#### Johnson *v.*The State.

*Perjury.*

(Decided Jan. 18, 1912.

57 South. 389.)

1. *Trial; Plea to Indictment; Effect.*— Where defendant has pleaded not guilty and gone to trial on indictment without raising any objection thereto, he cannot on appeal, raise the objection that the indictment was uncertain.

2. *Perjury; Indictment; Sufficiency.*— An indictment for perjury charging that the defendant, on an application to set aside a default judgment in a civil case and being duly sworn by the clerk of the court, who had authority to administer oath, falsely swore that he was taken 'ill and unable to appear, is in substantial compliance with form 82, section 7161, Code 1907, and is sufficient.

3. *Same; Evidence.*— Where the indictment charged false swearing in aii application to have a judgment by default in a civil suit set aside, the affidavit made by the defendant in order to have the default set aside 'is admissible.

4. *Charge of Court; Construction; Exception.*— Where the charge contains several propositions at law, some of which are correctly stated, exception to the charge as a -whole cannot be sustained, although some of the propositions are incorrectly stated.

Appeal from Montgomery City Court.

Heard before Hon. Armstead Brown.

Calvin Johnson was convicted of perjury, and he appeals.

Affirmed.

The indictment is as follows, omitting1 the formal charging part: “Calvin Johnson, on an application to set aside a judgment in á civil action in the city court of Montgomery, in which Sampson Wood and Lucinda Wood were plaintiffs, and the said Calvin Johnson the defendant, being duly sworn b3r the clerk of said court, who had authority to administer such oath, falsety swore that on June 3rd last, while on a. train en route to Atlanta, he was taken so ill that he required the attention of a physician; that he reached Montgomery on Saturday night, and went at once to where he *99resides, about one mile beyond Picket Springs, and went to bed, and Avas confined to bis bed continuously until June 9th; that be was in a painful condition; that he was not able to think about inquiring of bis attorney relative to bis case — tbe matters so sworn to being material, and the oath of said Calvin Johnson in relation to such matters being willfully and corruptly false.”' Tbe affidavit introduced was an affidavit in support of a motion to set aside judgment by default and grant tbe defendant therein a neAv trial.

Tbe oral, charge of tbe court is set out in full in the-transcript, and tbe folloAving portions ■ Avere excepted to: “Now, it is admitted by tbe defendant that be did swear falsely in that affidavit with regard to coming home on Saturday night. The court does not think it material Avlietker be came home Saturday morning or not; so that part of tbe affidavit, so far as constitutes a crime is concerned, I charge you is not sufficient. It is. admissible in evidence, gentlemen, as contended for by tbe solicitor, who- does not contend for anything, except what is material in this affidavit. It is admissible in evidence in this view of tbe case, for you are to determine Avhether or not defendant did swear falsely in regard to the material parts of tbe'affidavit. For whatever light it may shed on tbe case, tbe Avhole affidavit is admissible in evidence, and goes to you, and you may consider tbe whole affidavit. But gentlemen,' tbe material part of tbe affidavit is this — that part of it which SAvears that be Avas too sick at the time this case was set, and Avhen tbe judgment Avas taken against him, to-come to court. He swears that be was too sick, in that affidavit — that, is material — if be Avas too- sick, that judgment ought- not to baAre' been taken against him, and was a good ground for a motion. Was that sworn falsely? That is the question for you to determine.”

*100Warren S. Reesé, Hill, Hill & Whiting, and H. B. Fuller, for appellant.

The indictment was insufficient ■and uncertain in its *averments.*— State *v. Chandler„*42 Ala, 446; *Hood v. The State,*44 Ala. 81; *Gilmer v. Lee,*■3 Ala. 612; *Jaco'bs v. The State,*61 Ala, 454; *Walker v. The State,*96 Ala. 54; *Englehcurt v. The State,*103 Ala. 90. A motion for a new trial need not be in writing, but may rest in parol, and hence, could not be the foundation of a prosecution for *perjury.*— Monteagle *v. Livingston,*150 Ala. 562. The oral charge of the court was ■in violation of section 5252 of the Code, and had other defects.

R. C. Brickell, Attorney General, and W. L. Martin, Assistant Attorney General, for the State.

The indictment set forth sufficiently the ingredients of the • •offense of *perjury.*— Williams *v. The State,*64 Ala. 551; *Peterson v. The State,*74 Alla. 34; *Davis v. The State,*79 Ala, 20; *Hix v. The State,*86 Ala, 30; *Barnett v. The State,*89 Ala. 165; *Smith v. The State,*103 Ala. 57. The original motion and affidavit was admissible. *—Smith v. The State,*103 Ala. 57. Parts of the oral •charge were correct at least, and objection was taken to it as a whole, and hence, is not available.

WALKER, P. J.

The defendant did not in the trial •court, by demurrer, motion to quash, or otherwise, raise any question a,s to the sufficiency of the indictment. Having pleaded not guilty and gone to trial ■on the indictment without interposing any objection to it, the objections, now for the first time suggested to it, going merely to the question of its being sufficiently definite and specific in its averments descriptive of the proceedings in which the alleged perjury is charged to have been committed, are, on appeal, to be treated *101as having been *waived.*—Wilson *v. State,*128 Ala. 17, 29 South. 569; *Oakley v. State,*135 Ala. 15, 33 South. 23. But it may be added that the indictment substantially follows the form given in the Code for an indictment for perjury committed in a civil proceeding (Code,. §7161, form 82); and that its averments conform to the requirements of the law as decided in many cases.—*Barnett v. State,*96 Ala. 165, 7 South. 414; *Walker v. State,*96 Ala. 53, 11 South. 401; *Smith v. State,*103 Ala. 57, 15 South. 866; *Bradford v. State,*134 Ala. 141, 32 South. 742.

There was no merit in the objection made to the introduction in evidence of the affidavit signed and sworn to by the defendant. The evidence showed that it was made and used in the proceeding mentioned in the im dictment, and there was no lack of correspondence between this evidence and the averments of the indict*ment.*—Williams *v. State,*68 Ala. 551; *Bradford v. State,*134 Ala. 141, 32 South. 742.

The part- of the court’s oral charge to which an exception was reserved embodied several distinct propositions, some of which, at least, were distinctly favorable to the defendant, and the giving of those propositions in charge could not have . constituted a valid ground of objection or exception by him. As to one or more other propositions contained in that part of the charge, it was plainly not subject to criticism. The exception having been reserved to the part of the charge set out as a whole, it cannot be sustained, even though it be conceded that it embodied a legally incorrect proposition, which was not separately excepted to.

Affirmed.