Boren v. United States

• Decision Date: 05 February 1906
• Docket Number: 1,209.
• Citation: 144 F. 801
• Parties: BOREN v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

144 F. 801

BOREN v. UNITED STATES.

No. 1,209.

United States Court of Appeals, Ninth Circuit.

February 5, 1906

The plaintiff in error was jointly indicted with Harry W. Miller and Frank E. Kincart for subornation of perjury. The plaintiff in error was tried separately and was found guilty of the first, second, third, and fifth counts of the indictment. The counts are all similar, differing only in the names of the persons suborned to perjury. The first count charges that the accused 'on the fourteenth day of November, in the year of our Lord one thousand nine hundred and four, at Redding, in the county of Shasta, state and Northern district of California, then and there being, did then and there unlawfully, willfully, knowingly, and feloniously procure, instigate, and suborn one John M. Layton to appear and take an oath before one Frank M. Swasey that a certain declaration and affidavit by him then and there a matter in which the laws of the United States authorize an oath to be administered-- that is to say, a sworn statement-- for the purchase of timber and stone lands described therein as the northwest quarter of section eight, township thirty-two north, of range eight west, in the district of lands subject to sale at Redding, California, and said Frank M. Swasey was then and there an officer competent to administer said oath-- that is to say, the register of the United States land office at Redding-- and that, in accordance with said procurement, instigation, and subornation, the said John M. Layton did appear before the said Frank M. Swasey and take an oath that said declaration and affidavit was true; and that the said Harry W. Miller Frank E. Kincart, and William H. Boren, and each of them, did then and there unlawfully, willfully, knowingly, and feloniously procure, instigate, and suborn said John M Layton willfully and contrary to his oath to state and subscribe in said declaration and affidavit a certain false and untrue material statement that he, John M. Layton, had personally examined the lands mentioned in said declaration and affidavit, and that he did not apply to purchase the land above described on speculation, but in good faith to appropriate it to his own exclusive use and benefit, and that he had not directly or indirectly made any agreement or contract, or in any way or manner, with any person or persons whomsoever, by which the title he might acquire from the government of the United States may inure in whole or in part to the benefit of any person except himself, which statement he, John M. Layton, at the time of stating and subscribing the same, did not believe to be true and knew to be untrue, in this; that he, John M Layton, had not personally examined said lands and here theretofore entered into a contract for the sale of said land to the Washington Mill & Lumber Company. And that the said Harry W. Miller, Frank E. Kincart, and William H. Boren, and each of them, at the time of the aforesaid procurement, instigation, and subornation, well knew that the aforesaid statement was a false and untrue material statement, and well knew that said John M. Layton did not believe the same to be true.'

W. S. Burnett, Charles Page, Edward J. McCutchen, Samuel Knight, and Frank V. Cornish, for plaintiff in error.

Robert T. Devlin and Alfred P. Black, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

GILBERT Circuit Judge, after stating the case as above, .

It is contended that the indictment is fatally defective for want of proper assignment of perjury. No objection was made in the trial court to the indictment by demurrer, motion to quash or in any other manner until after the verdict. Thereby the plaintiff in error waived all objections which run to the mere form in which the elements of crime are charged, or to the fact that the indictment is unartificially drawn. Dunbar v. United States, 156 U.S. 186 15 Sup.Ct. 325, 39 L.Ed. 390. The question, then, is whether some substantial element of the crime charged has been omitted. The essential elements are: (1) that the testimony of the suborned witness must be false and known to be false by him, and the truth of the matter so falsely testified to must be set forth; (2) the suborner must know or believe that the testimony of the witness about to be given will be false, and he must know or intend that the witness is to give the testimony corruptly or with the knowledge or belief of its falsity. Stewart v. State of Ohio, 22 Ohio St. 477; United States v. Dennee, 3 Woods, 39 F. Cas. No. 14,947. The indictment in the present case in substance, we think, meets those requirements. It alleges in the first count, and all the other counts are similar, that the defendants 'willfully, knowingly, and feloniously suborned John M. Layton to appear and take an oath to the declaration and affidavit' (describing it), and that the said John M. Layton did take an oath that such declaration and affidavit was true. It alleges that the 'defendants willfully, knowingly, and feloniously procured and suborned said John M. Layton willfully and contrary to his oath to state in said declaration a certain false and untrue material statement,' etc., setting forth the statement, 'which statement he, John M. Layton, at the time of stating and subscribing the same, did not believe to be true and knew to be untrue, in this: that he, John M. Layton, had not personally examined said lands and had, theretofore, entered into a contract for the sale of said lands to the Washington Mill & Lumber Company,' and that each of the defendants at the time of the aforesaid procurement, instigation, and subornation well knew that the aforesaid statement was a false and untrue material statement, and well knew that said John M. Layton did not believe the same to be true. In brief, it is charged in the indictment that John M. Layton committed perjury. All of the essential elements of the perjury are set forth-- the false swearing, the untruth of the statements sworn to, and the truth in regard to the matters concerning which such false oath was given. It also charges that the defendants willfully, knowingly, and feloniously procured him to make the oath that they knew and understood that the statement was false, and knew that he did not believe the same to be true. The guilty knowledge on the part of the suborners is thus set forth, together with their knowledge and intent that the witness should make the affidavit corruptly and with knowledge or belief of its falsity. The objection that there is no allegation that Layton did swear to the statements recited in the affidavit is not well taken, for it is distinctly charged that the said John M. Layton did appear before the said Frank M. Swasey and did take an oath that said declaration and affidavit was true. The decision of this court in Bartlett v. United States, 106 F. 884, 46 C.C.A. 19, relied upon by plaintiff in error, is not in point. In that case the indictment was held defective for failure to allege the truth of the matter...