Any judgment, verdict, rule, or order of court which may have been obtained or entered shall be set aside and be of no effect if it appears that the same was entered in consequence of corrupt and willful perjury. It shall be the duty of the court in which the verdict, judgment, rule, or order was obtained or entered to cause the same to be vacated upon motion and notice to the adverse party; but it shall not be lawful for the court to do so unless the person charged with perjury shall have been duly convicted thereof and unless it appears to the court that the verdict, judgment, rule, or order could not have been obtained and entered without the evidence of the perjured person, saving always to third persons innocent of such perjury the rights which they may lawfully have acquired under the verdict, judgment, rule, or order before the same shall have been actually vacated.
(Laws 1833, Cobb's 1851 Digest, p. 804; Code 1863, § 3510; Code 1868, § 3533; Code 1873, § 3591; Code 1882, § 3591; Civil Code 1895, § 5366; Civil Code 1910, § 5961; Code 1933, § 110-706.)
Cross references.- Perjury and related offenses generally, § 16-10-70 et seq.
JUDICIAL DECISIONSANALYSIS
General Consideration
Section does not deny equal protection.
- This section applied to all persons alike, and hence, does not deny equal protection to anyone. Burke v. State, 205 Ga. 656, 54 S.E.2d 350 (1949).
Section does not deny due process.
- Even though a conviction for crime, procured by perjured evidence and known to be such by the state's prosecuting attorneys, amounts to a denial of due process of law, yet this section, which authorized a new trial when a conviction was based upon perjury and requires that proof of such perjury be made by a judgment of conviction, was not unconstitutional in that the conviction denied due process and equal protection of the law. Chatterton v. State, 221 Ga. 424, 144 S.E.2d 726 (1965), cert. denied, 384 U.S. 1015, 86 S. Ct. 1964, 16 L. Ed. 2d 1036 (1966).
Section shows how to prove perjury and requires that judgment be set aside.
- This section not only required the setting aside of a judgment procured by perjured testimony, but prescribed the evidence by which the fact of perjury may be proved, thus affording due process. Burke v. State, 205 Ga. 656, 54 S.E.2d 350 (1949).
Former Code 1933, § 110-706 (see O.C.G.A. § 17-1-4) was but the exercise of the sovereign right of the state to fix rules of evidence and was in harmony with former Code 1933, § 38-101 (see O.C.G.A. § 24-1-1). Burke v. State, 205 Ga. 656, 54 S.E.2d 350 (1949).
Judgment overturned only if rights injured.
- "Any judgment, verdict, rule, or order of court" refers only to those judgments or orders which go directly in support or defeat of the rights of the parties injuriously affected thereby. Price v. Cobb, 63 Ga. App. 694, 11 S.E.2d 822 (1940).
Conviction based on perjured testimony of which prosecutor had knowledge.
- When it is shown and not denied that a conviction was procured by perjured testimony, which testimony the state's prosecuting attorney knew to be perjured at the time the testimony was introduced, due process as guaranteed by U.S. Const., amend. 14 is denied, regardless of whether such testimony is merely impeaching in character or has probative force. Burke v. State, 205 Ga. 656, 54 S.E. 350 (1949).
Perjured exculpatory testimony versus inculpatory.
- Trial court could not conclude that the jury's guilty verdicts could not have been obtained without the victim's admittedly perjured exculpatory testimony for the defense because even treating the battery victim's guilty plea and receipt of probation as a first offender conviction, the victim pled guilty to committing perjury with respect to exculpatory trial testimony, not inculpatory testimony during the state's case-in-chief. Walker v. State, 348 Ga. App. 273, 821 S.E.2d 567 (2018).
Witnesses are not judges of truth of testimony.
- Witnesses themselves, whoever the witnesses may be, are not the legal judges of the truth of testimony delivered on the original trial, or on an extraordinary motion for a new trial, even though the testimony in controversy is the witnesses' own testimony and was contradictory on two occasions. The laws of the land have put this responsibility upon the judges and the courts, and have laid down certain rules which judges and the courts are to follow in determining this matter. Moore v. State, 59 Ga. App. 456, 1 S.E.2d 230 (1939).
When there was no allegation of indictment and conviction of any witnesses who allegedly testified falsely, the trial court did not err in dismissing the defendant's claim seeking to set aside the judgment against the defendant. Sun v. Bush, 179 Ga. App. 140, 345 S.E.2d 873 (1986).
Grounds for setting judgment aside generally.
