Harper v. State
Harper v. State
Opinion of the Court
The Indictment charges that the defendant on his examination as a witness, in the case of the State v. Will Machen, Elijah Murphy, and another, then on trial for grand larceny, after having been duly sworn—
.“falsely swore that he spent the Saturday night before Easter Sunday, 1915-, at the home of Will Machen; that he got there about an hour before sundown and remained there all night, and until up in the day, some 8 or 9 o’clock on Easter Sunday morning before leaving; that the said Will Machen was at home that night and also the next morning, and if he left his_ home during the night witness did not know it; that Elijah Murphy was also at Will Machen’s during the early part of the night, and was also there next morning; that if Elijah Murphy left there any time during the night witness did not know it — the matter so sworn to being material, and the testimony of the said Solomon N. Harper being willfully and corruptly false.” .
The state adduced testimony tending to show that the larceny with which Machen and Murphy were charged and on trial at the time the alleged false testimony was given was committed on Saturday night before Easter Sunday, 1915, at Larkin’s ferry on the .Tennessee river in Jackson county, and in this connection examined as a witness Hamlin Caldwell, the official court reporter, who identified the notes of the testimony given by the defendant and taken on the *539 trial of Machen and Murphy, showing, among other things, that defendant was examined and testified as follows:
“Q. Do you remember the day it is alleged some stuff was stolen and taken over there at Langston? A. Whereabouts?. Q. Down at Larkin’s landing. A. I heard of some stuff being taken down there. Q. Do you remember the day it happened? A. I remember along, about the time. Q. I will ask you if on Saturday night, the day that was stolen, I will ask you where you stayed that night? A. In the evening I was down on Sauta Creek on my farm I have there, and Will Machen lived just below there a little, about 100 yards or so below my farm, and I went to Will Machen’s in the evening and stayed there. Q. Did you stay all night there? A. Yes, sir.”
The other testimony given by the defendant on that trial as shown by these notes corresponds substantially with the alleged false testimony, but appellant insists that the stenographer’s report was at variance with the averments of the indictment, in that it shows that the witness did not testify that the night he stayed at Machen’s “was Saturday night before Easter Sunday, 1915,” and that therefore the court committed reversible error in repeiving this testimony over the objection of the defendant, and in refusing to exclude it.
In addition to the evidence afforded by the stenographic report as to the facts testified to by the defendant, the state’s witnesses Gilbreath and Howard testified that they were present at the trial of Machen and others, and that defendant testified on that trial that on Saturday night before Easter Sunday, 1915, he stayed all night at Will Machen’s house, which was the night of the larceny.
The appellant’s insistence that there was a variance in the averments and proof, and that he was entitled to the affirmative charge, cannot be sustained.
The defendant’s objection to the record of the proceedings in the larceny case in which the alleged false testimony was given was properly overruled, and the effect of the evidence properly limited by the trial court. Jordan v. State, ante, p. 51, 74 South. 864.
There is no error in the record.
Affirmed.
Reference
- Full Case Name
- Harper v. State.
- Cited By
- 6 cases
- Status
- Published