Com. v. Giles

• Decision Date: 13 January 1966
• Citation: 213 N.E.2d 476,350 Mass. 102
• Parties: COMMONWEALTH v. Frank S. GILES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 476

213 N.E.2d 476

350 Mass. 102

COMMONWEALTH v. Frank S. GILES.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 4, 1965.

Decided Jan. 13, 1966.

Samuel Hoar, Jr., Sp. Asst. Atty. Gen. (Warren K. Kaplan, Asst. Atty. Gen. with him), for the Commonwealth.

Donald J. Cregg, Lawrence, for defendant.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL and REARDON, JJ.

CUTTER, Justice.

The defendant was indicted upon two counts alleging perjury before the special commission created by Res.1962, c. 146 (the Crime Commission). The first count set out that he 'being required by law to take an oath * * * and being duly sworn did willfully swear * * * falsely in a matter relative to which such oath * * * was required wherein the question was asked in substance * * * whether * * * [he] had any connection with the Nessex Engineering Company [Nessex] in the period * * * since it was formed * * * and to this * * * [he] did willfully and corruptly testify * * * in substance * * * that he had no personal or financial connection with Nessex * * * from the date it was formed to the present, wellknowing that his said testimony was false.' ¹

A judge, sitting without a jury, found the defendant guilty on both counts. Execution of sentence was suspended pending a determination of issues of law raised by a report to this court under G.L. c. 278, § 30, on the basis of which the facts are stated.

On February 5, 1964, the defendant voluntarily appeared before the Crime Commission, and was informed that the commission had been conducting an investigation of Nessex, Stuart Engineering Associates, and others. 'He was asked 'with reference to either the investigation in general or the subject matter of the investigation as pertains to those two corporations and the two individuals if (he) desired to make * * * some statements.''

'With reference to Nessex * * * he was asked * * * what his connection with that company was 'if any, in the period of time since it was formed to the present.' To this question he answered: 'I have had no personal or financial connection with Nessex * * * from the day it was formed to the present.'' He was also asked whether he had 'had any communications or dealings of any nature with Nessex,' and he answered, 'I have not personally, no, not as an individual, no.' In answer to the question, 'At any point between the formation of Nessex and the present time, did you receive any amounts of money from Nessex?', he answered that he had 'never received a salary or commission or money from Nessex for any other purpose than a loan * * * received from Nessex,' about 1956. Evidence relevant to whether these answers were true is summarized in the margin. ²

The trial judge's report presents in unduly general terms 'questions of law' concerning G.L. c. 268, § 1. ³ Greater specification of the issues would have been appropriate. We consider the issues, however, as if the trial judge had stated them as follows:

1. Could the indictment properly be brought under the second clause of the first sentence of c. 268, § 1 (see fn. 3, the words following the letter [C] hereinafter referred to as 'the second clause'), which must be distinguished from the first part of that sentence (hereinafter referred to as the 'first clause')? 2. Was the indictment defective? 3. Was direct proof of the defendant's knowledge of the falsity of his statements and of his intentional false testimony required, or could his knowledge and intention be inferred from other facts in evidence? To deal with the first and second issues requires consideration of what must be alleged and proved under the second clause.

1. The defendant contends that the indictment should have been under the first clause (see fn. 3, language following points [A] and [B]). Both counts were stated in substantially the words of the second clause (see fn. 3, at points [C] and [D]).

The first sentence of c. 268, § 1, has been in essentially its present form since 1902. See R.L. c. 210, § 1 (1902). The Report of the Commissioners for Consolidating and Arranging the Public Statutes (see p. XVIII, and pp. 1759, 1766) combined in one section two separate sections of the Public Statutes (1882), viz. c. 205, § 1 (as amended by St.1892, c. 123), and § 2. ⁴ These sections in the 1882 revision were in substantially the same form as in Rev.Sts. c. 128, §§ 1, 2 (1836), which are set out in the margin. ⁵ See also Gen.Sts. c. 163, §§ 1, 2 (1860). Section 1 of the 1836 revision was based on St.1812, c. 144, § 1. ⁶ Section 2 arose from St.1829, c. 56. ⁷ The Commissioners appointed to revise the General Statutes, see their 1835 report, Part IV, p. 23, proposed (1) to put the earlier statutes in two adjacent sections and that what became Rev.Sts. c. 128, § 2 (see fn. 5), should read, 'If any person, of whom an oath * * * shall be required, by the provisions of any act of incorporation, or by any general law of this Commonwealth, shall wilfully swear * * * falsely, in regard to any matter * * * respecting which such oath * * * is required, such person shall be deemed guilty of perjury * * *' (emphasis supplied). The italicized words were omitted before the revision was enacted (see fn. 5). ⁸ We regard the very substantial broadening of the language of the Commissioners' draft of § 2 as showing the legislative intention that all wilfully false (and relevant) statements under oath, otherwise than in or ancillary to judicial or adjudicatory proceedings, ⁹ were to constitute perjury, where the oath reasonably should be regarded as 'required by law.' We find substantial support for this view in the discussion of Pub.Sts. c. 205, § 2, in Avery v. Ward, 150 Mass. 160, 162-163, 22 N.E. 707, dealing with an oath concerning a statement of a loss under a fire insurance policy. ¹⁰

