The indictment is in Code form, and is sufficient to charge the defendant with the crime of perjury.
The use of the masculine pronoun in designating the defendant, who is a woman, does not render the indictment defective. "Words used in the masculine gender include the feminine and neuter." Code 1907, § 1.
The charge was for false swearing on the trial of Tom Peyton, Sr. and Jr., "under indictment for the murder of one Alex Stonecypher." It appears from the court records that there were separate indictments against Tom Peyton, Sr., and Tom Peyton, Jr., and so far as the court records disclose there were separate trials of the Peytons, and no joint trial. On the trial of this defendant the state, over the timely objections of defendant, was permitted to prove that, on the trial of the two Peytons on the separate indictments, counsel for the state and defendants verbally agreed that the two cases might be tried at the same time and before the same jury. In the absence of this testimony, the proceedings in the two cases, offered in evidence by the state, would have been subject to the objections raised by the defendant. Walker v. State, 96 Ala. 53,11 So. 401; Jacobs v. State, 61 Ala. 448; Dennison v. State, 15 Ala. App. 84, 72 So. 589. It therefore becomes vital to this appeal to determine whether the state can prove a state of facts at variance with that shown by the records of the court.
The indictment charged false swearing on a single trial of Tom Peyton, Sr. and Jr. It was therefore necessary for the state to prove the pendency of such a case and its trial, in the court alleged. In its efforts to meet this burden the state introduced the records of the circuit court, showing separate trials and separate judgments rendered as to each of the Peytons. The conclusiveness of these judgments as between the parties can never be attacked or contradicted. We know of no law which authorizes a consolidation of felony cases where the parties are not jointly indicted, and in this case, taking the records of the court as importing verity, it was not done. In order for the state to make out its case against this defendant, it must show a cause in a court of competent jurisdiction, a trial of that cause, and a false swearing by the defendant to the matter charged. Here has been shown, not one and a joint charge, but two, and while the two causes, as matter of fact, may have been tried at one and the same time, none *Page 135 the less the force and effect was that of two trials. The prosecution in this case being dependent on the record of the trial in which defendant is charged with false swearing, we hold that the state cannot vary the records of its courts as to the trials.
The rulings of the trial court were contrary to the above, and for those errors the judgment is reversed, and the cause is remanded.
Reversed and remanded.