
    John Miller, Plaintiff in Error, vs. The State of Florida, Defendant in Error.
    1. The act of 1870, entitled “ An act concerning testimony,” gives to the accused in all criminal prosecutions the right to make a statement, under oath, before the jury, of the matter of his or her defense, and does not make the accused a witness in the case, or subject him to the rules governing in the examination of witnesses.
    3. Such statement, when so made, is for the jury alone, and to be taken by them into consideration in connection with all the evidence of the case, and to be allowed such weight, and such only, as they, in their judgment, may see fit to give to it. •
    3. It is not sufficient, in a case of perjury, for the court to charge the jury “ that if they believed, from the testimony, that the accused took the oath, and that it was false, he was guilty.” The court should charge that they must find that the accused took a wilfully false oath, and that it must be so taken in relation to matter material (o the issue, in order to make him subject to the punishment provided for perjury.
    Writ of error from tbe Circuit Court of Madison county.
    
      JE. J. Vann for Appellant.
    I. Tbe court below erred in refusing to grant to tbe accused “ tbe right of making a statement of tbe matter of his defense, under oath, before tbe jury,” unless be was put upon tbe stand as a witness, subject to be cross-examined, &c., as a witness. Laws of Fla. 1866, Chap. 1473, No. 10, Sec. 4.
    Intention of the law-maker may be gathered from tbe context. In tbe first three sections of said act, parties to civil actions who are allowed to testify are mentioned.and described as witnesses. This qualification is not used in section 4, and tbe idea conveyed by it is, by a proper construction of said section, they are excluded.
    .This view is not in conflict with 13 Fla. 680 — Barber vs. State.
    Tbe discretion given to tbe court below to permit tbe party accused to make said “ statement ” was repealed by act in 1870, and the “ right ” to make it guaranteed without qualification. Laws 1870, Chap. 1816, No. 2.
    The reason and policy of the law forbids:
    1. Because the accused could not be made amenable as a witness — for instance, for contempt for not answering, &c., impracticable, &c.
    2. Because by an expert cross-examination the accused might be entrapped into a confession, the fear of which, or ' a refusal to answer, might render this “ right ” a practical nullity.
    3. Because intended as an ex pmte “ statement ” of such ás, and as much as, he may wish to “ state ” as “ the matter of his defense.”
    I. Because no detriment to the State can result, as it is the exclusive right and province of the jury to believe the “ statement ” in whole, or in part, or not, as they may see proper.
    II. The court .erred in refusing, after the accused was sworn as a witness, under the ruling of the court, to allow him to testify to the matter or facts as made known, offered and px*oposed (in substance) to the court.
    Because said testimony or “ statement ” was relevant, pertinent and propex’, in that it showed, or intended to show, the intent, to-wit: that the oath alleged to be false was xxot willfully, knowingly and cox’rxxptly false, the intent being the gist of the offense, and as the “ prisoner must be judged as though the facts wex-e as honestly believed to be true.” 1 Bish. Cr. Law, §§ 287, 288; 2 Ib. 1006-7-8; 2 Bish. Cr. Pro. §§ 811 to 850.
    As to ignorance of law, of fact, and both of law and fact, vide 1 Bish. Cr. Law, §§ 291 to 312, 320 and 315.
    III. The court ex'red in charging the jux-y that if they be- _ lieved from the evidence that the accused took the oath, and that it was false, the prisoner “ is guilty.” Because the court should have charged that, if they believed from the evidence that the accused took the oath, and that it was Jmowingly, willfully and corruptly false, they might find him guilty. 2 Bish. Cr. Law, 1006-7-8; 2 Bish. Cr. Pro. 841 to 880; Statute in regard to and definition of perjury, Bush. Dig. p. — ; 3 McLean, 583; 4 Ib. 113; 3 Ala. 602; and supra as to intent.
    IV. The court erred in charging the jury that they should not consider anything the prisoner said. 13 Fla. 680.
    V. The court erred in charging the jury that ignorance was no excuse, and that if the accused wished to avail himself of such a defense, he should have plead “ insanity or idiocy,” and that they could not consider it without commit, ting perjury. 1 Bish. Cr. Law, 394 to 412.
    VI. The court erred in charging the jury as follows: “You have nothing to do with the excuse-on account of ignorance — that is a matter for the court — he should have ■plead it, &c. Authorities cited supra.
    
    VII. The court erred in charging the jury that the accused “ understood what the court asked him — was he any relation .to Jerry Grimes.” The court cannot express an opinion as to the conclusiveness, or vice versa, of the testimony — that is for the jury alone. Fla. Reports and Laws, passim. '
    
    VIII. The court erred in refusing to grant the accused a new trial. Vide charge of the court; exceptions taken at tqial; motion for a new trial; and authorities cited above.
    