- Motion, whether the motion be construed as one to arrest or as one to set aside, did not show a proper cause for the relief sought because nowhere in the motion was it alleged that the judgment sought to be set aside or arrested was procured by accident, mistake, or fraud or through any defect not amendable appearing on the face of the record or pleadings or by perjury or any other irregularity. Chambless v. Oates Plumbing & Heating Co., 97 Ga. App. 80, 102 S.E.2d 83 (1958).
Judgment may be set aside even when defect not apparent on record.
- This section provides clear recognition of the right to set aside a judgment for a defect not apparent on the record. Ford v. Clark, 129 Ga. 292, 58 S.E. 818 (1907); Lyons v. State, 7 Ga. App. 50, 66 S.E. 149 (1909).
Successful party's admissions may be grounds to set aside.
- A new trial may be granted for newly discovered evidence of material admissions of the successful party, which is not cumulative to other evidence offered at the trial. Evidence of admissions made by the successful party after the trial, or subsequent declarations inconsistent with that party's testimony on the trial, may be ground for setting aside the verdict, at least in the interest of justice. Perry v. Hammock, 75 Ga. App. 171, 42 S.E.2d 651 (1947).
Fraud must be extrinsic, not just fraud in procuring judgment.
- Frauds for which the court may set aside a former judgment between the same parties are limited to matters which are extrinsic and collateral to the issue tried in the former case, and do not include fraud in procuring a judgment by false testimony unless it is shown, among other things, that the witness has been convicted of perjury. Elliott v. Marshall, 182 Ga. 513, 185 S.E. 831 (1936).
Cited in J.S. Scholfield's Sons Co. v. Vaughn, 40 Ga. App. 568, 150 S.E. 569 (1929); Swords v. Roach, 175 Ga. 774, 166 S.E. 185 (1932); Bird v. Smith, 186 Ga. 301, 197 S.E. 642 (1938); Young v. Young, 188 Ga. 29, 2 S.E.2d 622 (1939); Haygood v. Haygood, 190 Ga. 445, 9 S.E.2d 834 (1940); Bonner v. State, 63 Ga. App. 464, 11 S.E.2d 431 (1940); Thompson v. State, 67 Ga. App. 240, 19 S.E.2d 777 (1942); Burke v. State, 205 Ga. 520, 54 S.E.2d 348 (1949); Armstrong v. Armstrong, 206 Ga. 540, 57 S.E.2d 668 (1950); Stembridge v. Georgia, 343 U.S. 541, 72 S. Ct. 834, 96 L. Ed. 1130 (1952); Harper v. Mayes, 210 Ga. 183, 78 S.E.2d 490 (1953); Self v. State, 108 Ga. App. 201, 132 S.E.2d 548 (1963); Farmer v. State, 223 Ga. 364, 155 S.E.2d 14 (1967); Bowen v. State, 144 Ga. App. 329, 241 S.E.2d 431 (1977); Arnold v. State, 163 Ga. App. 10, 293 S.E.2d 501 (1982); John v. State, 282 Ga. 792, 653 S.E.2d 435 (2007).
Perjury Conviction
Section requires perjury conviction as purest proof.
- This section required evidence which was convincing and which came from the purest source, to wit, a conviction for perjury. Burke v. State, 205 Ga. 656, 54 S.E.2d 350 (1949).
In order not to burden court with choice between contradictory statements.
- This section sought the purest source from which proof of perjury could be obtained. It recognized that when one and the same person, speaking under the solemnity of an oath, testified to a state of facts and subsequently, speaking under the solemnity of an oath, gave testimony which completely contradict that previous testimony and assert that the person committed perjury, the court, seeking the discovery of the truth, ought not to be called upon to say whether or not one of such statements is enough reliable evidence to authorize disbelief of the other. Burke v. State, 205 Ga. 656, 54 S.E.2d 350 (1949).
Verdict not set aside without perjury conviction.
- Verdict will not be set aside because of the false testimony of a witness unless and until the witness has been convicted of perjury. Stephens v. Pickering, 192 Ga. 199, 15 S.E.2d 202 (1941); Parsons v. Georgia Power Co., 67 Ga. App. 517, 21 S.E.2d 257 (1942); Chandler v. Chandler, 107 Ga. App. 124, 129 S.E.2d 370 (1962); Marshall v. Russell, 222 Ga. 490, 150 S.E.2d 667 (1966), cert. denied, 386 U.S. 911, 87 S. Ct. 857, 17 L. Ed. 2d 783 (1967); Day v. State, 242 Ga. App. 899, 531 S.E.2d 781 (2000).
