Clayton v. United States

• Decision Date: 14 November 1922
• Docket Number: 1966.
• Parties: CLAYTON v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

284 F. 537

CLAYTON v. UNITED STATES.

No. 1966.

United States Court of Appeals, Fourth Circuit.

November 14, 1922

W. S Wysong, of Webster Springs, W. Va., and J. S. Horan and B. J Pettigrew, both of Charleston, W. Va., for plaintiff in error.

J. N Kenna, Asst. U.S. Atty., of Charleston, W.Va. (Elliott Northcott, U.S. Atty., of Huntington, W. Va., on the brief) for the United States.

Before KNAPP and WOODS, Circuit Judges, and WEBB, District Judge.

KNAPP Circuit Judge.

At a term of the court below held at Webster Springs on the 30th of August, 1921, plaintiff in error, herein called defendant, was summoned before the grand jury and asked certain questions, namely, whether he had purchased any whisky or intoxicating liquor from any person in the Southern district of West Virginia, between January 16, 1920, and August 30, 1921, whether he had had any intoxicating liquor in his possession during that period, and whether during the same period he had been intoxicated. He answered each of these questions in the negative, except admitting that he had on one occasion found on the road a small bottle containing about half a pint of liquor. Two days later he was indicted for perjury. He was tried at Charleston in the following November, and upon conviction sentenced to imprisonment for a year and six months and to pay the costs of prosecution. The indictment alleges that defendant was asked other questions than those above recited, but no proof was offered at the trial to show that such other questions were in fact put to him.

Error is assigned because the court overruled a demurrer and motion to quash, but, as the grounds upon which the demurrer and motion were based nowhere appear of record, the assignment fails to present a reviewable question. In the brief of counsel, however, certain objections are specified which we may here take occasion to notice. It is said in the first place that the indictment is duplicitous, because all the questions and answers on which the charge of perjury is predicated are grouped in one count. But this contention goes to the form rather than to the substance of the averments, and cannot be allowed to prevail, especially as it is not perceived that any prejudice resulted to defendant. The accepted rule of law on this point is laid down in 30 Cyc. 1439, as follows:

'An indictment for perjury may embrace in a single count all the particulars in which defendant is alleged to have sworn falsely; but each fact sworn to should be stated in distinct and separate assignments, and each traversed, so that if either assignment is proved the indictment will be sustained.'

It is further argued that the indictment is defective, 'because it does not properly designate the court, with proper averments as to his official or judicial capacity. ' For answer we need only quote the following provisions of section 5396 of the Revised Statutes (section 1687 of the Compiled Statutes):

'In every presentment or indictment prosecuted against any person for perjury, it shall be sufficient to set forth the substance of the offense charged upon the defendant, and by what court, and before whom the oath was taken, averring such court or person to have competent authority to administer the same, together with the proper averments to falsify the matter wherein the perjury is assigned.'

Whether the proof showed that an oath was administered to defendant by a person of 'competent authority,' or administered to him at all, is another question. The indictment is not defective in that respect.

Other objections to the indictment involve substantially the same question as is presented by the refusal of the court, at the close of the testimony, to grant defendant's motion for a directed verdict, and that question now will be considered.

In prosecutions for perjury it has long been settled that not only must the guilt of the accused be established beyond reasonable doubt, as in other criminal cases, but that the falsity of the matter sworn to by him must be proved by direct and positive evidence. Thus, in Allen v. United States, 194 F. 664, 668, 114 C.C.A. 357, 39 L.R.A. (N.S.) 385, this court quotes with approval the following statement of the rule in 30 Cyc. 1452:

'Positive and direct evidence is absolutely necessary in a perjury case. Circumstantial evidence standing alone is never sufficient.' Moreover, where oral testimony exclusively is relied upon to prove the perjury charged, there must be two witnesses, or one witness corroborated by circumstances independently proven. United States v. Wood, 39 U.S. (14 Pet.) 430, 439, 10 L.Ed. 527; 30 Cyc. 1452.

In the case at bar no attempt was made to prove by 'positive and direct evidence' that defendant made false answers to the first two questions set out in the indictment, namely whether he had procured any...