Danaher v. United States

• Decision Date: 24 February 1930
• Docket Number: No. 8023.,8023.
• Parties: DANAHER v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

39 F.2d 325 (1930)

DANAHER v. UNITED STATES.

No. 8023.

Circuit Court of Appeals, Eighth Circuit.

February 24, 1930.

Donald G. Hughes, of Minneapolis, Minn. (W. H. McDonald, of Minneapolis, Minn., on the brief), for plaintiff in error.

John S. Pratt, Sp. Asst. to Atty. Gen. (Lafayette French, Jr., U. S. Atty., of Austin, Minn., on the brief), for the United States.

Before STONE and LEWIS, Circuit Judges, and MARTINEAU, District Judge.

LEWIS, Circuit Judge.

Danaher was convicted on seven counts of an indictment each of which purported to charge him with subornation of perjury. Sections 231 and 232 of title 18 USCA. By making the terms cumulative he was then sentenced to confinement in the penitentiary for 23 years.

Section 231 reads:

"Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, shall willfully and contrary to such oath state or subscribe any material matter which he does not believe to be true, is guilty of perjury."

And section 232 reads:

"Whoever shall procure another to commit any perjury is guilty of subornation of perjury."

Of course, the strict rules of the common law, in charging perjury, do not now obtain, either in England or here. Under those rules, where perjury was committed in court, it was necessary to set out in the indictment the title of the cause in which the witness was sworn and testified, the record and all of the pleadings therein, thus disclosing jurisdiction and the issue, as a guide to the determination of the question whether the testimony of the witness charged to be false was material. The commission of the officer before whom the oath was taken was also set out. But by statute that is not now necessary. Section 558 of title 18, USCA, prescribes:

"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 averment to falsify the matter wherein the perjury is assigned, without setting forth the bill, answer, information, indictment, declaration, or any part of any record or proceeding, either in law or equity, or any affidavit, deposition, or certificate, other than as hereinbefore stated, and without setting forth the commission or authority of the court or person before whom the perjury was committed."

Also section 559 of said title:

"In every presentment or indictment for subornation of perjury, it shall be sufficient to set forth the substance of the offense charged upon the defendant, without setting forth the bill, answer, information, indictment, declaration, or any part of any record or proceeding either in law or equity, or any affidavit, deposition, or certificate, and without setting forth the commission or authority of the court or person before whom the perjury was committed, or was agreed or promised to be committed."

The sufficiency of the seven counts in this indictment and the question whether they stated any offense against Danaher must be tested by these sections. The counts are all couched in the same language with the exception that in five the oath is alleged to have been taken before a named commissioner of the District Court of the United States for the District of Minnesota, and two of them before a named deputy clerk of said court. All counts except one set forth the alleged false affidavit. It will therefore be necessary to only set out verbatim one count. It charges that Danaher "* * * unlawfully did willfully and corruptly suborn, instigate and procure one Harvey Schell to appear in person before H. D. Irwin, then and before that time being a Commissioner of the District Court of the United States for the District of Minnesota, and then and there did willfully and corruptly suborn, instigate and procure said Harvey Schell to make affidavit in writing before the said H. D. Irwin, Commissioner as aforesaid, on occasion and for the purpose of executing a certain recognizance for one Joseph Sneider, at and upon the making of which said affidavit it then and there became and was material that the said H. D. Irwin, Commissioner as aforesaid, should know whether said Harvey Schell owned in fee simple and in his own name and right certain real estate in the said affidavit mentioned and described, and thereupon the said Harvey Schell in consequence and by means of the said willful and corrupt subornation, instigation and procurement of the said Frank Danaher, was in due manner sworn before the said H. D. Irwin, and made oath before him of and concerning the truth of the matters contained in the said affidavit, he, the said H. D. Irwin, then and there being such Commissioner as aforesaid, and having competent authority to administer the said oath to the said Harvey Schell in that behalf. And the said Harvey Schell, so being sworn as aforesaid, then and there in and by his said affidavit willfully, corruptly and falsely, and contrary to the said oath, did depose and swear, that he, the said Harvey Schell, was the owner in fee simple of the following described real estate, to-wit: No. 2610 East Thirty-eighth Street, in the city of Minneapolis, Minnesota, as in the said affidavit set forth, of and concerning the material matters and figures following, to-wit:

"`Affidavit of First Surety.

