Smith v. United States

• Citation: 363 F.2d 143
• Decision Date: 13 July 1966
• Docket Number: No. 23344.,23344.
• Parties: Joe SMITH, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

363 F.2d 143 (1966)

Joe SMITH, Appellant, v. UNITED STATES of America, Appellee.

No. 23344.

United States Court of Appeals Fifth Circuit.

July 13, 1966.

Charles D. Rosser, Tuscumbia, Ala., for appellant.

J. O. Sentell, Asst. U. S. Atty., Ben Hardeman, U. S. Atty., Montgomery, Ala., for appellee.

Before BROWN and COLEMAN, Circuit Judges, and DAWKINS, District Judge.

BENJAMIN C. DAWKINS, Jr., District Judge:

Appellant was convicted in the court below under a one-count indictment charging him with perjury, in violation of 18 U.S.C. § 1621. He is here insisting that the evidence adduced before the jury, as to one of the elements of the crime, was insufficient in law to support the verdict.

We are in agreement that the Government failed properly to show one of the essential elements of the crime and hold that the conviction under such circumstances constituted plain error, Rule 52 (b), F.R.Crim.P. Accordingly, we reverse and remand for a new trial.

Appellant had been convicted upon a guilty plea in a state court of second degree burglary and assault with intent to murder, on February 17, 1962, and was sentenced to a term in the state prison. Thereafter he filed a petition for a writ of habeas corpus in the district court asserting alleged illegal detention and denial of his right to the assistance of counsel in the state court proceedings. This petition ultimately was denied.

At the habeas hearing appellant categorically denied that he was consulted or represented by one Starnes, his court-appointed counsel, in the original trial in the state court. It was upon this assertion that the federal grand jury indicted him for perjury.

At the trial the Government called the district Clerk of Court who identified appellant's petition for habeas corpus This was received in evidence as was a certified copy of the transcript of evidence in the hearing on the petition, taken September 24, 1964. Other than the fact that he was presently serving as Clerk and had held office for nearly nine years, no additional testimony was elicited from this witness. He did not testify that he administered an oath to appellant in the habeas hearing.

The Government then called as witnesses W. T. Starnes, appellant's court-appointed counsel at the state trial; Talmadge Fambrough, the county solicitor who had prosecuted appellant; and Judge L. P. Waid, the judge of the state court. Each of them testified that appellant was ably represented by Starnes, who had allowed appellant to plead guilty to second degree burglary only after securing a plea bargain from Fambrough, who agreed to nolle prosequi the original first degree burglary charge. Appellant neither took the stand nor presented any significant defense, and was found guilty as charged.

The perjury statute, 18 U.S.C. § 1621, provides:

"Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall * * * etc., be punished." (Emphasis added)

It is plain that an essential element of the crime of perjury under section 1621 is that the accused shall have taken an oath before giving the alleged false testimony. Proof of the charge requires that sufficient evidence be adduced before the jury upon which it can be found beyond a reasonable doubt that an oath was administered to the defendant by some officer authorized to do so. See e. g., Brooks v. United States, 240 F.2d 905 (5 Cir. 1957); Harrell v. United States, 220 F.2d 516 (5 Cir. 1955).

As noted, in the trial below the transcript of the habeas hearing was offered and received in evidence.¹ However, the only evidence before the jury as to the administration of an oath was the court reporter's usual prefatory statement, "Petitioner, Joe Smith, having been duly sworn, testified as follows: * * *." As indicated, for some reason the Clerk who identified the transcript was not called upon to testify as to whether he was present at the habeas hearing, whether he administered the oath to appellant, or whether he observed anyone else do so. See Meyers v. United States, 84 U.S.App.D.C. 101, 171 F. 2d 800, 812, 11 A.L.R.2d 1 (1948). Moreover, the Government failed to put the court reporter on the stand, although he was present in court transcribing the perjury trial.

The bare statement, "Petitioner, Joe...