The first sentence of G.L. c. 268, § 1(fn. 3), thus is the outgrowth of two separate lines of statutory development, viz. (a) sections defining common law perjury in court, in adjudicatory proceedings (see Jones v. Daniels, 15 Gray, 438, 439-440, dealing with testimony before fence-viewers; Commonwealth v. Bessette, 345 Mass. 358, 187 N.E.2d 810, a contested proceeding under the civil service statutes), and in proceedings ancillary to judicial proceedings, and (b) sections dealing with false statements under oath where there was statutory or other legal justification for requiring an oath in particular circumstances. The language of the second clause (fn. 3, at points [C] and [D]), like that of its predecessors (see e. g. fn. 5), is sufficiently broad to include perjury in hearings before legislative and investigative bodies. See G.L. c. 3, § 27 (authorizing members of a General Court committee to 'administer oaths to persons examined before such committee'), and § 28.

The Crime Commission (Res.1962, c. 146) was 'authorized to investigate, find facts * * * and file reports which may be used as a basis for legislative action. It * * * [lacked] power to apply the law or to prescribe punishment.' Commonwealth v. Benoit, 347 Mass. 1, 6, 196 N.E.2d 228, 231. Sheridan v. Gardner, 347 Mass. 8, 12-13, 196 N.E.2d 303, app. dism. 379 U.S. 647, 85 S.Ct. 612, 13 L.Ed.2d 552. Gardner v. Massachusetts Turnpike Authy., 347 Mass. 552, 558-559, 199 N.E.2d 186. See Gardner v. Massachusetts Turnpike Authy., 348 Mass. 532, 204 N.E.2d 887. By Res.1962, c. 146, it might 'require * * * testimony under oath,' and apply for court orders compelling 'the giving of testimony under oath * * * in furtherance of any investigation under * * * [the] resolve.' Proceedings before the commission were not 'in a judicial proceeding' and also were not 'in a proceeding in a course of justice' within the meaning of the first clause (fn. 3, at points [A] and [B]). As has been indicated above, Avery v. Ward, 150 Mass. 160, 163 (fn. 10), 22 N.E. 707, asserted that the insurance claim oath there considered was not in a 'proceeding in a course of justice,' thus in efect recognizing that this term dealt only with adjudicatory proceedings comparable to those discussed in Jones v. Daniels, 15 Gray, 438. The Crime Commission's hearings were investigative and not adjudicatory. Thus perjury in the course of them could properly be reached only under the second clause. We hold that when the defendant was examined before the commission under oath, he was then 'required by law to take an oath' and could be prosecuted under the inclusive language of the second clause (see fn. 3 at point [C]).

We reach this conclusion because of the breadth of the statutory language. The ordinary meaning of that language would put any person on notice that his conduct will be criminal if he wilfully lies under oath before a body such as the Crime Commission. That such language was made broad intentionally is abundantly confirmed by the 1835-1836 revision of the earlier provisions of St.1829, c. 56. The second clause (fn. 3 at points [C] and [D]) cannot properly be construed as meaning only what the 1829 statute said, but must be given the interpretation which naturally follows from its words as broadened in 1836. Although the second clause is broad enough to include offences covered by the first clause, in view of the 1902 combination of the two clauses in a single sentence, we construe the second clause as dealing with perjury not covered by the first clause. None of the later revisions of component parts of what is now G.L. c. 268, § 1, leads us to any different conclusion. ¹¹

The defendant relies considerably upon Commonwealth v. Louis Constr. Co. Inc., 343 Mass. 600, 606-607, 180 N.E.2d 83, where one Recine was indicted (as the original papers show) for allegedly false testimony 'in a proceeding in the course of justice before a special [investigating] committee of the Senate.' The indictment obviously was under the first clause (see fn. 3 at point [B]). This court reversed a conviction and held that it did not appear how the one false answer ...