Commonwealth v. Bradley.

• Court: Pennsylvania District and County Court
• Writing for the Court: Fox, J.
• Citation: 17D.&C.571
• Docket Number: Sept. Sess., 1932, No. 356.
• Decision Date: 14 December 1932
• Parties: Commonwealth v. Bradley.

Page 571

17 D.&C. 571

Commonwealth v. Bradley.

Sept. Sess., 1932, No. 356.

The Judicial Districts of Pennsylvania.

December 14, 1932.

Perjury — Evidence — Requisites — Two witnesses — Corroborated testimony of one witness — Affidavit by defendant admitting falsity of statement — Sufficiency as corroboration.

1. A conviction on an indictment charging perjury may not be had upon the evidence of one witness alone, but the offense must be proven by the testimony of two credible witnesses or by the direct testimony of one witness with corroboration of the material circumstances by other witnesses.

2. A conviction for perjury in making an affidavit and giving testimony before an alderman as to the purchase of intoxicating liquor from another may not be sustained, where the only evidence produced by the Commonwealth is the direct testimony of the alleged vendor in denial of the transaction and a statement, signed and sworn to by defendant, to the effect that the affidavit and testimony before the alderman were false.

Motion for new trial. Q.S. Dauphin Co.

New trial granted. Hargest, P.J., dissenting.

Carl B. Shelley, assistant district attorney, for Commonwealth.

Sidney Handler, for defendant.

FOX, J., December 14, 1932.

We have before us a motion for a new trial based upon the following reasons:

"1. The verdict is against the law.

"2. The verdict is against the evidence.

"3. The verdict is against the weight of the evidence.

"4. The Commonwealth failed to prove the falsity of the matter on which the perjury was assigned by the testimony of a credible witness and corroborative evidence aliunde which tended to show the perjury independent of any declaration or admission of the defendant and the person to be corroborated.

"5. The Commonwealth failed to prove any facts tending to show the falsity of the matter on which the perjury was assigned in corroboration of the testimony of a credible witness."

In the trial of the case, it was admitted by the defendant that on April 13, 1932, he made an affidavit before Alderman Charters, of the City of Harrisburg, viz., that he had purchased intoxicating liquor from one Russel Alexander in the City of Harrisburg, and that, on April 19th, at the hearing before the said alderman of the charge of selling intoxicating liquor against the said Alexander, he testified he purchased such liquor from the said Alexander. The Commonwealth produced evidence that the defendant, on May 26, 1932, made a statement to Solomon Hurwitz, Esq., in the jail of Dauphin County, the defendant being then in jail on a charge other than the one in the instant case; the latter at that time had not been made. The statement was at once reduced to writing, signed and sworn to by the said defendant before a notary public, the substance of which writing was that the said affidavit made before the alderman in the information and the testimony given by this defendant at the hearing of the said Alexander were not true but were false. The written statement was admitted in evidence. Riley Shope, the notary public, was also called and testified that he, as notary public, took the affidavit as shown on the said statement. Russel Alexander, the only direct witness for the Commonwealth, testified that he has known Bradley for some time, but had not spoken to him for two years, and that he did not sell any intoxicating liquor to him on April 13, 1932, nor at any other time. On account of being confined to the hospital, the alderman did not appear.

In his defense, Bradley testified that on the evening of April 13, 1932, he went to the residence of the said Alexander, who opened the door and sold him intoxicating liquor, and that what he swore to in the information and at the hearing, to wit, that said Alexander had sold intoxicating liquor to him, is the truth and that which he told Mr. Hurwitz and reduced to writing, to wit, Commonwealth's exhibit No. 1, is not true.

The Commonwealth contends that the evidence of Russel Alexander, viz., that he never sold any intoxicating liquor to the defendant Bradley, is evidence of the perjury with which the defendant is charged, and the corroborating evidence of the said Hurwitz and Shope and the written statement, Commonwealth's exhibit No. 1, signed and sworn to by the defendant, are sufficient to sustain the conviction. We have the direct evidence of one witness, Alexander, of the alleged perjury and one contradictory statement relating to the same by the defendant. We regard what was said to Hurwitz, the writing and the affidavit before Shope as one, all having been contained in Commonwealth's exhibit No. 1, which is the testimony: 2 Wigmore on Evidence, Sec. 1331; Lessee of McCally v. Franklin, 2 Yeates 340.

The question before us is, is the evidence sufficient to sustain a conviction of the defendant of the charge of perjury?

