1. It is not perjury when an oath is taken through surprise or confusion, or a bona fide mistake as to the facts, nor is it perjury to swear honestly to testimony which the witness believes to be true though a little diligence would have enabled him to discover its falsity. "'The offense consists in swearing falsely and corruptly, without probable cause of belief; not in swearing rashly or inconsiderately.'" Herring v. State, 119 Ga. 709, 716 (46 S.E. 876).
2. Where, however, the affiant in the affidavit, whether he can read or write or not, dishonestly and corruptly refuses to make inquiry, and purposely shuts himself in to impressions which he had good reason to believe further investigation would dispel, then it is perjury. The corruptness, when proved, completes the offense; the absence of corruptness negatives it. 2 Wharton's Crim. Law, 1784, 1787, §§ 1511, 1516.
3. "Corruptly," as used in the indictment, seems to us to necessarily imply knowledge and a corrupt consideration of $2.50 to swear to the affidavit. Decker v. State, 189 Ark. 739 (2) (75 S.W.2d 69); State v. Stein, 48 Minn. 466 (51 N.W. 474).
4. The indictment against George M. Hicks for subornation of perjury, in that he procured Loyd Howard to commit the crime of perjury, was not subject to the demurrers filed for the reasons assigned.
DECIDED JULY 1, 1942. George M. Hicks was indicted for subornation of perjury, to wit, procuring Loyd Howard to commit perjury. The indictment charged Hicks "with the offense of felony, for that the said accused on the 11th day of November, 1940, in the county aforesaid, with force and arms, did unlawfully then and there procure and induce one Loyd Howard to commit the crime of perjury, in that the said accused on the day and date aforesaid did procure the said Loyd Howard to wilfully, knowingly, absolutely, and falsely swear, after a lawful oath had been administered to him by John H. Terry, a *Page 486 notary public of Georgia, State at large, in a matter material to the issue and point in question in a certain judicial proceeding, to wit: in the matter of the case of The State vs. Bill Chappell, Jason Clark, John Holsenback, and Lewis Turner, charged with the offense of murder, said case being indictment No. 6010, then and there pending in the superior court of Cobb County, Georgia, which said court had jurisdiction of said case, by then and there executing a certain affidavit to be used upon a motion in said case and in said court by one of the defendants named in said indictment, to wit: Bill Chappell, for a change of venue in said case, and to be used upon the hearing of an application by said defendant, Bill Chappell, for a change of venue in said case, a copy of said affidavit referred to being as follows: "`Georgia, Cobb County.
"The State of Georgia vs. Bill Chappell.
"Indictment for murder. In Cobb superior court. Charged with the crime of having murdered Mrs. J. Ed Peek.
"`In person appeared before me, an officer authorized by law to administer oaths in and for said county, the undersigned, who after being duly sworn on oath deposes and says that this affidavit is made for the purpose of being used in the hearing of application to change the venue of Bill Chappell, at any hearing that may be had thereon, or any postponed hearing before the Honorable Harold Hawkins, judge. Affiant says that he resides in Cobb County, at Jonesville. Affiant further says that since the alleged murder or death of Mr. and Mrs. J. Ed Peek, on June 20th, 1938, there has been numerous reports, publications and broadcasts with reference to the alleged murder and the connection of the defendant with same; that feeling has and now is running high in Cobb County against the defendant, Bill Chappell. Affiant further says that during the former trial of the case large crowds attended it; and large crowds gathered around the sheriff's office and the jail and had the appearance of being hostile to the defendant. Affiant says that he is of the opinion that the defendant is in danger, and that he will be in danger of some personal violence being done to him, especially if he should be acquitted by a jury in Cobb County.
his (Signed) Loyd X Howard. mark *Page 487 "Sworn and subscribed before me this 11th day of November, 1940. Jno. H. Terry, notary public, Georgia, State at large. My commission expires Feb. 13, 1944.'
