Allen v. United States

• Decision Date: 27 February 1912
• Docket Number: 1,070.
• Citation: 194 F. 664
• Parties: ALLEN v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

194 F. 664

ALLEN v. UNITED STATES.

No. 1,070.

United States Court of Appeals, Fourth Circuit.

February 27, 1912

Walter S. Tipton and J. C. Buxton (Watson, Buxton & Watson, on the brief), for plaintiff in error.

A. L Coble, Asst. U.S. Atty. (A. E. Holton, U.S. Atty., on the brief), for the United States.

Before PRITCHARD, Circuit Judge, and DAYTON and ROSE, District Judges.

ROSE District Judge.

The plaintiff in error was the defendant below. He will be called the defendant. The defendant in error will be referred to as the government. The circumstances are peculiar. A year before the present indictment was returned, the defendant and one Dickins had been jointly indicted in the court below for (1) making counterfeit $20 gold pieces; (2) having such coins in their possession with intent to defraud; and (3) passing or attempting to pass some of such coins on particular individuals.

To such indictment Dickins pleaded guilty. The defendant stood his trial. It was proved that the defendant and Dickins lived close together in Carroll county, Va. They had been for some time closely associated. The defendant had in writing ordered machinery which could be used to make counterfeit coins. He had paid for this machinery by his personal check. Dickins had invented a wagon brake. The defendant had a half interest in the patent therefor. In February, 1910, they came together to Winston-Salem, N.C. Their avowed purpose was to sell rights under the brake patent. While in Winston-Salem Dickins passed or attempted to pass two of the counterfeit coins, one upon a prostitute, the other upon a hack driver. As a result of his offering one of the coins to the latter he was arrested. At the time he attempted to pass these coins, and when he was arrested, the defendant was waiting for him at a railroad station in Winston-Salem. There were many other facts and circumstances offered in evidence. Some of these tended to show that the defendant and Dickins were acting in concert. There was testimony that some man who answered more or less closely to the description of the defendant had after the arrest of Dickins made an unsuccessful attempt to recover from the prostitute the coin which had been passed upon her. The defendant took the stand in his own behalf. He admitted everything to which those government witnesses, who had positively identified him, had sworn. He gave an explanation of all such circumstances consistent with his lack of any knowledge of or participation in any illegal act of Dickins. He denied that he had ever visited the prostitute in question, or had ever had any communication of any kind with her. He was acquitted.

About 12 months afterwards, the indictment now before us was found. By it he is charged with perjury in having sworn at his trial for counterfeiting that he was not guilty of the counterfeiting charge; that he did not have the counterfeit coins in his possession, nor did he attempt to pass them; that he had nothing to do with the counterfeit money that Dickins made and passed; that he did not know that Dickins had in his possession in Winston-Salem a counterfeit coin; that he did not make or aid and abet Dickins in the manufacture of counterfeit coins; and that he was in Winston-Salem on February 10, 1910, only for the purpose of selling a patent wagon brake. At the trial of the defendant for perjury, the testimony on both sides was in all substantial respects the same as that which had been given when he was called upon to answer the indictment for counterfeiting. It is true that the government did prove two additional attempts of Dickins to pass the counterfeit coins. When making one of these attempts, it was shown that Dickins had a companion. Such companion did not look unlike the defendant, but the witness would not swear that it was in fact the defendant. The defendant was convicted.

A number of assignments of error are made. The most important are intended to raise the questions (1) whether such a prosecution can be maintained at all; and (2) whether the defendant can be properly convicted when no witness has testified that what the defendant had sworn in the first trial was false, and when it is not shown that the defendant has ever in writing or otherwise made any representation necessarily inconsistent with the truthfulness of the evidence for the giving of which he was put upon his trial.

The defendant says that he has been twice put in jeopardy for the same offense. With this contention we cannot agree. Passing or trying to pass in February counterfeit coins upon various residents of Winston-Salem is not the same offense as forswearing one's self in June in the United States District Court at Greensboro. State v. Vandemark, 77 Conn. 201, 58 A. 715, 1 Ann.Cas. 161; State v. Williams, 60 Kan. 838, 58 P. 476; Hutcherson v. State, 33 Tex.Cr.R. 67, 24 S.W. 908; State v. Bevill, 79 Kan. 524, 100 P. 476, 131 Am.St.Rep. 345, 17 Ann.Cas. 753; State v. Cary, 159 Ind. 504, 65 N.E. 527; People v. Albers, 137 Mich. 679, 100 N.W. 908; State v. Caywood, 96 Iowa, 372, 65 N.W. 385. In every one of these cases, the defendant was held properly convicted of perjury while testifying in his own behalf when under prosecution for an offense of which he was acquitted. It is true that the right to convict for perjury committed under such circumstances has been denied. U.S. v. Butler (D.C.) 38 F. 498; Cooper v. Commonwealth, 106 Ky. 909, 51 S.W. 789, 59 S.W. 524, 45 L.R.A. 216, 90 Am.St.Rep. 275; Petit v. Commonwealth (Ky.) 57 S.W. 14.

But in none of those cases was it held that the prosecution for perjury put the defendant a second time in jeopardy for the same offense. Indeed, Judge, afterwards Mr. Justice, Brown who decided United States v. Butler, supra, pointed out that it was impossible to hold that the defendant was being tried twice for the same crime. If that were true, a defendant testifying in his own behalf in a criminal trial could safely swear to anything he pleased. He could never be punished for perjury so committed. Autre fois convict is as conclusive a plea as autre fois acquit. But the learned judge was of opinion that, wherever the nature of the perjury alleged was such that the real issue of fact to be passed upon by the jury sworn in the perjury case was necessarily the same which had been already decided by the jury in the first case adversely to the contention upon which the government must stand in the perjury prosecution, the matter was res adjudicata. In spite of the great weight which the sound learning and broad wisdom of Mr. Justice Brown give to any of his judicial deliverances, his reasoning in this case has failed to secure general acceptance. The highest courts of Connecticut, Indiana, Michigan, Iowa, and Kansas have expressly declined to follow it. It has been adopted by the Court of Appeals of Kentucky. The reasons why a verdict of acquittal in a criminal case should not necessarily bar a subsequent prosecution of the defendant for perjury committed by him when testifying as a witness in his own behalf are forcibly stated by the Supreme Court of Michigan in People v Albers, supra. As there argued, public policy may require the recognition of the right sometimes to institute such prosecution. If so...