State v. Clogston

The opinion of the court was delivered by

Most of the points urged against this indictment are' disposed of by the decision in the case of State v. John W. Smith, supra, with which this case was heard. The questions remaining relate to the allegation of materiality, considered in connection with the statement of testimony and the assignment of the perjury.

In the first count, the material question is alleged to have been, whether Fuller signed the paper, and the respondent is alleged to have testified that he saw him sign it. The assignment denies that the respondent saw Fuller sign the paper, but does not deny that Fuller signed it. It is urged that under the allegation of materiality the evidence was of no importance, and that it is also made immaterial by the assignment. We do not consider the count defective in this respect. The material question was, whether Fuller signed the paper. The respondent’s testimony that he saw him sign it was testimony that he did sign it. The respondent therefore gave testimony upon a material point. Then if the respondent did not see him sign it, he swore falsely upon a material point. Consequently, in assigning the perjury,’ it is sufficient to say that the respondent did not see Fuller sign the paper, without saying that Fuller did not in fact sign it.,

’ In the second count, the allegation of materiality and the assignment of perjury are the same as in the first count; but the statement of the testimony upon, the point in question, taken alone, is merely that Fuller signed the paper; and it is urged *220that inasmuch as the assignment is confined to a denial that the respondent saw Fuller sign the paper, the testimony as stated becomes immaterial. But we think this count is, in effect, the same as the first. It appears from the statement of the respondent’s testimony, as a whole, that whén he said Fuller signed the paper he was stating in its order one of several connected transactions which he claimed occurred in his presence. In saying that Fuller signed the paper he was stating what he claimed to have seen. A denial that he saw Fuller sign the paper is a sufficient contradiction of his testimony, and his testimony was directly to the point that is alleged to have been material.

Judgment that respondent take nothing by his_ exceptions, and judgment affirmed and cause remanded.