State v. Moore

Supreme Court of Louisiana

State v. Moore

36 So. 100, 111 La. 1006, 1904 La. LEXIS 587

CourtSupreme Court of Louisiana

DecidedFebruary 29, 1904

DocketNo. 15,137

StatusPublished

Cited by3 cases

This text of 36 So. 100 (State v. Moore) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Moore, 36 So. 100, 111 La. 1006, 1904 La. LEXIS 587 (La. 1904).

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Opinion

PROVOSTY, J:

Defendant was convicted of perjury, and sentenced to two years in the peniteiitiary, and he appeals.

The perjury is charged to have heen committed in a suit brought against defendant by his wife, wherein he tendered himself as a witness. On demurrer to the information defendant contended, and now contends, that, inasmuch as under, the law of Louisiana husband and wife are prohibited to testify for or against each other, his testimony assigned as perjury was null and void, and, in consequence, immaterial, and therefore lacking one of the essential elements of legal perjury—materiality.

We fail to see how defendant can say the testimony was immaterial, when, if it had been believed, his wife would have lost her suit by it. Suppose a wife is hanged on the false testimony of her husband, shall the perjurer be permitted to plead his incompetency as a witness, and say his testimony was immaterial? We imagine not. It is well settled that perjury may be predicated of false testimony though the witness was incompetent, even though by virtue of an express statute. Bishop, New Crim. Law, § 1019, par. 2; A. & E. Ency. of L. (2d Ed.) vol. 22, p. 691; Wharton, Crim. L. (10th Ed.) § 1280; Greenleaf, vol. 8, § 191; 8 Crim. Law Magazine, pp. 461, 464; McLain on Crim. L., vol. 2, § 865; Desty’s Am. Crim. L. § 750; Wharton’s Am. Crim. L. p. 653, § 4; Clark’s Crim. L. p. 334; Chamberlain v. People, 23 N. Y. 85, 80 Am. Dec. 255; People v. Bowe, 34 Hun, 528; State v. Molier, 12 N. C. 263; Sharp v. Wilhite, 21 Tenn. (2 Humph.) 434; Haley v. McPherson, 22 Tenn. 104; Pipes v. State, 26 Tex. App. 318-321, 9 S. W. 614; Rex v. Gibbons, 9 Cox, C. C. p. 105; Reg. v. Mullaney, 10 Cox, C. C. 97; Reg. v. Tichborne, London Law Times, May, 1873; Montgomery v. State, 10 Ohio, 220, 221; People v. Brown, 54 Mich. 15, 19 N. W. 571.

Defendant urges that the information does not sufficiently set forth that issue was joined in the suit wherein the perjury is charged to have been committed. The information does not apipear to us to be obnoxious to this objection; but, if it were, the irregularity would not be of so radical a nature as to justify the taking advantage of it for the first time in this court—that is to say, without its having been pleaded below. State v. Taylor, 37 La. Ann. 40; State v. Romano, Id. 98; State v. Johnson, 33 La. Ann. 889.

Judgment affirmed.

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PROVOSTY, J:

Defendant was convicted of perjury, and sentenced to two years in the peniteiitiary, and he appeals.

The perjury is charged to have heen committed in a suit brought against defendant by his wife, wherein he tendered himself as a witness. On demurrer to the information defendant contended, and now contends, that, inasmuch as under, the law of Louisiana husband and wife are prohibited to testify for or against each other, his testimony assigned as perjury was null and void, and, in consequence, immaterial, and therefore lacking one of the essential elements of legal perjury—materiality.

We fail to see how defendant can say the testimony was immaterial, when, if it had been believed, his wife would have lost her suit by it. Suppose a wife is hanged on the false testimony of her husband, shall the perjurer be permitted to plead his incompetency as a witness, and say his testimony was immaterial? We imagine not. It is well settled that perjury may be predicated of false testimony though the witness was incompetent, even though by virtue of an express statute. Bishop, New Crim. Law, § 1019, par. 2; A. & E. Ency. of L. (2d Ed.) vol. 22, p. 691; Wharton, Crim. L. (10th Ed.) § 1280; Greenleaf, vol. 8, § 191; 8 Crim. Law Magazine, pp. 461, 464; McLain on Crim. L., vol. 2, § 865; Desty’s Am. Crim. L. § 750; Wharton’s Am. Crim. L. p. 653, § 4; Clark’s Crim. L. p. 334; Chamberlain v. People, 23 N. Y. 85, 80 Am. Dec. 255; People v. Bowe, 34 Hun, 528; State v. Molier, 12 N. C. 263; Sharp v. Wilhite, 21 Tenn. (2 Humph.) 434; Haley v. McPherson, 22 Tenn. 104; Pipes v. State, 26 Tex. App. 318-321, 9 S. W. 614; Rex v. Gibbons, 9 Cox, C. C. p. 105; Reg. v. Mullaney, 10 Cox, C. C. 97; Reg. v. Tichborne, London Law Times, May, 1873; Montgomery v. State, 10 Ohio, 220, 221; People v. Brown, 54 Mich. 15, 19 N. W. 571.

Defendant urges that the information does not sufficiently set forth that issue was joined in the suit wherein the perjury is charged to have been committed. The information does not apipear to us to be obnoxious to this objection; but, if it were, the irregularity would not be of so radical a nature as to justify the taking advantage of it for the first time in this court—that is to say, without its having been pleaded below. State v. Taylor, 37 La. Ann. 40; State v. Romano, Id. 98; State v. Johnson, 33 La. Ann. 889.

Judgment affirmed.

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Bluebook (online)

36 So. 100, 111 La. 1006, 1904 La. LEXIS 587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-moore-la-1904.

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