"Which said affidavit so executed by the said Loyd Howard was known by the said Loyd Howard to be wilfully, knowingly, absolutely, and falsely executed, and known by the said George M. Hicks to have been wilfully, knowingly, absolutely, and falsely executed in the following particulars: the affiant executing said affidavit and the said defendant herein knew that feeling has not been and is not now running high in Cobb County against the defendant, Bill Chappell; said affiant and said defendant knew that at the former trial referred to in said affidavit that large crowds did not gather around the sheriff's office and the jail having the appearance of being hostile to the defendant, Bill Chappell; said affiant was not of the opinion that the defendant (Bill Chappell) was in danger at the time of the execution of said affidavit, and when said affidavit was executed the affiant was not of the opinion that said named defendant would be in danger of some personal violence being done to him, especially if he should be acquitted by a jury in Cobb County. Said affidavit herein set out and the facts stated therein were material to the issue on the hearing of said application referred to in said affidavit for a change of venue, in that it involved the question to be passed upon at the hearing thereof before the presiding judge, Honorable J. H. Hawkins, the presiding judge of the superior court of Cobb County, and as a matter of fact the maker of said affidavit signed the same without knowing the contents thereof, and was procured to sign the same by the defendant and accused herein upon the payment to him by said accused of the sum of $2.50, said affidavit being absolutely and knowingly false in the particulars hereinbefore set forth, and were so known to be by the said accused as well as by the affiant in said affidavit. And he, the said accused, wilfully, knowingly, and falsely procured the said Loyd Howard to make and sign said false affidavit as hereinbefore set out. And the said accused, George M. Hicks, under the facts as hereinbefore set out, did wilfully, knowingly, and feloniously solicit, counsel, and procure the said Loyd Howard to commit the offense of perjury, and he did commit the offense of perjury, and to wilfully, knowingly, absolutely, and falsely swear, as hereinbefore set out, with and without *Page 488 laying the hand upon the Holy Evangelist of Almighty God, and after having a lawful oath administered to him, as hereinbefore set out, and did then and there procure the said Loyd Howard to make the affidavit hereinbefore referred to, which he the said Loyd Howard then and there knew to be false in the particulars hereinbefore specified, contrary to the laws of this State, the good order, peace and dignity thereof." The rulings on the demurrer in Hicks v.State, ante, 475, are controlling on the issues made by the demurrer in this case, except ground 24 in the instant case, which is as follows: "Because it appears from said indictment that said affiant could not read nor write, and there is no allegation or averment in said indictment that the affidavit was read to the affiant or that he was acquainted with the contents thereof or that he had knowledge thereof, at the time said affidavit was signed by him." Ground 24 of the demurrer attacked the following allegation in the indictment: "and as a matter of fact the maker of said affidavit signed the same [by his mark] without knowing the contents thereof, and was procured to sign the same by the defendant and accused herein upon the payment to him by said accused of the sum of $2.50, said affidavit being absolutely and knowingly false in the particulars hereinbefore set forth, and were so known to be by the said accused as well as by the affiant in said affidavit." This paragraph seems to allege that the affiant, without being informed as to the contents of the affidavit, corruptly, for $2.50, swore to the same, and while what he swore to he knew was untrue and false, yet he did not know that these false assertions were in the affidavit, in fact, he signed it by his mark without knowing the contents thereof. Thus, if the defendant is conscious, that is if he knew, that he did not know what were the assertions contained in the affidavit, he means to swear falsely however the facts may prove to be. It is alleged in the instant case that the facts asserted in the affidavit are untrue. On the other hand, it is not necessarily a good defense to perjury that the things affiant swore to were true. "In an action on a contract before a justice of the peace, the making of the contract was in issue. A witness testified that he went *Page 489 to a field with the parties to the contract, no other persons than the parties and himself being present, and that he heard the contract agreed to by the parties. In point of fact he did not go to the field, was not present when the contract was made, and had no knowledge of the making. The contract was made, nevertheless; but it was held that the prisoner, having wilfully sworn to a thing he did not know to be true, although it was true, was guilty of perjury." 2 Wharton's Crim. Law (12th ed.) 1785 (12). "`Perjury appears to be regarded as an attempt to subvert justice in a judicial proceeding, for a man commits this offense who testifies . . to what he knows nothing about, though it turns out to be true'" or false in a material matter. Davis v. State,7 Ga. App. 680, 685 (67 S.E. 839). Hence, it is perjury for the affiant to attempt to subvert justice in a judicial proceeding by swearing to the contents of the affidavit where the declaration of the witness was that he knew of the contents of the affidavit when he knew nothing of the contents. Davis v. State, supra. The indictment here having alleged that the assertion in the affidavit was wilfully and corruptly false, this includes "knowingly," for the assertions could not have been wilfully and corruptly false without being knowingly false. Atkinson v. State, 133 Ark. 341 (202 S.W. 709). In other words, knowledge under the facts alleged in the indictment, if proved, could be found to have been implied from the allegation of corruptness.
If the affiant, even though he could not read or write and knew nothing about the contents of the affidavit to which he had sworn, can safely furnish a false and corrupt affidavit about matters then under investigation, and can secure complete immunity by purposely abstaining from all inquiries as to the contents of the affidavit, the object of the law would be defeated. 2 Wharton's Crim. Law, 1787, § 1516; State v. Rupp,96 Kan. 446 (151 P. 1111); Decker v. State, State v. Stein, supra.
The instant case is differentiated from Davis v. State, supra, in that the allegations in the indictment there were that the defendant, who could neither read nor write, knew, that is, had actual knowledge, which is express information to a fact falsely sworn to, and under such an accusation the court said: "The evidence must show that the affidavit was read to him before he swore to its truth, or that he then knew and understood its contents." Whereas in the instant case the allegation is that he knew the facts *Page 490 sworn to were false, but that he wilfully and corruptly swore to the facts which were in the affidavit although he did not know what facts were alleged in the affidavit; but the indictment here alleged that the assertion in the affidavit was wilfully and corruptly false. This includes "knowingly," for the assertions could not have been wilfully and corruptly false without beingknowingly false. Atkinson v. State, 133 Ark. 341, 345. "Knowledge, either express or implied, is absolutely indispensable in order to impute to him a purpose wilfully to swear therein." Rowe v. State, 99 Ga. 706, 712 (27 S.E. 710). In other words, knowledge under the facts alleged in the indictment here, if proved, could be found to have been implied from the proof of corruptness.
We do not think the indictment which charged George M. Hicks with subornation of perjury, in that he procured Loyd Howard to commit the crime of perjury, was subject to the demurrers filed for the reasons assigned.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.