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DAVID MICHAEL McFEE v. STATE OF MISSISSIPPI

JULY 22, 1987

DAVID MICHAEL McFEE
v.
STATE OF MISSISSIPPI



BEFORE HAWKINS, P.J., PRATHER AND SULLIVAN, JJ.

PRATHER, J., FOR THE COURT:

The weight and legal sufficiency of evidence to sustain a conviction of perjury by contradictory sworn statements is the question raised on this appeal. McFee was convicted of perjury by a jury in the Circuit Court of Jones County, as a recidivist and sentenced to a term of twenty years in the Department of Corrections. McFee appeals complaining that

the alleged perjury was not proved by the testimony of two witnesses or of one witness and corroborating circumstances, and that the trial court erred in refusing his motion for directed verdict and judgment notwithstanding the verdict. This Court finds no error and affirms.

 I.

 David Michael McFee and Eric Fuselier were jointly indicted for the capital murder of Rosie Gunter, with an underlying crime of burglary. While in custody, McFee gave a sworn statement to police which implicated Fuselier in the crime. He subsequently gave a second sworn statement elaborating in more detail the same implicatory facts regarding Fuselier, but exculpatory to himself, claiming his own actions were only accessory after the fact. Upon these two sworn statements, McFee plea bargained and pled guilty to simple murder and received a life sentence.

 Subsequently at the capital murder trial of his coindictee Fuselier, McFee testified materially and substantially different from his two previous sworn statements.

 Due to the conflicts between McFee's testimony at Fuselier's trial and McFee's pretrial statements, McFee was charged with the crime of perjury. A jury found McFee guilty and he was sentenced under Miss. Code Ann. 97-9-61 (1972) as an habitual offender to a term of twenty years.

 Was the prosecution's proof sufficient to sustain a conviction for perjury on the testimony of two witnesses or one witness and corroborating circumstances?

 The appellant's indictment charged the crime of perjury under Miss. Code Ann. 97-9-59 (1972) which defined perjury as:

 Every person who shall wilfully and corruptly swear, testify, or affirm falsely to any material matter under any oath, affirmation, or declaration legally administered in any matter, cause, or proceeding pending in any court of law or equity, or before any officer thereof, or in any case where an oath or affirmation is required by law or is necessary for the prosecution or defense of any private right or for the ends of public justice, or in any matter or proceeding before any tribunal or officer created by the Constitution or by law, or where any oath may be lawfully required by any judicial, executive, or

 administrative officer, shall be guilty of perjury, and shall not thereafter be received as a witness to be sworn in any matter or cause whatever, until the judgment against him be reversed.

 The form of the indictment is in compliance with the Miss. Uniform Criminal Rules, Circuit Court Rule 2.05 and properly states the requisites of the crime of perjury as set forth in Miss. Code Ann. 99-7-39.

 The State was required to prove beyond a reasonable doubt that the appellant's testimony at Fuselier's trial was false. The general rule is that [a] "statement of accused, directly contradicting that upon which the perjury is assigned, is not sufficient evidence of the falsity of the latter, but other additional extrinsic evidence is necessary to establish its falsity." Williams v. State, 41 So.2d 605, 607 (Ala. 1949) 48 C.J., Perjury, 166, p. 900; 41 Am. Jur., Perjury, 66, p. 36.

 It is McFee's argument that, absent witnesses to the rape, burglary, and murder of Rosie Gunter, the State cannot prove when and where he lied. Therefore, he contends he is ...


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