
    JOYCE v. STATE.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 170.
    Decided Dec. 20, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    Judges of 9th District sitting by designation in place of Judges of Second District.
    629. INDICTMENT — 1162. Testimony— Where, in an indictment for perjury,, there is an allegation that the testimony was material to the cause in which the testimony was given, it is not necessary to set out the facts which show how the testimony was material.
    Error to Common Pleas.
    Judgment affirmed.
    Henry A. Williams, Columbus, and Gregg & Patton, Washington C. H., for Joyce.
    W. S. Paxson, Pros. Atty. and R. H. Maddox, Asst. Pros., Washington C. H., for State.
   PULL TEXT.

WASHBURN, PJ.

The record in this case discloses that Fred C. Joyce was indicted for the crime of perjury committed in a case in which Homer Hutson was being tried for forgery in the county of Payette.

Joyce was convicted and prosecutes proceedings in error.

It is claimed that the court erred in not quashing the indictment, because it contained no averment of facts showing that the testimony of Joyce was material to the cause in which said testimony was given.

The indictment contains the allegation that the testimony given by Joyce was material, but does not set forth facts showing how the same was material. On this point we hold that in an indictment for perjury, where there is an allegation that the testimony was material to the cause in which the testimony was given, it is not necessary to set out in the indictment such facts as will show how the testimony was material. (G. C. Sec. 11581; McCaffrey v. State, 105 OS. 508, at p. 509.)

Some complaint is also made in reference to the charge of the court; but without setting forth the details in reference thereto, we deem it sufficient to say that, as applied to the facts shown by the record in this case, we find no prejudicial error in the charge of the court.

It is also claimed that the court erred in the admission and rejection of certain evidence.

We have carefully examined the record, and find no error in that respect of any moment, whatever, except that the court permitted one Schumaker, who conspired with Joyce to commit perjury in said case, to testify as to certain statements made by one Badger, who was. also one of the conspirators, which statements were concerning Joyce’s connection with such conspiracy and were not made in the presence of Joyce, and related to,acts of Joyce before Schumaker joined in the conspiracy.

The state claimed, and offered evidence-tending to prove, that on the day before the beginning of the trial of Homer Hutson, his lawyer, D. C. Badger, made arrangements with Joyce and Schumaker to go with Badger in an automobile from Columbus to Washington Court House and he in attendance upon said' trial; that on the way there, Badger instructed Joyce and Schumaker what he wanted them to testify to in the case, and’ that they agreed to. do so, although what they were to testify to was known by all three of them to be absolutely false in every particular; that Joyce and Schumker were sworn as witnesses and testified as they agreed to do; that because of Schumaker’s later confession of said transactions, Badger committed suicide.

Schumaker was permitted to testify that when Badger asked him to go to Washington Court House and give false testimony in the Hutson case, Badger stated that Joyce had already agreed to do so and was to be paid $50' therefor.

This we held to be error. Where a conspiracy is prima facie proven, acts and declarations of one of the conspirators, made in carrying out the conspiracy, are competent evidence against other conspirators; but when this evidence was admitted, there was no evidence (outside of those declarations) that a conspiracy existed at the time said declarations were made; there was evidence that Schumaker-was himself entering into or contemplating entering into a conspiracy and that later he and Joyce did fully enter into it and carry it out, but outside of the declaration in question there was no evidence that Joyce was then connected with it, and such declarations were not competent to prove the conspiracy or connect Joyce therewith.

However, the evidence of Joyce’s later connection with and participation in said conspiracy is so overwhelming and compelling as to make it our duty to hold that said error-was not prejudicial and does not warrant a reversal of the judgment in this case.

Regardless of what Badger told Schumaker-Joyce was going to do, the evidence establishes-, to our full satisfaction that Joyce did in fact-ride with Badger and Schumaker in the automobile to Washington Court House, and did' agree to give evidence which he knew to be untrue, and that he carried out that agreement to the letter. A consideration of the whole record leaves us in no doubt whatever of the guilt of Joyce.

(Funk, J., and Pardee, J., concur.)  