(1922) State v. Cerfoglio
| Decision Date | 05 April 1922 |
| Docket Number | 2501. |
| Citation | 205 P. 791,46 Nev. 332 |
| Parties | STATE v. CERFOGLIO. |
| Court | Nevada Supreme Court |
Appeal from District Court, Washoe County; Thomas F. Moran, Judge.
A Cerfoglio was convicted of perjury, and he appeals. Affirmed.
Frame Morgan & Raffetto and M. B. Moore, all of Reno, for appellant.
L. B Fowler, Atty. Gen., Robert Richards, Deputy Atty. Gen., and L. D. Summerfield, Dist. Atty., of Reno, for the State.
An order was heretofore entered affirming the judgment in this case, for the reason that no bill of exceptions had been made a part of the record. 201 P. 322. Thereafter counsel for the state stipulated that a bill of exceptions had been duly settled, and that the order affirming the judgment might be vacated and the case considered upon its merits, which was accordingly ordered. This is an appeal after conviction upon a charge of perjury, alleged to have been committed during the trial of appellant for a violation of the prohibition statute.
The testimony given by appellant, and which constitutes the basis of this prosecution, is to the effect that on August 26 1920, at the Europa Hotel, in Reno, Washoe county, several men came into the bar in said hotel and asked for glasses with soda, and that one of them took a bottle from the inside of his coat pocket and filled the glasses with the contents thereof. A verdict of guilty was returned by the jury. In apt time, a motion for a new trial was made. The appeal is from the order denying the motion for a new trial, and from the judgment.
The first error relied upon goes to an alleged variance between the allegation in the information and the proof. The information charges that the alleged perjured testimony was given on October 6, 1920, whereas it was in fact given on the 5th day of that month. In support of the contention, we are directed to 22 Cyc. 314, where we find the following:
The authority invoked is not in point. The charge of perjury is not based on a record or any kind of a writing, but upon oral testimony given in open court in a trial before a jury. By express statutory regulation, the precise time at which an offense was committed need not be alleged, except where or when the time is a material ingredient of the offense. Stats. 1919, § 205, p. 417. Such is the general rule in perjury cases. 30 Cyc. 1441; Dill v. People, 19 Colo. 469, 36 P. 229, 41 Am. St. Rep. 254. It is not suggested that the date of the alleged perjury is a material ingredient of the offense.
It is also asserted that the trial court erred in admitting in evidence testimony tending to show the commission of three separate and distinct crimes by the defendant, other than that for which he was on trial, to wit: (1) The procuring of witnesses to testify during the trial on the charge of violating the prohibition statute to the state of facts then testified to by the defendant, and which it is charged constituted perjury on the part of the defendant; (2) testimony tending to show that appellant had procured the departure from the state of two witnesses for the prosecution, so as to be absent during the trial of appellant upon the perjury charge; and (3) proof tending to show the guilt of defendant of having liquor unlawfully in his possession in the place wherein he was convicted of having violated the prohibition statute.
Relying upon the general rule that evidence of independent crimes cannot be admitted, except to show, among other things, motive and intent (State v. McFarlin, 41 Nev. 486, 172 P. 371), it is said that in the instant case none of these things was an issue. We cannot accept this statement. We think intent and corrupt motive are the very foundation of the crime of perjury. There can be no perjury, nor subornation of perjury, under our statute, unless the elements of willfulness and corruption enter into the act. R. L. 1912, § 6350. Had not the information charged willfulness and corruption on the part of the appellant in giving the alleged false testimony, it would not have charged a crime, and had the court failed to cover these elements in its instructions, no doubt counsel would be basing error thereon in this appeal. Hence we think the evidence tending to show willful and corrupt false swearing on the part of the appellant was proper and competent, because it tended to establish one of the essential elements of the crime itself. It is said:
We think the second contention equally devoid of merit. It is now a well-recognized rule that evidence tending to show that the accused endeavored to prevail upon a witness for the state to abscond is relevant to the main issue. 12 Cyc. 398; Blair v. State, 72 Neb. 501, 101 N.W. 17.
As to the third point, the evidence showing defendant's possession of jackass brandy was a part of the main case, as it was a circumstance tending to show the falsity of testimony given by him. If he did not have jackass brandy in his possession at the time, he could not be guilty of perjury; hence the necessity of showing his possession of the brandy.
It is also insisted that the court erred in overruling defendant's objection to the introduction in evidence of the testimony of the witnesses Albert and Tada, given by them in behalf of appellant in the case wherein he was on trial charged with violating the prohibition statute. To sustain the contention, it is said that we have a statute prescribing the conditions under which testimony taken upon the trial of a case may be used upon a retrial, and that it controls in this case. We cannot accede to the contention. The purpose of the statute mentioned never contemplated the situation before us. The purpose of offering in evidence upon the trial of this case the testimony given by Albert and Tada in the other trial was to show that their testimony at that time was the same as that given by the defendant therein, and that it was false and given at the solicitation of appellant. In other words, it was to lay the foundation for proving that appellant swore falsely in that case, and that he did it willfully and corruptly. The evidence was perfectly competent for that purpose.
It is also said that the evidence is insufficient to support the verdict; that there is not sufficient competent evidence to sustain it. Reliance is had to support this view upon the proposition that the falsity of the testimony which it is charged was perjury must be shown by at least two witnesses, testifying directly and positively, or by the direct and positive evidence of one witness, corroborated by facts and circumstances; and our attention is called to 30 Cyc. pp. 1452, 1453; People v. Chadwick, 4 Cal. App. 63, 87 P. 384-389; People v. Porter, 104 Cal. 415, 38 P. 88; People v. Maxwell, 118 Cal. 50, 50 P. 18. In 30 Cyc. p. 1452, we find the following:
"Positive and direct evidence is absolutely necessary in a perjury case; circumstantial evidence standing alone is never sufficient."
We cannot say that we disagree with the rule contended for, but rather as to its proposed application. Does it apply to the situation in hand? This necessarily leads to an inquiry as to the true significance of the rule as stated, and as to what situation it is meant to apply. For an understanding of the type of cases to which the rule applies, we must resort to a consideration of its origin, and just what was really meant by it as first expressed. The rule is supposed to have had its origin in the case of The Queen v. Muscot, 10 Mod. Rep. 193. Extracts from this decision are given in many of the old text-books, but none of them conveys a complete idea of what was really decided. The Supreme Court of the United States, in U.S. v. Wood, 14 Pet. 430, 10 L.Ed. 527, quotes from various authors who, in support of their text, cite the authority mentioned, but the court gives only fragments of what was supposed to have been said therein. Evidently the decision itself was not at hand.
In view of the fact that the case was decided in 1712, long prior to the writing of any of the works cited in U.S. v. Wood, we think we can with profit quote from the opinion:
What is the real significance of this language? It is apparent that the court was endeavoring to distinguish between the weight to be attached to two opposing witnesses in two different situations; that is, as between a case in which there is a prosecution for...
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State v. Cerfoglio
...Court, Washoe County; Thomas F. Moran, Judge. On rehearing. Reversed and remanded, with directions to dismiss. For former opinion, see 205 P. 791. Frame & Raffetto, of Reno, T. J. D. Salter, of Winnemucca, and M. Moore, of Reno, for appellant. L. B. Fowler, Atty. Gen., Robert Richards, Depu......