Dill v. People

• Decision Date: 19 March 1894
• Citation: 19 Colo. 469,36 P. 229
• Parties: DILL v. PEOPLE. [1]
• Court: Colorado Supreme Court

36 P. 229

19 Colo. 469

DILL v. PEOPLE. ^[1]

Supreme Court of Colorado

March 19, 1894

Error to district court, Arapahoe county.

Indictment of Sanford B. Dill for perjury. Defendant was convicted, and he brings error. Affirmed.

Syllabus by the Court

1. In criminal pleading, the time at which an offense is charged to have been committed is not material, unless time be of the essence or gist of the offense; but where an indictment for perjury is based upon a written instrument--matter of record--set out in haec verba in the indictment, and the instrument offered in evidence bears a different date from the instrument described in the indictment, the date of such instrument is matter of description, and the variance is material.

2. In determining whether or not a plea of autrefois acquit is sufficient in law, the following may generally be regarded as the proper test: Was the matter set out in the second indictment admissible as evidence under the first, and could a conviction have been properly maintained upon such evidence? If yes, then the plea is sufficient; otherwise, it is not.

3. The act of 1891 (Sess. Laws, p. 251) was intended to supersede the act of 1889 (Mills Ann. St. § 2595) in respect to challenges on the ground that jurors had served in the county or district court within the year next preceding; such jurors not liable to challenge for cause unless summoned from the bystanders on open venire.

4. Where a husband is indicted for willful and corrupt perjury in making a false affidavit in a suit for divorce against his wife, the wife is a competent witness for the state on the trial of such indictment.

H. W. Spangler and L. K. Pratte, for plaintiff in error.

Eugene Engley, Atty. Gen., and H. F. Sale, Asst. Atty. Gen., for the People.

ELLIOTT J.

1. The sustaining of the demurrer to defendant's plea of autrefois acquit is assigned for error. It appears that in November, 1890, Sanford B. Dill instituted an action in the county court of Arapahoe county to procure a divorce from his wife. In such action, defendant made and filed an affidavit as follows:

'State of Colorado, County of Arapahoe--ss.: In the County Court thereof. Sanford B. Dill, Plaintiff, vs. Susan A. Dill Defendant. Affidavit. Sanford B. Dill, being duly sworn, says that he is the plaintiff in the above-entitled action, and that he has filed in said action a complaint against Susan A. Dill, the defendant, to procure a divorce; that the defendant (meaning the said Susan A Dill) does not reside in the state of Colorado, and her post-office address is unknown to this affiant. Sanford B. Dill, Plaintiff.

'Subscribed and sworn to before me this 29th day of November, 1890. My commission expires Sept. 20, 1894. E. E. S. Schlosser, Notary Public. [Seal.]'

The indictment upon which Dill was convicted sets out the foregoing affidavit in haec verba, and charges, among other things, that defendant committed willful and corrupt perjury in making oath thereto, in that he did then and there know the post-office address of his said wife, Susan A. Dill. To this indictment, defendant interposed a plea of autrefois acquit. The plea alleged, inter alia, that, at a former term of the same court, defendant had been indicted and tried upon another indictment for the same crime of perjury, and that upon such trial he was acquitted. But the record of the first cause, which is made a part of the plea, shows further that in the first indictment the affidavit was also set out in haec verba, in the first count, and that the date was stated as the '28th day of November, 1890,' instead of the '29th day of November, 1890.' The prosecution, being required on the first trial, upon defendant's motion, to elect upon which count the trial should proceed, elected to proceed upon the first count. The record further shows that in the midst of the trial, 'it appearing to the court that there is a variance between the proof offered and the allegations of this said indictment, and the said jurors being duly instructed by the court, without retiring from their seats, upon their oaths do say, 'We, the jury, find the defendant not guilty as charged in the first count of this indictment.'' The demurrer was an admission of all the material facts well stated in the plea. The plea shows that defendant had been in jeopardy once under an indictment charging him with having committed perjury in making oath to an affidavit dated the '28th day of November, 1890.' But the plea does not show that he had been in jeopardy for making oath to an affidavit dated the '29th day of November, 1890.' It may have been true that defendant did not know his wife's address on November 28, 1890, and yet also true that he did know her address the next day. But there is a further difficulty to be considered: It is a general rule in criminal pleading that the time at which an offense is charged to have been committed is not material, unless time be of the essence or gist of the offense. Com. v. Monohan, 9 Gray, 119. From the averments of the plea, including the record of the first trial, it is obvious that the variance whereby defendant obtained a verdict did not arise from a mere difference between the allegations of the indictment and the proof offered as to the time when the offense was committed. The variance consisted in matter of description. By the first indictment, defendant was charged with having committed the crime of perjury by making oath to a certain sworn instrument of writing bearing a particular date. The proof offered was an instrument bearing a different date. There was a variance, therefore, in the description of the written instrument upon which the charge of perjury was based. Besides, such written instrument was matter of record in the divorce suit. It was essential to the jurisdiction of the court in that suit. The variance, therefore, must be held to be material and substantial as a description of the particular offense. Such particular description was perhaps unnecessary, but whether a less particular description would have been sufficient, we do not determine. The description of the affidavit having been made in haec verba, it was necessary to prove it as made in order to sustain a conviction under the particular count of the indictment tried and determined. State v. Ammons, 3 Murph. 123.