      Mr. Attorney-General W. A. Oocke for the State.
    1. Moved to strike from the docket, because the writ of error and supersedeas were obtained after the criminal was confined in the penitentiary. The writ of error and supersedeas could not reach the warden of the penitentiary—
    1. ' Because not addressed to him.
    2. . Because the bonds could not be given on which the writ of error and supersedeas were granted. Vide act of Legislature in relation to writs of error and supersedeas. Bush, LVII. p. 278; Bouv. title, error; writ of error addressed to the court. See Bouv. title, supersedeas. Wharton’s Criminal Law, 3049.
    
      Bill of Exceptions.
    
    Grounds taken on the bill of exceptions, insufficient.
    1. That the accused should be placed on the stand as a witness. If he made his statement, why should he not be cross-examined ? The law does not forbid it. See statute, Jan. 16, 1866.
    2. The second exception — no grounds for setting aside the verdict of the jury.
    Perjury is defined by our statute; this is a statutory offense, not one at common law. See Perjury at Common Law; Wharton’s American Criminal Law, Vol. 3, §§ 2198 and 2,199.
    There is a difference in the statutory offense of perjury. Vide act of 1868, Laws of Florida, Chap. 6, p. 89, Sec. 2.
    It is not, as contended in the bill of exceptions, necessary that the court should have instructed the jury that the oath was “ knowingly, wilfully and corruptly false.” That was not even required by the common law.
    The indictment charges the accused with “ wilfully ’’.committing perjury. This is the only term used in the statute. This is sufficient evidence in the English and American practice. See Bouv. Law Dic. title, perjury, and the large number of cases cited.
    The third ground of exception is, that the accused was ignorant that he was committing perjwry. This is no excuse. Vide Wharton’s American Criminal Law, 6 Ed. § 2,201, and eases cited on same page, notes k. n. o.
    The court had the right to refuse to permit the statement to go to the jury after it was made. The discretionary power had not departed from the court to refuse the statement of the witness even after it had been made. Vide Barber vs. the State of Florida, XIII Fla., Opinion of the Court, p. 680, citing the act of January 16, 1866, (not of 1865, as mentioned in the opinion.)
    
      The law in Bush is incorrectly copied; a part is left out.
    It is also a mistake of Mr. Bush in stating that the act is repealed. Act of January 16, 1866.
    
      Statement of the Case.
    
    On November 24, 1875, John Miller, the plaintiff in error, was duly arraigned and- tried in the Circuit Court of the 3d Judicial District, held in and for Madison county, on an indictment for perjury.
    The indictment charged that on the 20th day of October, .1874, at a Circuit Court held at the court-house in the county of Madison, one Jerry Grimes was being tried upon an indictment for feloniously procuring a felony to be committed by one Isaiah Phillips, charged with the crime of forgery. That this John Miller was called and appeared as a juror ; that he was challenged and sworn by the Judge touching his qualifications as such juror. That it became a material question and subject of inquiry whether the. said John Miller was related to the accused, Jerry Grimes. That the said John Miller, intending to deceive the said court, unlawfully, falsely, knowingly, willfully and corruptly, did swear that he was not related to the said Jerry Grimes, when, in fact, at that' time, he was the father-in-law of the said Jerry Grimes. That he so swore for the purpose of causing the said Jerry Grimes to be wrongfully acquitted on the said indictment, and for no other purpose whatever. That said John Miller knowingly, willfully and corruptly did commit willful and corrupt perjury.
    On the trial of the cause, the counsel for the accused took certain exceptions to the rulings of the court, which, having been duly settled and signed by the Circuit Judge, appear in the return to the writ of error in the following words;
    I. On the trial of the case, after the State had rested the defendant, the party accused, claimed and insisted' upon the1 right of making, a statement to the jury, under oath, of the matter of his defénse. Whereupon, the court refused to allow Kim to do so, unless Ke was put up as a witness, subject to cross-examination.
    To which ruling of the court the said accused excepted.
    II. The court, among,other things, charged the jury that if they believed from the testimony that the accused took the oath, and that it was false, the accused was guilty.
    To which the accused excepted on the ground that the court should have charged that, if the accused- took the oath, and it was knowingly, willfully and. corruptly false, they might find a verdict of guilty.
    III. The accused offered to make a statement of the matter, of his defense, on oath,;before the jury, which defense was (in substance) as, stated,to the court: “That it was true that Jerry Grimes married the daughter of the accused, but that soon after their marriage said Grimes ill-treated his daughter and abandoned her. That he had for several years been compelled to . support his (laughter and child. That Jerry Grimes had gone off, and he, did hot consider he was anything to him or his family. That when the accused was asked oh his vtivr dwe whether or not he was related to the prisoner "at the bar, Jerry Grimes, he answered he was not, being1 át the time of the taking the said, oath under the iona fide impression and conviction that, as lie, the said Jerry Grimes, had left his'.wife, &c., as aforesaid; he really was not related to, the accused, Jerry Grimes. That he made oath to what he ignorantly supposed to be time, and thus that lie did'not willfully- and corruptly make said oath.”
    The court’'refused' to allow the accused to make such a defense;1 either as a statement'or otherwise, on the ground, as the court-Said, of its irrelevancy, and that if the same vr'as trtíé it-would bé no défénse, as ignorance of law was no excuse. " '" "’ ......, “ ,
    To ;tv'hi6h the accused excepted.
    TKé’jury11 found' the, prisoner' guilty, of perjury. The ■ counsel for “the "accused moved for a new trial upon the érrdís So 'alleged, and also upon the further grounds that the verdict of the jury was contrary to law, and because the jury was mislead by the charge of the court.
    The motion for new trial was denied, and the court proceeded to senténce the prisoner to State prison for the term of ten years. '
    The accused' brings the cause into this court by writ of error.
   Van VALKENBURGH, J.,

