Edwards v. State

Citation577 P.2d 1380
Decision Date08 May 1978
Docket NumberNo. 4834,4834
PartiesCharles W. EDWARDS, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).
CourtUnited States State Supreme Court of Wyoming

David B. Park, Ronald W. Hofer and Harry E. Leimback, Casper, signed the brief and David B. Park appeared in oral argument on behalf of appellant.

V. Frank Mendicino, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., and Allen C. Johnson, Asst. Atty. Gen., Cheyenne, signed the brief and Allen C. Johnson, Cheyenne, appeared in oral argument on behalf of appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

RAPER, Justice.

Appellant-defendant was found guilty by a jury in district court of perjury in violation of § 6-153.1, W.S.1957, 1975 Cum.Supp. (§ 6-8-101, W.S.1977), 1 and sentenced to a penitentiary term of not less than 18 months nor more than two years. On appeal, defendant raises five issues:

1. Whether the State successfully proved all elements of the crime of perjury;

2. Whether the trial judge erred in not removing the matter to juvenile court;

3. Whether the trial judge exhibited an open bias so that the jury was improperly influenced;

4. Whether the transcript of the trial in which the perjury allegedly occurred was improperly admitted into evidence;

5. Whether undue attention was drawn to the allegedly perjurious testimony of defendant.

We shall affirm.

Pursuant to subpoena, defendant testified for the defense in the trial of State v. Russell, et al., Criminal Action No. 7177, Natrona County District Court. That trial resulted in the conviction of Thomas Russell, Jr. on charges of receiving stolen property. When defendant appeared at the courthouse in Casper to testify on the second day of the Russell trial, he was summoned by Officer Millay of the Casper Police Department to a conference with Officer Millay and Deputy County Attorney Lewis. After defendant had related the statement that he was going to make in court (that the expensive racing manifold with carburetors involved in the trial had been given by him, Edwards, to Russell as collateral on a loan), Lewis indicated his disbelief of such version and threatened defendant with a charge of perjury. Defendant then recanted his statement and related that he had been threatened by Russell and told to testify to the fabricated story. He then left the county attorney's office and upon entering the courthouse hallway was once again threatened by Russell. Subsequently, when called as a witness in the Russell trial, he testified to the story which he previously had told Millay and Lewis was fabricated. At the trial of the perjury charges herein, defendant admitted his prior testimony was not true, but asserted that he had related it out of fear of Russell and others.

A charge of perjury requires proof of three elements: (1) the materiality of the perjured evidence upon the issue in the trial in which it was given; (2) that the defendant testified as alleged; and (3) that his testimony (evidence) was knowingly and corruptly false. Fletcher v. State, 1912, 20 Wyo. 284, 123 P. 80. As with all criminal charges, each element must be proved beyond a reasonable doubt; yet with a charge of perjury, the quantum of proof necessary is the highest known to law, excepting only treason. State v. Buchanan, 1971, 79 Wash.2d 740, 489 P.2d 744. To support a conviction for perjury, the offense must be proved by the testimony of two independent witnesses, or that of one witness and independent corroborating circumstances of weight equal to the testimony of another witness. 70 C.J.S. Perjury § 68, pp. 535-538; People v. Mazza, 1973, 182 Colo. 166, 511 P.2d 885; State v. Frames, 1973, 213 Kan. 113, 515 P.2d 751. Though much criticized, this so-called "two-witness" rule is deeply rooted in past centuries, manifesting a policy as said in United States v. Diggs, 7 Cir. 1977, 560 F.2d 266, 269, cert. den. 434 U.S. 925, 98 S.Ct. 404, 54 L.Ed.2d 283:

" * * * that a conviction for perjury ought not to rest solely on one man's oath against that of another, and on 'the fear that innocent witnesses might be unduly harassed or convicted in perjury prosecutions if a less stringent rule were adopted.' Weiler v. United States, 323 U.S. 606, 609, 65 S.Ct. 548, 550, 89 L.Ed. 495 (1945)."

The jury was properly instructed by the trial judge as to this extra heavy burden of proof placed upon the State.