"`United States of America, District of Minnesota, Fourth Division — ss.:

"`Harvey Schell, a surety on the annexed recognizance, being duly sworn, deposes and says that he resides at 2221 28th Ave. So. in the city of Minneapolis, in said district, that he is a freeholder in the District of Minnesota, that he is worth the sum of Two Thousand Dollars over and above all his just debts and liabilities, in property subject to execution and sale, and that his property consists of: house and lot at 2610 East 38th Street in the city of Minneapolis, in said District, worth $6,000.00 and clear.

"`Affiants' signature Harvey Schell. "`Sworn to and subscribed before me, this 1st day of February, A. D. 1926 "`Seal. H. D. Irwin,

"`United States Commissioner as aforesaid.'

"Whereas in truth and in fact the said Harvey Schell, at the time when he was so sworn and made affidavit as aforesaid, did not then own in fee simple and in his own name and right the said real estate, namely, number 2610 East Thirty-Eighth Street, in the city of Minneapolis, Minnesota, and in the said affidavit mentioned and described.

"Whereas, in truth and in fact the said Frank Danaher, at the time when he so suborned, instigated and procured the said Harvey Schell to make oath and affidavit, and to depose and swear falsely as aforesaid, there well knew that the said Harvey Schell did not then verily believe himself to be the owner in fee simple and in his own name and right, of the hereinbefore described real estate; and whereas in truth and in fact the said Frank Danaher did not believe to be true the certain matters which he so suborned, instigated and procured the said Harvey Schell falsely to depose and swear, as hereinabove specified.

"And so the Grand Jurors aforesaid, upon their oaths aforesaid, do present that the said Frank Danaher, in manner and form aforesaid, wilfully and corruptly did suborn, instigate and procure the said Harvey Schell to commit wilful and corrupt perjury;

"Which is contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States."

Inferentially it might be thought that the commissioner was acting under section 591, tit. 18 USCA, but there is no charge or statement in the indictment which discloses that fact. It is not charged or stated that Sneider was being held on a charge of having committed a crime or offense against the United States. That section, so far as material, reads:

"For any crime or offense against the United States, the offender may * * * by any United States commissioner * * * where he may be found, and agreeably to the usual mode of process against offenders in such State * * * be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offense."

It appeared during the trial, from testimony and the recognizances offered in evidence, that the commissioner was proceeding under this section; but the proof cannot be looked up to to supply a substantive charge that has been omitted, and the question is, whether there was such omission.

There can be no conviction of subornation of perjury without a charge and proof that perjury had been in fact committed, and that defendant procured or induced its commission. Austin v. United States (C. C. A.) 19 F.(2d) 127. In substance, there is no difference between perjury and subornation of perjury. Hammer v. United States, 271 U. S. 621, 46 S. Ct. 603, 70 L. Ed. 1118. And so it is necessary that an indictment for the offense here charged contain the allegations of an indictment for perjury. 2 Bish. New Crim. Law, § 1197; 2 Bish. New Crim. Proc. §§ 1019, 1020. Furthermore, it is a settled and accepted rule that facts material to be charged in an indictment must be stated therein and not be left to surmise or to be reached by way of inference or argument. In United States v. Curtis, 107 U. S. 671, 2 S. Ct. 507, 508, 27 L. Ed. 534, it is said:

"It is fundamental in the law of criminal procedure that an oath before one who has no legal authority to administer oaths of a public nature, or before one who, although authorized to administer some kind of oaths, but not the one which is brought in question, cannot amount to perjury at common...