Fletcher v. State

Decision Date25 April 1912
Docket Number674
Citation123 P. 80,20 Wyo. 284
CourtWyoming Supreme Court

ERROR to the District Court, Laramie County; HON. CHARLES E CARPENTER, Judge.

C. D Fletcher was charged with the crime of perjury and convicted and prosecuted error. The charge of perjury was based upon alleged false testimony given on the trial of the case of State v. Anthony Wilde, wherein said Wilde was charged with a felonious assault with an intent to commit rape upon one Bernice Wells. The other material facts are stated in the opinion.


W. B Ross, for plaintiff in error.

There is no legal presumption under our statutes of the correctness of the notes of the official stenographer, when the same are offered as evidence in another case, the stenographer testifying merely from his notes. Such notes are not per se correct. The person who produces them and is asked to testify from them must be able to say that they are correct, that he took the notes down correctly, and that as given or read in evidence they are correct. Otherwise the evidence is inadmissible. (1 Thomp. on Trials, Sec. 504; 9 Ency. of Ev. 759; 3 Wig. Ev., Sec. 669; 1 Greenleaf on Ev., Sec. 437; Underhill Cr. Ev., Sec. 470; Jones on Ev., Sec. 343, 877-878, 881; Barksdale v. Inv. Co., (Ga.) 47 S.E. 943; Wright v. Wright, (Kan.) 50 P. 444; St. L. &c. v. Rea, (Tex.) 84 S.W. 428; Williams v. Min. Co., (Colo.) 86 P. 337; Smith v. Scully, (Kan.) 71 P. 249; Packham v. Ludwig, (Md.) 63 A. 1048; Jordan v. Howe, (Neb.) 95 N.W. 853; Studebaker v. Faylor, (Ind.) 83 N.E. 747; Lipscomb v. Lyon, (Neb.) 27 N.W. 731; Smith v. Hine, (Pa.) 36 A. 222; Odell v. Solomon, 4 N.Y.S. 440; Reynolds v. Fitzpatrick, (Mont.) 72 P. 510; Robins v. Barton, (Kan.) 58 P. 279; People v. Macard, (Mich.) 67 N.W. 968; Dickerson v. State, (Wyo.) 111 P. 857.) Section 944, Compiled Statutes, 1910, has reference simply to the transcript of evidence written out and certified by the official stenographer, and has no reference to his testimony when called as a witness. (Reid v. Reid, (Cal.) 14 P. 781; Kirchner v. Laughlin, (N. M.) 23 P. 175; State v. Morgan, (Utah) 74 P. 526.) It was error to exclude evidence offered by the defense that Wilde was in Cheyenne on January 8, 1908. The theory of the prosecution seems to have been that as testimony was given in the assault case as to the incidents of December 23d and 25th, and that testimony was claimed to be false, it was incumbent upon the prosecution merely to show the falsity of those incidents, or rather that if they occurred they did not occur on said dates, but must have occurred after December 30th. We submit that that theory is erroneous. On a trial for perjury it is essential that the alleged false testimony be shown to have been material in the matter wherein it was given. (Whart. Cr. Law, Sec. 1304; 2 Bish. Cr. Law, Secs. 1030-1040; 30 Cyc. 1417-1418; Comp. Stat. 1910, Sec. 5921.) It is not sufficient that the testimonwy be closely connected with the transaction or issue under investigation or upon trial; it must appear that it bore either directly or circumstantially upon the point in issue, and also that it must have been material to the particular point. (People v. Perazzo, 64 Cal. 106; Pollard v. State, 69 Ill. 148; Sloan v. State, 71 Miss. 459; Jennings v. State, (Miss.) 7 So. 462; Crump v. Comm., 75 Va. 922; People v. Teal, (N. Y.) 89 N.E. 1086; Shevalier v. State, (Neb.) 123 N.W. 424; People v. Lem You, (Cal.) 32 P. 11; State v. Hattaway, (N. C.) 2 N. & McC. 440; Rich v. U.S. (Okla.) 33 P. 804; People v. Ah Sing, (Cal.) 30 P. 796; State v. Dineen, (Mo.) 102 S.W. 480; U. S. v. Pettus, 84 F. 791; State v. Smith, (Kan.) 20 P. 529; Ligget v. State, (Tex.) 83 S.W. 807; Nelson v. State, 47 Miss. 621; State v. Dodd, 7 N.C. 226; Comm. v. Pollard, 12 Metc. (Mass.) 225; Studdard v. Linville, 10 N.C. 474; U. S. v. Shinn, 14 F. 447.) The prosecution must show the materiality. (Comp. Stat. 1910, Sec. 5921; 30 Cyc. 1436, 1446, 1450-1451, 1443-1444; 9 Ency. Ev. 755-756; Sloan v. State, supra; People v. Ah Sing, supra; Shevalier v. State, supra; Wood v. People, 59 N.Y. 117; Brown v. State, (Fla.) 36 So. 705; Maroney v. State, (Tex.) 78 S.W. 696; Underhill on Cr. Ev. 467; Rich v. U.S. (Okla.) 33 P. 804; Grissom v. State, (Ark.) 113 S.W. 1011; Lawrence v. State, 2 Tex.App. 479; Bledsoe v. State, (Ark.) 42 S.W. 899; Brown v. State, supra; State v. Camley, (Vt.) 31 A. 840; Young v. People, (Ill.) 24 N.E. 1070; State v. Gibbs, Mont.) 10 L. R. A. 749; Wilkinson v. People, (Ill.) 80 N.E. 699; State v. Vandemark, (Conn.) 58 A. 715; People v. Collins, (Cal.) 92 P. 513; People v. Chadwick, (Cal.) 87 P. 384; Dickerson v. State, (Wyo.) 111 P. 857.)