2. In determining whether or not a plea of autrefois acquit is sufficient in law in a case of this kind, the following may generally be regarded as the proper test: Was the matter set out in the second indictment admissible as evidence under the first, and could a conviction have been properly maintained upon such evidence? If yes, then the plea is sufficient; otherwise, it is not. The affidavits set out in haec verba in the indictments, respectively, were variant in description. The variance was material. The allegations of the two indictments clearly indicate two different affidavits, though in fact there may have been but one. Each of the affidavits bears a single date. Such date cannot, therefore, be both November 28th and November 29th. Therefore, the affidavit particularly described in the second indictment was not admissible under the first indictment. The variance did not arise from the difference in time as to the alleged commission of the offense, but from a difference in date of a writing--a matter of record--particularly described, and relied upon to sustain the conviction. The court did not err in sustaining the demurrer to the plea of autrefois acquit. The opinion in the case of State v. Blanchard, 74 Iowa 628, 38 N.W. 519, is relied on as sustaining the plea in this case. It seems to have some bearing contrary to our conclusion. But the instrument in the Iowa case was not a matter of record, and the question decided did not arise upon a plea of autrefois acquit. Besides, as the opinion of the court shows, the case was submitted and determined 'without argument by counsel for either party.' The opinion cites no authorities upon the precise question raised in this case. Upon careful consideration, it is clear that the current of authority sustains the views we have expressed. 1 Greenl. Ev. §§ 56-65; 1 Bish. Cr. Law, § 1052; 1 Whart. Cr. Ev. § 103; 1 Archb. Cr. Pr. 375, and notes; U.S. v. McNeal, 1 Gall. 387, Fed. Cas. No. 15,700; U.S. v. Bowman, 2 Wash. C. C. 328, Fed. Cas. No. 14,631; U.S. v. Denicke, 35 F. 407; People v. Hughes, 41 Cal. 234; State v. Porter, 2 Hill (S. C.) 610; Keator v. People, 32 Mich. 487; State v. Clark, 2 Tyler, 282.

3. Certain jurors were challenged on the ground that they had served as jurors in the county or district court of the county within the year next preceding. The challenges were based upon section 2595, 2 Mills' Ann. St. This statute, as amended, was passed in 1889. It provided that any person who had served as a juror in any district or county court at any time within the year next preceding should be liable to challenge for cause. But subsequently an act was passed providing for the selection and qualification of jurors, and to repeal all acts and parts of acts in conflict therewith. Section 4 of the latter act provides in detail for the impaneling of jurors. It provides, among other things, as follows: 'Whenever it shall be necessary to summon talesmen, the court, in its discretion, shall direct that they be drawn from said box, or summoned from the bystanders, provided that either party may show cause, why talesmen, should not be summoned from the bystanders, or may issue an open venire as heretofore practiced, and, in every case, the venire facias shall be returnable as the court shall direct, provided it shall be ground for challenge to any person so summoned from the bystanders on an open venire if he shall have served as a juror either...