Defendant's initial assertion of error alleges that requisite proof of the required elements of the perjury charge had not been successfully made. He asserts that neither the materiality of the evidence, nor its knowing and corrupt falsity, nor that it was given as alleged under oath had been proven to the standards required. After reviewing the evidence presented in the trial court, we cannot agree. From the full transcript of testimony adduced at the prior trial, admitted after proper authentication by the official court reporter, Annotation, "Mode of proof of testimony given at former examination, hearing, or trial," 11 A.L.R.2d 30, as well as defendant's own testimony at the trial herein, it is clear that the perjured testimony in question was properly attributed to him and material. As for his allegation that the prior testimony was not properly shown to have been under oath, we would simply point out that the court reporter testified that the contents of the transcript were exactly as he had taken them down; and thus, in conjunction with the statement in the transcript that defendant had been duly sworn, constitutes sufficient proof beyond a reasonable doubt that the oath had been given. People v. Beacham, 1977, 50 Ill.App.3d 695, 8 Ill.Dec. 499, 365 N.E.2d 737.

Concerning the required element of materiality, the defendant has urged that unless the indictment or information from the prior trial, along with the record of that defendant's plea of not guilty in the previous case, are introduced into evidence in the perjury trial at hand, materiality has not been adequately shown, citing as controlling authority Fletcher v. State, supra. From our reading of Fletcher, such a conclusion is not that clear. To be material, the statement made must have some weight and reference to the determination of an issue before the court. Although its actual effect has no bearing on materiality, the statement must be one which could influence a tribunal, even if only upon a collateral or circumstantially material point. 70 C.J.S. Perjury §§ 11-12, pp. 466-468. In the situation herein, it should be obvious that defendant's perjured statement was more than material. It went to the very crux of the possession of stolen property charge against the defendant Russell, being directed as it was at the key element of Russell's knowledge at the time of the receipt of the property. The testimony of Officer Millay, as well as Deputy County Attorney Lewis, clearly indicated the testimony's materiality, and there would seem to be no need, under circumstances such as this, for the narrow, technical requirement of Fletcher, as interpreted and proposed by defendant.

We do not read Fletcher as saying the only way materiality may be proven is by introduction into evidence of a copy of the information and proof of a plea of not guilty. The holding, as we view it, states only that there must be proof of a joinder of issue and if the perjured testimony of a witness is material to that issue, the matter is properly before the jury. In Fletcher, there was a failure of proof that issue had been joined. In the case now before us, from the record there is no question but that Russell was charged with receiving stolen property and the whole transcript of testimony from the Russell case received in evidence amply, beyond dispute, demonstrates that Russell claimed innocence; the issue of guilt or innocence of the charge was thus drawn and the testimony of defendant here was material to that issue.

Finally, within the initial issue in the appeal before us, based on an alleged failure of proof, defendant urges that his prior testimony could not be found willfully and corruptly false since he was testifying out of fear and duress based on threats of physical harm. While we would agree that any threat to a person of physical violence might well engender fear or apprehension, such compulsion cannot excuse perjury in a case such as that before us. The rule is excellently stated in 60 Am.Jur.2d, Perjury, § 49, p. 995:

"A false statement made under fear or compulsion in court under oath constitutes perjury, since the impelling danger is not present, imminent, impending, or unavoidable. Such characteristics of duress are not present in testifying in court under oath, since the defendant possesses not only the power and right of protecting himself, but may also appeal to the law to shield him from the threatened danger. Accordingly, it has been held, a person is guilty of perjury who deliberately and wilfully makes a false statement under oath, before a grand jury, even though he speaks under compulsion, and it is immaterial whether the witness appears and testifies voluntarily or under compulsion of a subpoena." (Emphasis added. Footnotes omitted.)

In a courtroom, the witness is surrounded by all the protection a court can muster. See Annotation, "False statement made under fear or compulsion as perjury," 4 A.L.R. 1319. 2

The purpose of the perjury statut...

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  • Jahnke v. State
    • United States
    • United States State Supreme Court of Wyoming
    • December 12, 1984
    ...is that so when production of the original writing is essential to any accurate determination of the issues involved. Edwards v. State, Wyo., 577 P.2d 1380 (1978). Nevertheless, one of the interrogating officers began testifying to his opinions and conclusions about what Deborah had said in......
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    • United States State Supreme Court of Wyoming
    • July 19, 1978
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