17 Ky.L.Rptr. 580
Court of Appeals of Kentucky.
Sept. 25, 1895.
ACTION: Affirmed.

Appeal from circuit court, Knox county.
"Not to be officially reported."
Thomas Barton was convicted of false swearing, and appeals.

The accused was found guilty of false swearing. Numerous matters are suggested as reasons for a reversal of the judgment, and we will not state them except as they appear, in answer thereto, in this opinion.

There was testimony introduced tending to establish the charge against the accused, and the court did not err in overruling the motion of the accused to instruct the jury to find him not guilty. We cannot say the evidence was insufficient to sustain the verdict of the jury. The testimony of T. G. Mitchell, that the accused was arrested, under a warrant sworn out by him, on the charge of stealing goods from his storehouse, was relevant. It is claimed the false swearing was done by the accused while he was a witness in his own behalf on the trial on the warrant which Mitchell had procured against him. This testimony was simply an inducement to that which was to follow, and the court did not err in admitting it.

While the court may have erred in not excluding the statement which Mitchell made, that the reason the accused was not indicted for stealing his goods was because one of the material witnesses was kept from going before the grand jury, this statement did not prejudice the substantial rights of the accused, and is not a reversible error.

It is contended that the judgment should be reversed because the verdict of the jury is not sufficient. It reads as follows: "We, the jury, agree and find the defendant guilty, and fix the punishment at confinement in the penitentiary of the state for a period of two years." It is argued that the verdict is not sufficient because it does not state that the jury found him guilty "as charged in indictment." We do not think there is any merit in this contention. Under section 257 of the Criminal Code of Practice, all that it is necessary for the jury to say, on the subject of the guilt of the accused, when his plea is not guilty, is "Guilty," or "Not guilty," as they may agree. When the verdict is "Guilty," if there be degrees of the offense, then it should fix the degree, and the punishment in cases in which the jury is required to fix the degree of punishment. There is but a single offense charged in the indictment, and there are no degrees of that offense. The accused was charged in the indictment with false swearing. The instructions of the court submitted to the jury the question of his guilt or innocence of the charge made in the indictment. The verdict is responsive to the charge and to the question submitted. The verdict fixes the punishment. In Blair v. Com. (Ky.) 20 S. W. 434, it appears that the trial court corrected the verdict of the jury, in the presence of the jury, so as to read as follows: "We, the jury, find S. F. Blair guilty, and fix the punishment at three years in the penitentiary." This court held that the court had the right to make the correction, and, without discussing the question as to the necessity of the verdict containing the words "as charged in the indictment," sustained the verdict as corrected by the court. We are of opinion that the verdict in this case is sufficient.

The accused was introduced as a witness. He offered no testimony on the subject of character. The court permitted the commonwealth to prove by several witnesses that the general moral character of the accused was bad. It is insisted that this was an error. In this view we do not concur. When the accused testified for himself, he placed himself in the exact position of any other witness, and his testimony was subject to impeachment in the same way as that of any other witness who may have testified in the case. This question was considered by the court, and elaborately discussed, and the right to thus impeach the testimony of the accused is no longer an open question; and, as the reasons of the court are so fully given in that case, it would be a useless expenditure of time to repeat them. As the testimony of a witness can be impeached by proving that his general moral character is bad, it is likewise competent to prove that the general moral character of the accused is bad, although he may not have introduced testimony as to his character.

The instructions which the court gave the jury were as favorable as he had the right to ask. Judgment affirmed.

Ky.App. 1895.


32 S.W. 171, 17 Ky.L.Rptr. 580

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