New trial was not warranted by the fact that a witness executed an affidavit stating that the witness lied when the witness said the defendant admitted to the witness that the defendant killed the victim since there was no evidence that the witness was convicted of perjury or that the defendant's conviction could not have been obtained without the witness's testimony. Ashley v. State, 263 Ga. 820, 439 S.E.2d 914 (1994).
Witness recants under oath.
- Evidence that one of the state's witnesses, since the trial, has made declarations, even though under oath, that the witness's testimony given upon the trial was false, is not cause for a new trial. Hall v. State, 117 Ga. 263, 43 S.E. 718 (1903); Clark v. State, 117 Ga. 254, 43 S.E. 853 (1903); Jordan v. State, 124 Ga. 417, 52 S.E. 768 (1905); Hinsman v. State, 14 Ga. App. 481, 81 S.E. 367 (1914); Smarr v. Kerlin, 21 Ga. App. 813, 95 S.E. 306 (1918).
Recanting witness is sole witness.
- Perjury of a witness is not a ground which requires the grant of a new trial unless it is made to appear that the witness has been duly convicted thereof, even though the witness who later declares the witness's testimony was false was the sole witness against the defendant. Morrow v. State, 36 Ga. App. 217, 136 S.E. 92 (1926); Moore v. State, 59 Ga. App. 456, 1 S.E.2d 230 (1939); Thompson v. State, 84 Ga. App. 419, 65 S.E.2d 925 (1951).
No evidence that witnesses convicted of perjury.- Defendant was not entitled to a new trial based on the defendant's convictions being obtained based upon the perjured testimony of lay witnesses because the defendant produced no evidence that either witness had been convicted of perjury or that their prior testimony was the purest fabrication; and, to the extent the defendant argued that the witnesses' statements at trial qualified as perjury, that argument failed as such statements related only to the witnesses' credibility and were merely impeaching. Clay v. State, Ga. , S.E.2d (Aug. 24, 2020).
Perjury conviction not sufficient justification when judgment obtainable without perjured evidence.
- Conviction of a perjured witness is not itself sufficient to justify a court in setting aside a verdict and judgment in a case in which the witness testified, unless the verdict or judgment could not have been obtained and entered without the evidence of such perjured person. Richardson v. Roberts, 25 Ga. 671 (1858); Munro v. Moody & Fry, 78 Ga. 127, 2 S.E. 688 (1886); Gant v. State, 115 Ga. 205, 41 S.E. 698 (1902); Thomason v. Thompson, 129 Ga. 440, 59 S.E. 236, 26 L.R.A. (n.s.) 536 (1907); Morgan v. State, 16 Ga. App. 559, 85 S.E. 827 (1915); Massie v. State, 24 Ga. App. 548, 101 S.E. 703 (1919); Tanner v. Wilson, 58 Ga. App. 229, 198 S.E. 77 (1938); Aycock v. State, 188 Ga. 551, 4 S.E.2d 221 (1939); Stephens v. Pickering, 192 Ga. 199, 15 S.E.2d 202 (1941).
Defendant's convictions were not obtained by the use of perjured testimony because there was no showing that any perjury actually occurred or that the witness was ever charged with or convicted of perjury; even assuming that the witness committed perjury, the guilty verdicts and consequent judgments could have been obtained without such evidence because there was testimony from other witnesses at the crime scene portraying the defendant's unjustified shooting of the victim. Nations v. State, 290 Ga. 39, 717 S.E.2d 634 (2011).
Perjured testimony as a turning point in the minds of the jurors.
- When the verdict could have been obtained without the evidence of the perjured witness, the appellate court is without power to reverse the trial court which denied the motion for new trial, even though the testimony of the perjured witness may have constituted the turning point in the minds of the jurors bringing about the conviction. Harris v. State, 99 Ga. App. 717, 109 S.E.2d 912 (1959).
Court of equity will not set aside such judgment based on perjured testimony.
- Court of equity will not set aside a judgment, although obtained by willful and corrupt perjury, unless it appears that the perjurer has been convicted of such perjury, and unless it appears that a judgment could not have been rendered without the perjured testimony. Hutchings v. Roquemore, 171 Ga. 359, 155 S.E. 675 (1930); Elliott v. Marshall, 182 Ga. 513, 185 S.E. 831 (1936).
No evidence of defendant's perjury conviction.
- Although the state argued that the order discharging the defendant from probation resulted from perjury and, thus, the trial court had jurisdiction, the state came forward with no evidence showing that the state had convicted the defendant of perjury and the trial court erred in granting the state's motion to set aside the discharge order. Whipkey v. State, 352 Ga. App. 746, 835 S.E.2d 740 (2019).
