Austin v. United States
| Decision Date | 23 May 1927 |
| Docket Number | No. 4992.,4992. |
| Citation | 19 F.2d 127 |
| Parties | AUSTIN v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
J. D. Austin, of Leavenworth, Kan., in pro. per.
Samuel W. McNabb, U. S. Atty., and James E. Neville, Asst. U. S. Atty., both of Los Angeles, Cal.
Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.
The plaintiff in error was convicted under an indictment which, under section 126 of the Penal Code (Comp. St. ß 10296), charged him in two counts with subornation of perjury in the execution of certain supersedeas bonds. For the reversal of the judgment he contends, first, that the indictment failed to allege that the persons who were suborned knew at the time when they were suborned, or at the time of giving their testimony, that they were committing the crime of perjury.
The indictment, however, charged in the first count that the plaintiff in error willfully, knowingly, unlawfully, and feloniously procured and suborned Ella Green and Ivy B. Jividen willfully and contrary to their oath to state and subscribe in said supersedeas bond a certain false and untrue material statement that they and each of them were worth the sum of $25,250, which statement they did not believe to be true, and knew to be untrue, and that at the time of the subornation the plaintiff in error well knew that the aforesaid statement was a false and untrue statement, and well knew that said sureties did not believe the same to be true. Elsewhere in the count it is alleged that the plaintiff in error suborned Ella Green and Ivy B. Jividen to state and subscribe in said supersedeas bond a certain false and untrue material statement, and that he knew that the statement was a false and untrue material statement, and that the proposed sureties then and there well knew that each surety was not worth to exceed $2,000 and $5,000 respectively.
In the second count, in addition to allegations similar to those contained in the first, it is charged that the plaintiff in error did knowingly and feloniously procure and instigate and suborn Ella Green and Ivy B. Jividen to state under oath that the properties described in the supersedeas bond referred to therein were worth the sum of $35,000 and $60,000, respectively; that the said plaintiff in error, the said Ella Green, and said Ivy B. Jividen, each of them, then and there well knew that the said statements were material statements, and that they, and each of them, then and there well knew that the said material statements were false and untrue.
We do not find that either count is fatally defective. "To sustain an indictment for subornation of perjury, it is necessary that perjury shall have been in fact committed; that the testimony of the witness claimed to have been suborned shall have been false; that it shall have been given by him willfully and corruptly, knowing it to be false; that defendant shall have known or believed that the testimony given would be false; that he shall have known or believed the witness would willfully and corruptly so testify; and that he shall have induced or procured the witness to give such false testimony." 30 Cyc. 1423; United States v. Dennee, 3 Woods, 39, Fed. Cas. No. 14,947; Boren v. United States (C. C. A.) 144 F. 801. The indictment here complies with all these requirements, and we cannot agree with the plaintiff in error that the allegation of the indictment was consistent with a belief on the part of the plaintiff in error that the suborned parties had supposed the statements they were expected to make were to be true.
Nor is the question of the validity of the judgment against the plaintiff in error affected by the fact that the separate indictment against Ivy B. Jividen for perjury was dismissed. The grounds of the dismissal do not appear in the record, and the mere fact that the indictment was dismissed is not inconsistent with the guilt of the plaintiff in error upon either count of the indictment against him.
Nor do we find merit in the contention that the indictment is defective for its failure to set forth in hÊc verba the supersedeas bond, or support for that proposition in any of the cases cited by the plaintiff in error. On the...
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