* Corpus Juris-Cyc References: Criminal Law, 16CJ, p. 759, n. 89; Judgment, 34CJ, p. 969, n. 95; Perjury, 30Cyc, p. 1402, n. 20; p. 1403, n. 23; p. 1406, n. 41; p. 1417, n. 50; p. 1418, n. 54; p. 1422, n. 94 New. Appellant, Gertrude Robinson, was indicted, tried, and convicted of perjury. The offense charged is that appellant committed perjury in the trial of State v. Gertrude Robinson, in which a conviction of possession of intoxicating liquors was appealed to this court and reversed in 108 So. 903. In that case, evidence of search of a person was introduced, such search having been made under a search warrant proceeding, during which whisky had been found in the residence of Gertrude Robinson, and, after finding such whisky, the person of appellant was searched and other whisky was found upon her person, and in which case the prosecuting officer, a constable, testified that, after finding this liquor upon her person, he arrested her and carried her to a justice of the peace. While the appeal was pending in this court in the former case, appellant was indicted for perjury, and, after the decision of that case here, it was contended for *Page 757 defendant that the adjudication in the former opinion that the search was illegal, made the testimony of defendant that she did not have the whisky on her person immaterial, so that perjury could not be predicated thereon. In the trial below the constable testified that he misunderstood the district attorney's question in the former appeal, but that the fact was that he had already arrested appellant before the search of her person was made, that his answer in the other case was inaccurate and made on a misunderstanding, and that he did not intend to convey the idea that the arrest was made subsequent to the search, for the fact was that it was made prior to the search.
In the present case, the state first put upon the witness stand the federal prohibition officer who was present at the time the search was made, but who did not testify in the former case, and who testified that the appellant was arrested prior to the search of her person.
It was amply proved in the present case that appellant testified in the former case that she did not have the liquor in her possession.
We think that the evidence was material to the issue then being tried.
A defendant may testify or refuse to do so in a criminal trial, but if the defendant chooses to testify, then he or she must testify to the truth, and the state has the right, where the defendant testifies, if it can do so, to prove any part of its case by the evidence of the defendant. Such evidence is material to the issue, and if perjury is committed, by so testifying, the defendant is subject to punishment, although he or she had the constitutional right to remain silent, and, if this right was exercised, the state could not proceed except upon its own testimony.
Appellant contends that it has already been adjudged that the evidence obtained by the search was illegal, and it was conclusively so held in the former case, and it is not permissible now for witnesses to change testimony *Page 758 then delivered, the state being bound by the adjudication of that issue. That is to say, it constitutes res adjudicata. Such adjudication, however, was made upon testimony contained in the record on the former trial. In the present case, the state introduced additional testimony which shows that the search was made after the defendant had been arrested, and, as it was made in aid of the offense being prosecuted, it was legal, and the evidence found was admissible in the trial of this issue.
The defendant in the present case did not testify, but the record contains the evidence of two witnesses to the effect that the defendant was searched after the arrest was made, and such testimony has been in no wise impeached, and there is no evidence in the record challenging the truth of these witnesses, except the officers' transcribed evidence in the former case.
The judgment of conviction will therefore be affirmed.
Affirmed.