Grant of new trial is in judge's discretion.
- Fact that a witness for the prevailing party has been afterwards convicted of perjury in respect to testimony given in the trial of the case will not absolutely require the grant of a new trial or a setting aside of the verdict rendered unless it also appears that such verdict could not have been rendered or returned except for such perjured testimony. The fact, however, that the testimony of such witness does not require, as a matter of law, the grant of a new trial will not prevent the trial judge in using judicial discretion from granting such a motion although the judge is not required by law so to do. Geo. A. Hormel & Co. v. Ramsey, 62 Ga. App. 343, 7 S.E.2d 789 (1940).
Not error to refuse to consider perjury evidence without conviction.
- No verdict or judgment may be set aside on the grounds of corrupt and willful perjury unless it appears to the court that the person charged with such perjury has been thereof duly convicted. Consequently, there is no error when, on motion for new trial, the trial court refuses to consider any evidence of perjury which would not comply with this section. Mitchell v. State, 120 Ga. App. 447, 170 S.E.2d 765 (1969).
Section may help defendant under certain phases of case.
- This section, under certain phases of a case, might operate in favor of a defendant, for irrespective of what the trial judge might think as to whether a new trial should be granted on an extraordinary motion, if it appears that the verdict was entered up on consequence of corrupt and willful perjury, and the persons charged with such perjury have been duly convicted thereof, the verdict should be set aside, unless it appears to the court that the verdict or judgment could have been obtained and entered up without the evidence of such perjured person or persons. Moore v. State, 59 Ga. App. 456, 1 S.E.2d 230 (1939).
Motions
Essential elements of affidavit of illegality.
- In order to support an affidavit of illegality based on perjury, two things must appear: (1) there must have been a conviction of perjury; and (2) it must appear that the judgment could not have been obtained without this perjured evidence. Lewis v. Wall, 70 Ga. 646 (1883).
Essential elements of petition to have verdict set aside.
- Petition asking that a verdict and decree be set aside because the verdict and decree were rendered on the perjured testimony of a named witness does not set forth a cause of action for that reason when the petition fails to allege that the witness has been duly convicted of perjury with respect to such testimony and that the verdict and decree were based on that testimony alone. Hubbard v. Whatley, 200 Ga. 751, 38 S.E.2d 738 (1946); Day v. Day, 210 Ga. 454, 81 S.E.2d 6 (1954).
Motion in arrest of judgment must allege grounds.
- If nowhere in the motion for arrest of judgment it is alleged that the judgment sought to be arrested was procured by accident, mistake, or fraud, through any defect not amendable appearing on the face of the record or pleadings, by perjury, or any other irregularity, the motion is without merit. Stefanick v. Ouellette, 97 Ga. App. 644, 104 S.E.2d 156 (1958).
When motion to vacate fails.
- Motion to vacate, presented to the judge at the trial term, wholly fails to meet the requirements of a proceeding to set aside a judgment when it is not addressed to some unamendable defect appearing on the face of the record, as is required of a motion in arrest of judgment and of a statutory motion to set aside, nor if it is founded upon a charge of perjury, and does not seek relief against a judgment irregularly or improperly obtained. East Side Lumber & Coal Co. v. Barfield, 193 Ga. 273, 18 S.E.2d 492 (1942).
Motion to set aside due to alleged perjured testimony.
- Defendant was not entitled to have the defendant's convictions set aside due to alleged perjured testimony as the defendant made no showing any perjury actually occurred. Coggins v. State, 293 Ga. 864, 750 S.E.2d 331 (2013).
RESEARCH REFERENCES
ALR.
- Fraud or perjury in misrepresenting status or relationship essential to the judgment as ground of relief from, or injunction against, judgment, 49 A.L.R. 1219.
Perjury as ground of attack on judgment or order of court, 126 A.L.R. 390.
Statements of witness in civil action secured after trial, inconsistent with his testimony, as basis for new trial on ground of newly discovered evidence, 10 A.L.R.2d 381.
Dismissal of action because of party's perjury or suppression of evidence, 11 A.L.R.3d 1153.
CHAPTER 2 JURISDICTION AND VENUESec.
RESEARCH REFERENCES
ALR.
- Continuous transaction constituting a complete offense in each county or district as constituting more than one offense, 73 A.L.R. 1511.
Retroactive operation and effect of venue statute, 41 A.L.R.2d 798.
In personam or territorial jurisdiction of state court in connection with obscenity prosecution of author, actor, photographer, publisher, distributor, or other party whose acts were performed outside the state, 16 A.L.R.4th 1318.