We find no case in our state, nor has our attention been called to any, directly deciding the precise question before us.

Perjury is a crime of such a serious nature and bearing such serious consequences that at common law a conviction could not be had on the evidence of one witness alone, and for centuries the law required two witnesses to prove it; later the rule was relaxed so that a conviction might be sustained on the testimony of one witness and the proof by other witnesses of any material circumstance in confirmation of the witness who gives the direct testimony of the perjury. Such is the rule in Pennsylvania. The general rule in our country and England now is that "there must be either two witnesses to prove such falsity or one witness with material and independently established corroborative facts:" 2 Wharton on Criminal Law (12th ed.), page 1838, Sec. 1585.

In the case of Williams v. Com., 91 Pa. 493, 501, the Supreme Court said:

"It is a general rule that the testimony of a single witness to the falsity of the matter on which the perjury is assigned is insufficient to convict on a charge of perjury. Two witnesses are not essentially requisite, for if any material circumstance be proved by other witnesses in confirmation of the witness who gives the direct testimony of perjury, it may turn the scale and warrant a conviction."

The same rule is reaffirmed in the cases of Com. v. Rogo, 71 Pa. Superior Ct. 109, 115; Com. v. De Cost, 35 Pa. Superior Ct. 88; Com. v. Bobanic, 62 Pa. Superior Ct. 40.

Where the corroborating evidence consists of a statement by the defendant contradictory of his oath, two different views seem to be taken as to its sufficiency.

In 1 Greenleaf on Evidence, Sec. 259, it is said:

"If the evidence adduced in proof of the crime of perjury consists of two opposing statements of the prisoner, and nothing more, he cannot be convicted. For if one only was delivered under oath, it must be presumed, from the solemnity of the sanction, that that declaration was the truth, and the other an error or a falsehood; though the latter, being inconsistent with what he has sworn, may form important evidence, with other circumstances, against him. And if both the contradictory statements were delivered under oath, there is still nothing to show which of them is false, where no other evidence of the falsity is given."

In Schwartz v. Com., 68 Va. 1025, 21 Am. Rep. 365, the court in a well-considered opinion, at pages 1030-1032, said:

"If the second oath, deliberately taken, is insufficient to overcome the first, why should a mere admission have that effect? When a witness deliberately asserts a fact to be true as within his knowledge, and in a few minutes thereafter deliberately and intentionally asserts the very reverse as within his knowledge, all ground of innocent mistake being excluded, he thereby indirectly but unequivocally affirms the falsity of the first. Do we discredit the first any sooner, or believe the second the more readily, because the witness tells us that one was intentionally false and the other true? We believe neither of them. We place no confidence in either statement, from an absolute inability to determine which is true, or whether either is true. If the witness is afterwards put on his trial for perjury, our difficulties are in nowise removed. We are still in doubt which is the true and which is the false. . . .

"When we speak of corroborative evidence, we do not mean such as emanates from the mouth of the prisoner himself, but evidence aliunde, evidence which tends to show the perjury independently of his own declarations. The whole law in reference to perjury is based upon the idea that when there is witness against witness, oath against oath, there must be other evidence to satisfy the mind."

The same doctrine is held in Reg. v. Boulter, 3 Car. & K. 236, and in State v. Buckley, 18 Ore. 228, 22 Pac. 838.

In the case of State v. Hunter, 181 Mo. 316, 80 S.W. 955, in quite a full discussion upon the subject, the court, at pages 335-337, said:

"`The additional evidence need not be such as, standing by itself, would justify a conviction in a case where the testimony of a single witness would suffice for that purpose; but it must be at least strongly corroborative of the testimony of the accusing witness' [State v. Heed, 57 Mo. 252; State v. Hill, 91 Mo. 423; State v. Blize, 111 Mo. 464]."

"The equilibrium [speaking of the result after admission of direct testimony of the prosecution's one witness, and denial by the accused] must be destroyed by material and independent circumstances, before the party can be convicted. . . .

"What is meant by corroborative evidence is said to be aliunde evidence which tends to show the perjury independent of the prisoner's declarations or admissions [State v. Buckley, 18 Ore. 228; Gabrielsky v. State, 13 Tex. App. 428; 2 Wharton's Criminal Law (10th ed.), Sec. 1319]." See, also, Schwartz v. Com., 68 Va. 1025, 21 Am. Rep. 365.

In Peterson v. State, 74 Ala. 34, the court, inter alia, said:

"There can be no conviction of the crime of perjury on the...