McFarland v State

McFarland v State
1915 OK CR 233
153 P. 619
12 Okl.Cr. 201
Case Number: No. A-2127
Decided: 12/29/1915
Oklahoma Court of Criminal Appeals

PERJURY Allegation and Proof Variance.

Appeal from District Court, Garvin County; R. McMillan, District Judge.

T.S. McFarland, was convicted of perjury and appeals. Reversed.

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Blanton & Andrews and Carr & Fields, for plaintiff in error.

S.P. Freeling, Atty. Gen., for the State.

DOYLE, P.J. The plaintiff in error was convicted of perjury, and his punishment assessed at five years imprisonment in the penitentiary. From the judgment rendered upon the verdict he appeals.

The material charge in the information was that on a trial before the County Court of Garvin county, wherein the defendant was on trial charged with petit larceny, he was then and there duly sworn to testify as a witness in his own behalf,

"and while so testifying, said T.S. McFarland did wilfully, corruptly, feloniously, falsely and contrary to such oath, state to said Court, in substance, that one Ethel Davis, prior to said trial, had told him in the City of Lawton, Oklahoma, that said Ethel Davis had seen one Mrs. Lula Shiels, in the City of Lawton, Oklahoma, two or three days after the 11th day of November, 1912, open a letter and take therefrom a ten dollar bill; whereas, in truth, and in fact, the said Ethel Davis, prior to said trial had not told said T.S. McFarland at any place that said Ethel Davis, had, at any time, seen one, Mrs. Lula Shiels, in the City of Lawton, Oklahoma, open a letter and take therefrom a ten dollar bill; that said statement then and there made to said Court by said T.S. McFarland was then and there material to the question in issue in said case and was false, and said T.S. McFarland then and there knew the same to be false, against the peace and dignity of the State."

The attorney general has filed a confession of error to the effect that the information was insufficient to properly charge the crime of perjury, and that the evidence was insufficient to sustain the conviction.

It is manifest from an inspection of the record that the confession of error is well founded. The information alleged that the defendant as a witness in his own behalf did wilfully, corruptly, feloniously and falsely testify on his trial in said County Court. The proof was that the alleged perjury consisted in making the alleged statement in his affidavit in support of a

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