Cohen v. United States

• Decision Date: 02 July 1928
• Docket Number: No. 341.,341.
• Citation: 27 F.2d 713
• Parties: COHEN v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

27 F.2d 713 (1928)

COHEN v. UNITED STATES.

No. 341.

Circuit Court of Appeals, Second Circuit.

July 2, 1928.

David Haar, of New York City (Simon Fleischmann, of Buffalo, N. Y., of counsel), for appellant.

Charles H. Tuttle, U. S. Atty., of New York City (Thomas T. Cooke, of New York City, of counsel), for appellee.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

L. HAND, Circuit Judge (after stating the facts as above).

The chief question is the charge of the judge on the issue of subornation. Whether it was a matter on which he was called upon to charge at all we have not to decide. The bankrupts corroborated each other in fact as to the subornation, and, if the judge had said nothing on the subject, the point might have arisen whether the doctrine requires more than that corroboration is necessary if the case is to go to the jury at all. In fact, he went further and charged them that no corroboration was necessary as to the subornation. If this is wrong in law, we cannot treat it as harmless. While it is extremely improbable that the jury should in fact have believed one bankrupt and not the other, the charge was equivalent to saying that they might wholly ignore one. This we think would have been an improper instruction, even though the judge need have said nothing on the subject. Thus it seems to us that the point was introduced into the case and must be decided.

It is, of course, well settled that the perjury must be proved by two witnesses or by one with corroboration, U. S. v. Wood, 14 Pet. 430, 10 L. Ed. 527; and this is also true in cases of subornation, Hammer v. U. S., 271 U. S. 620, 46 S. Ct. 603, 70 L. Ed. 1118. It is a doctrine alien to the common law, imported from ecclesiastical, and eventually from civil, law procedure, like the same rule in treason. U. S. v. Robinson (D. C.) 259 F. 685. Until its abolition in 1640, Star Chamber had in practice had exclusive jurisdiction over perjury, and its procedure was taken from the ecclesiastical courts. Wigmore, § 2040. There were practical reasons why the doctrine should be taken over, along with the jurisdiction, which were later rationalized into the notion that one oath would do no more than balance the other. Perhaps, too, the fact that perjury was an offense cognizable by spiritual courts may have contributed. Nevertheless, Russell (volume 1, p. 478) says that it never was the practice to extend it beyond the assignments of perjury, and this was recently decided in Atkinson v. State, 133 Ark. 341, 202 S. W. 709. We can see no reason not to accept the gloss, made in ignorance of its historical origin, as a proper limitation in application. The doctrine itself has indeed a rational basis when applied to mere recantations, though it must be owned that, if extended to the oath of another than the perjured witness, it is hard to justify in a court of common law.

The point now at bar was specifically reserved in Hammer v. U. S., but, so far as we can find, has been uniformly ruled in favor of the prosecution when it has arisen. Com. v. Douglass, 5 Metc. (Mass.) 241; State v. Waddle, 100 Iowa, 57, 69 N. W. 279; Boren v. U. S., 144 F. 801 (C. C. A. 9); U. S. v. Thompson, 31 F. 331 (C. C.). In People v. Evans, 40 N. Y. 1, to be sure, some of the language does look the other way;...