Commonwealth v. Fine

• Citation: 73 N.E.2d 250,321 Mass. 299
• Parties: COMMONWEALTH v. FINE (three cases).
• Decision Date: 28 May 1947
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

321 Mass. 299

73 N.E.2d 250

COMMONWEALTH

v.FINE (three cases).

Supreme Judicial Court of Massachusetts, Suffolk.

May 28, 1947.

Jacob Fine and Henry H. Fine were convicted of subornation of perjury and they appealed. The appeal was consolidated with trial judge's report of the exceptions of Henry H. Fine to denial of his motion for a directed verdict of not guilty of conspiracy to incite, instigate and persuade one to commit perjury and to the admission of certain evidence.

Judgments on the indictments for subornation of perjury affirmed, and exceptions of Henry H. Fine overruled.Appeal from Superior Court, Suffolk County; Fosdick, Judge.

Before FIELD, C. J., and LUMMUS, RONAN, WILKINS, and SPALDING, JJ.

F. J. Hickey, Ass't. Dist. Atty., of Boston, for Commonwealth.

H. C. Thompson, of Boston, for defendant Henry H. Fine.

E. M. Dangel and L. E. Sherry, both of Boston, for defendant Jacob Fine.

RONAN, Justice.

The defendants Jacob Fine and Henry H. Fine were convicted of subornation of perjury and also of conspiracy to incite, instigate and persuade one Johnson to commit perjury. They appealed from the convictions for subornation of perjury, assigning as errors the denial of their motions for directed verdicts of not guilty and the admission of a motion for a new trial which had been filed in a previous prosecution of Jacob Fine in which he had been convicted of being an accessory before the fact to the burning of a building with intent to defraud the insurer, G.L.(Ter.Ed.) c. 266, § 10, as appearing in St.1932, c. 192, § 7; Fine v. Commonwealth, 312 Mass. 252, 44 N.E.2d 659, 145 A.L.R. 392; it being alleged that it was upon the hearing on this motion that Johnson committed perjury. The indictment for conspiracy was tried with the indictments for subornation of perjury, and the judge reported the exceptions of Henry H. Fine to the denial of his motion for a directed verdict of not guilty and to the admission in evidence of the aforesaid motion for a new trial.

There was testimony that Jacob Fine, after his conviction of being an accessory before the fact to burning a building with intent to defraud the insurer, sought witnesses to support his motion for a new trial. He approached one Johnson who lived in the building at the time of the fire. Johnson told Jacob Fine and later Henry H. Fine that he had testified at the fire inquest and before the grand jury that just before the fire he had observed a pile of rubbish and a quantity of gasoline in the cellar and that to change his story would amount to perjury for which he might receive a sentence of two or three years in jail. Both defendants assured him at different times that his previous testimony would not come up and that it would be all right for him to say that he had not seen any gasoline. Johnson on July 8, 1941, made an affidavit to this effect before an attorney who had defended Jacob Fine in the accessory case. Johnson and his brother-in-law Armstrong, with whom he lived at the time of the fire, went with Jacob Fine on the evening of September 8, 1941, to the home of one Gordon, who, acting in the role of a district attorney, questioned Johnson and Armstrong as to the evidence they proposed to give at the hearing on the motion for a new trial which was to be held on the next day. Gordon was not satisfied with their proposed testimony, and Henry H. Fine was sent for and joined in the conference. The latter talked with Johnson and went over his story with him. He said to Johnson, ‘If you do that tomorrow at the trial you are all right.’ Johnson was advised to ‘stick to * * * [his] story,’ and not to tell any one he had been at Gordon's. At the hearing on the motion on September 9, 1941, Johnson testified in accordance with the affidavit that he saw no gasoline in the cellar. In the instant prosecutions he testified that this testimony was false. Henry H. Fine admitted being at Gordon's home, but his testimony of what he did there differed from the testimony of Johnson and Armstrong. Armstrong was present at all conversations which Johnson had with Jacob Fine, Henry H. Fine or Gordon, and was present when Johnson signed the affidavit of July 8, 1941. His testimony in the main supported that of Johnson. Johnson was paid small sums, amounting in all to $17.50, by Jacob Fine when the affidavit was given, when he went to Gordon's, and when he appeared at the hearing on the motion. Jacob Fine also paid a small amount of money to Armstrong.

We first consider the assignments of error in the trial of the indictments charging subornation of perjury.

The principal contention of the defendants is that the motions for directed verdicts of not guilty should have been granted because the evidence was insufficient to prove the falsity of the testimony given by Johnson at the hearing on the motion for a new trial. The deficiency, it is urged, arises out of the contention that Johnson's testimony was not shown to be untrue by the testimony of two witnesses or by that of one witness with corroborative evidence. The contention rests upon the familiar rule defining the quantitative evidencerequired for the proof of perjury. The history, reasons, and application of this rule have been frequently set forth in various decisions. Commonwealth v. Parker, 2 Cush. 212, 222-224;Hammer v. United States, 271 U.S. 620, 46 S.Ct. 603, 70 L.Ed. 1118;Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495, 156 A.L.R. 496. See note 56 A.L.R. 408; Wigmore on Evidence (3d Ed.) §§ 2040-2044. This rule has been followed in our decisions in prosecutions for perjury, Commonwealth v. Pollard, 12 Metc. 225, 228;Commonwealth v. Parker, 2 Cush. 212;Commonwealth v. Butland, 119 Mass. 317, 324;Commonwealth v. Sargent, 129 Mass. 115, 123, and in trials for subornation of perjury with reference to the proof of that part of the offence dealing with the falsity of the oath of the person alleged to have been suborned, Commonwealth v. Douglass, 5 Metc. 241;Commonwealth v. Bornstein, 269 Mass. 181, 168 N.E. 796. It has recently been pointed out that this rule is at variance with the general rule that facts are to be proved by the character and quality of the testimony and not by the quantity of the evidence or by the number of witnesses, and is inconsistent with the present trend of our decisions toward the elimination of quantitative standards of the sufficiency of evidence. Commonwealth v. Gale, 317 Mass. 274, 277, 278, 57 N.E.2d 918. One of the main reasons for the adoption of the rule was that in prosecutions for false swearing the oath of the defendant is not overcome by the oath of another which contradicts the oath taken by the defendant. That situation is not present in prosecutions for subornation of perjury, for in such an instance the defendant is not charged with corruptly and falsely taking an oath but is accused of procuring another to take such an oath. Furthermore, while perjury and subornation of perjury are distinct and separate statutory felonies, G.L.(Ter.Ed.) c. 268, §§ 1, 2, the latter offence is ‘clearly is its nature that of an accessory before the fact to the perjury,’ Commonwealth v. Smith, 11 Allen 243, 256, and in this Commonwealth, in a comparable situation, there is no rule of law that one may not be convicted by the uncorroborated evidence of an accomplice, Commonwealth v. Lammi, 310 Mass. 159, 37 N.E.2d 250;Commonwealth v. Giacomazza, 311 Mass. 456, 42 N.E.2d 506. We need not decide whether we should continue to apply this rule in prosecutions for subornation of perjury because we are of the opinion that, in the instant case, the...