delivered the opinion of the court.

On the trial of this case, and after the State had rested, the counsel for the, accused offered the statement of the prisoner, under oath, as to the matter of his defense, which the court refused to allow, unless he was put upon the stand as a witness, subject to cross-examination.

The statute of 1865, Chapter 1172; Section é, provides that in all criminal prosecutions, the party accused shall have the right of making a statement of the matters of his or her defense, under oath, before the jury, when, in the opinion of the court, the ends of justice shall so require.”

Under this act, it was in the discretion of the court to permit the accused to make such a statement, depending entirely upon the question ás to whether the “ ends of justice shall, so require.”

' The making of such a statement under oath does not necessarily constitute the accused a witness, nor does it subject him to the rules applicable to witnesses, making him liable to cross-examination. (It is simply a presentation verbally, in his own language and manner, of the'matters .pertaining to his defense, of such facts and circumstances surrounding the ease as will go to excuse the offense and negative the idea of willful or corrupt intent. It is for the jury alone, and is to be taken into consideration by them, in connection' with all of the evidence in the case, and to be allowed such weight, and such only, as they, in their judgment, may see fit to give it.

In the case of Barber vs. the. State, (13 Fla. 681,).Where-the error alleged was, that “ the court charged the; jury that ;the statement, of. the .defendant is mot. evidence, and. that they could not take such statement into consideration':as;evidencé,”’the court says : “There was spine purpose,..to be Subserved more, than, the mere amusement,Of the jury. in; allowing the statement to be made. It is the jury, alone, who • are entitled to: consider the statement, and if it.be remarked upon at .ally it should.-be to suggest, to. the- jury, in effect, that they are-to. attach to it such importance,’■ in. view' of the nature'of the offense charged, and'of the: testimony, before •them, as in their good judgment it is , entitled to-., It is for .their consideration alono,, and they may disregard it entirely.” And, again ; “ The defendant is entitled,'when.-permitted t.o make the statement; to the benefit or disadvantage of 'such -impression' as' he- may be able to.make'upon the judgment of the jury.” ' 'v.ii ■■ ■

This .statute, however, of 1865, was repealed by Chapter 1816 of the laws of 1870. This is., an act-entitled •“ An act ■concerning’testimony,” embodied in a. -single- section, and ■reads.as follows : “ In the courtsmf -Florida,-there shall be no exclusion of any witness in.á civil action because he is a party to or interested ¡in the, issue tried'. In- all the criminal prosecutions,, the-party accused shall.; have the right of making a statement to the.jury, under oath, of the matter of his or .her defense.”-r- i’¡ A fi ¡-'Aw; b f.-

This takes from, the court the discretion .-allowed by the statute of -1865, and the unqualified right of-the: accused to ¡make' such a statement, under - oath,. to. th.er-ju-ry; is. .established, -, by- law. - : -. ■; •;. wh -: AV -

■ - Had it been the intention of the Legislature -to provide that the accused should make himself a,witness,,subject :to ;the rules, controlling in the examination of . witnesses,■¡there would have been no necessity, for the second • paragraph in the section where, this - provision is found;, A slight change of the-first portion of the-section woulddi'ave,. covered every case of civil action or criminal prosecution.

n.c.llhb.-iedofld’igibhn&tbf'erro'r is : ■' “ The court, artiong Other things, bharged-dhe- jury that’ if:, they ■bélíevedy'fro'm the testimony, "that -the accused -took the oath,-'and-that if ■wa§'''fa.lsé;~theácbiísed'tvás:gtúlty':-,: ? • ■< ' hr s v;v *

Perjui-y-is defined - in' the elementary"-books tó -be-the-taking Of a¿-Willfully- false oath by One1 who, being lawfully -sWórn !'by a’ Competent’ court to depose the'-truth in'arty judicial- proceeding,, swears absolutely-: and- falsely, irt ’ a matter ihateriul to the point' im-questiori, Whether he be believed. Or -hot. Orir statute pin accordance1 Witfr’thie definition Of péyjüry, in an “ act to provide for the punishment of crimé-artd ' proceedings;in- criminal cases,”’ passed in-1868,hays “Whoever; beinga^lthor3zed■or■u'cqui-red'.by,law to’-take'-an oath»or affirmation,'willfully swears or affirms, falsely,' in regard:-to 'any onateriál'orvatteror'Úimg respéetirig wdiieh such Oatli or affirmation is- authorized' or required,cshall be deemed guilty of perjury,” &c. \ m’ i, ''W.

