Blackmon v. United States

• Decision Date: 29 January 1940
• Docket Number: No. 9042.,9042.
• Citation: 108 F.2d 572
• Parties: BLACKMON v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

108 F.2d 572 (1940)

BLACKMON v. UNITED STATES.

No. 9042.

Circuit Court of Appeals, Fifth Circuit.

January 3, 1940.

Rehearing Denied January 29, 1940.

Thos. Arthur Edwards, of Lake Charles, La., for appellant.

Malcolm E. Lafargue, Asst. U. S. Atty., of Shreveport, La., for appellee.

Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

The conviction was for perjury.¹ The charge against appellant was that while a witness for defendant in a criminal case styled, U. S. v. Neal Cooper, on the docket of the District Court of the U. S., for the Western District of Louisiana, he had on cross-examination, in support of his testimony in chief, sworn falsely to matters material in the criminal trial then and there being held. As charged in the indictment, this was the occasion of the false testimony. In Cooper's trial for the crime of possessing and operating an illicit whiskey distillery and possessing mash, it became a material question, whether a certain copper coil found on Cooper's premises was possessed and used by him as a part of an illicit distillery. The defendant Cooper testified that the copper coil was an old coil belonging to his father. The appellant, called as a witness by the defense testified, that he had seen the copper coil in question in Cooper's smokehouse, prior to Cooper's arrest, and that at that time he had recognized and spoken of the copper coil to Cooper, as being an old coil which had belonged to Cooper's father. Thereupon it became material upon cross-examination, to test, by inquiring why appellant was in Cooper's smokehouse at that particular time, whether in fact he was there.

This is the substance of the false testimony. In support of his statement that he was there, appellant testified that he had gone there for the purpose of purchasing hog meat for his tenants, and then, in response to further questioning, falsely and knowingly swore, that he had then purchased 110 lbs. of hog meat for three of his tenants, Cooper, Speaks and Blackmon, and that he had given 35 lbs. to Cooper, 25 lbs. to Speaks and 50 lbs. to Blackmon, knowing when he gave the testimony that it was false, in that he did not purchase any quantity of meat from Cooper at that time or place for the said tenants, and at no time, gave them the meat, as he falsely said that he did.

Appellant complains here of the trial court's action, in refusing him a continuance for the absence of a material witness and in giving and refusing charges, but he really pitches his appeal on the point that the facts, he was charged with having, and was found to have sworn falsely to, were not material matters within the perjury statute. Urging that the only part of his testimony which was material to the matter at issue in Cooper's case, the guilt or innocence of Cooper, was that to the effect that he was at the smokehouse on the day named and there saw and recognized the copper coil as one belonging to Cooper's father. He insists that the testimony, charged as perjured, that he had purchased meat for, and distributed certain amounts of it to, named tenants, was wholly immaterial. When he made this point below by motion to quash the indictment, the District Judge ruled; that to the main issue in the case, out of which the perjury charge grew, whether defendant Cooper had a still, appellant's testimony that he saw and recognized the coil as an old one belonging to his father, was most material; and this being so, the testimony charged in the indictment as perjured, was also material, because appellant gave it, knowing that the circumstantial details into which he thus entered as to the purchase and distribution of meat to his tenants, tended not only to support him against the cross examination, as to why and whether he was there, but to lend credence to his very material testimony that he did go to the smokehouse and there saw and recognized the coil.

In short, the District Judge thought and said that if, on cross examination, appellant had put forward no reason for being there, his testimony would have lacked the circumstantiality which the details he supplied, gave to it, and he concluded that false swearing is perjury, not only when it is given as to the main issues in the case on trial, but when it is given on cross examination, as to details, fabricated by the witness, knowingly and falsely, in order to strengthen and support his testimony given on those issues.

We think the District Judge was right, and that appellant in his attack upon the indictment and the proof under it, fails to distinguish between the materiality of the testimony for the falsity of which he was convicted, if offered as an independent fact, and its use by him on cross examination to support and bolster his testimony in chief. None of the cases appellant cites are contrary. Though all hold that the testimony must be both false and material, none hold that testimony given by a witness on cross examination to support his statement in chief, is immaterial under a perjury charge merely because if offered in chief, it would not have been material.

The materiality required is not as to any particular issue in the case, but as to the trial as a whole, that is, materiality is determined by whether the false testimony was capable of influencing the tribunal on the issue...