64 N.W. 749, 91 Wis. 245, 1895 Wisc. LEXIS 25

• Court: Wisconsin Supreme Court
• Decided: October 22, 1895
• Status: Published

Opinion

• Uewman, ¿T.

It is evident that the charge of having committed the crime of perjury by giving false testimony in the county court on the 7th day of October, 1892, and the charge of having committed the crime of perjury by giving false testimony in the circuit court on the 16th day of De-cernber, 1892, are charges of two separate and distinct crimes. The complaint charges one crime. The information charges another. There is nothing to show that it was intended by the information to charge the same crime as was charged by the complaint. The contrary intention is evident. It is clear that the plaintiff in error never had a preliminary examination, nor waived it, for the offense charged in the information. The plea in abatement should have been sustained.

The information is essentially bad. To charge the crime of perjury, the information must at least charge that the accused was sworn and testified. These facts must be alleged directly and positively, and not by way of inference or recital. They must be alleged with certainty, to a certain intent, in general. Bish. Crim. Proc. (4th ed.), §§ 325, 508, 554; State v. Divoll, 44 N. H. 140. This information does not allege that the accused was sworn at all, or that he testified at all. The only allegation relating to these facts is that, “ being lawfully required to depose the truth, on his oath legally administered, . . . and being required to testify, . . . did wilfully and corruptly commit the crime and offense of perjury, in this, to wit: That he was present,” etc. Surely to say “ being required to depose the truth, on his oath legally administered,” is not equivalent to saying that he “ was sworn and took his corporal oath,” as the old forms have it. Whart. Prec. Ind. 217-279; State v. Divoll, 44 N. H. 140. It is neither a direct nor a positive allegation that he was sworn. It may appear by uncertain inference that the pleader intended his phrase to stand in the place of such necessary allegation. Nor is it sufficient to say that he was required to testify. It should be alleged that he did testify. It is not alleged that the accused testified “ that he was present,” etc., or to any of the matters recited. It is no sufficient substitute for these necessary allegations to charge generally that he “ did commit wiiful and corrupt perjury.” The court should have arrested judgment.

By the Court.— The judgment is reversed, and the cause remanded for further proceedings according to law. The warden of the state prison will surrender the plaintiff in error to the sheriff of Waukesha county, who will hold him in custody until he shall be discharged or his custody changed by due course of law.