"It will-be seen that both at eoinmon dawand by'statute in--this State,'the rule is the same, "or,: in'.-Other-words; that'the 'eOmmob'law definition of tlie crime -qfpei'juryis made a portion of the statutes, and that the okth must'-not-'only-bo false, but'that'it-must be^ii^Ziyiail'segan'd-to’ matter’’ material to the -issu'C. It- is. neees’sary so to charge :the'- offense in thedndictme’rtt;!oí1 tlierbis'---no:-’criine'alleged.1"''An-oath ' may be false', -and still'not willfully false, so ns- tó - constitute the crime of perjury. 2 Bishop Crim. Law, §1046. See, also, Commonwealth vs. Brady, 5 Gray, 78.

- It may also be to an immaterial matter; out King,- one;'not material to the'issue,'- in which'case,-it COuld'diot hedield as a willful false oath. 1 Hawkins P. C., C. 27, page 431.

- In Some cases,'where a¡ false oath has" been- ¡tákény :the. 'party was •purt'ished'hy'-irtdiC,tmbnt!,a-i.!cornihoh;iiaw;'for bmiádemeanói', though the offerise’did not amoünt to-'perjury.:,‘'i 2 Russell on Crimes, 603; 2 Bishop C.L., § 1014.

flt-'is said1 “the false Oath ffifist'berwdlífukartd taken1 with some degree: of deliberation"; 'for if, lipón th'é -Wholebircnmstances, o.f the. ease,, it shall appear probable .that, it was* owing rather to the weakness than perverseness of the party, •as where it was occasioned by surprise, or inadvertency, or •a mistake of the true state of the question, it cannot but be hard to make it amount to voluntary and corrupt perjury, ' which is of all crimes whatsoever the. most infamous and ,detestable.” 1 Hawkins, P. C., C, 27, § 2; 2 Russell on Crimes, 597.

A false oath, taken by inadvertence,,01: mistake, cannot ^amount to voluntary and corrupt, perjury. 2 Wharton C. L. § 2199.

On the other hand, i.t has, beep held . that, a .man may be guilty of perjury if he, swears to a particular, fact without, at the time, knowing whether it be true or false. It.is no defense that the oath so taken is true, if the party swears, to it willfully and corruptly, and rhas.po probable ground for the oath. 1 Hawkins P. C., C. 27, page 433; People vs. McKenney, 3 Parker C. R. 510.

. It will thus be seen that there is a, difference, between a willful false .oath, constituting the crime of, perjury, and a false oath which, at common law, might he punished as a misdemeanor. The one is stubborn and, corrupt, while the other is simply not true, lacking the elements which go to .constitute the crime of perjury as defined by our statute. The jury must find that the accused was guilty of taking a willfully false oath, and in relation to matter material to the issue, in order to convict him of the crime of perjury and to render him liable to the .punishment prescribed for that .offense, and to,this end the court should have so charged .them.

The third ground of error assigned*' is similar to and em■braeed in the first,' that the couft refused to permit the accused. to, make his statement pf the matters,, of his ' defense, 'on oath, before the jury. The accused, at the same time of ■making such offer, stated' tó the court‘the sxxbstance of the statement so proposed to be inada The coxxi't refused to grant the request upon the ground of irrelevancy, and said that if the facts so proposed to be stated to the jury were true, it was no ■ defense. This point has been disposed of under the first above assignment of error, where we hold that the accused, under the statute, has a- right to make a statement of the matter of his defense, on oath, before the jury. We cannot see how such a statement as is offered by the accused would be irrelevant. It related, certainly, to the matter of his defense; to the question, which the jury must determine, of the intent. Was the oath alleged to have been taken by the accused willfully false ? or was it taken through inadvertence, and not with a corrupt motive ? It would go for what' it was worth, and while it might hot strictly be a defense to the prosecution,- yet the accused had á right to its consideration by the jury, whose judgment might have been influenced in his favor by it. “ It - would give to the jury for their consideration the facts upon which his oath was based, and the reasons operating upon his mind, and, from those facts and reasons they might determine the motives, if any, influencing him. We think it should have been admitted by the court.

The judgment must be reversed and a new trial awarded.  