Where the alleged perjury is based upon testimony in support of an alibi, such testimony to be material must plainly tend to place the accused party at some other place at the time of the alleged offense. The offense for which Wilde was being tried was alleged to have been committed at the Wells cottage in the afternoon of December 26th or 27th. Plainly, testimony to the effect that Wilde was cutting ice two miles from the cottage on the 23rd or 25th could not be material. A reference to the decided cases will show that whenever testimony to establish an alibi was made the basis of a perjury charge the direct tendency of the testimony was to put the accused at another place at the time of the offense. (Sanders v. People, 124 Ill. 218, 16 N.E. 81; Brown v. State, 57 Miss. 424; State v. Gibbs, (Mont.) 10 L. R. A. 749; Tellis v. State, (Tex.) 61 S.W. 717; State v. John, (Ia.) 93 N.W. 61; Grady v. State, (Tex.) 90 S.W. 38; McCoy v. State, (Tex.) 73 S.W. 1057; Comm. v. Flynn, 57 Mass. 525.) Although it is sufficient that the perjured testimony be collaterally material, it is meant thereby that it is circumstantially material, the effect being that the testimony must have been such as to influence a decision upon the issue before the court; but the influence must arise from the legal tendency of the testimony. (22 Ency. Law, (2nd Ed.) 686-688; 9 Ency. Ev. 755-756; 2 Whart. Cr. Law, Sec. 1277; 2 Bish. Cr. Law, Sec. 1032; 30 Cyc. 1418-1419; State v. Moran, (Mo.) 115 S.W. 1126; Washington v. State, (Tex.) 3 S.W. 228; Davidson v. State, (Tex.) 3 S.W. 662; Hanscom v. State, (Wis.) 67 N.W. 419; People v. Greenwell, (Utah) 13 P. 89; Robertson v. State, (Ark.) 16 S.W. 582; Henderson v. People, (Ill.) 7 N.E. 677; State v. Trask, 42 Vt. 152; Comm. v. Byron, 14 Gray, 31; Comm. v. Monahan, 9 Gray, 119; Maddox v. State, (Tex.) 13 S.W. 862; Hembree v. State, 52 Ga. 242; People v. Ah Sing, supra.) The testimony as to collateral facts is not material unless such collateral facts are testified to by the witness who also testifies to the material facts. (2 Whart. Cr. Law, Sec. 1277; 2 Bish. Cr. Law, Sec. 1037; People v. Root, 87 N.Y.S. 962.) The material allegations in an information for perjury must be proven beyond a reasonable doubt as in any other criminal case. A fatal defect in the evidence for the prosecution in this case results from the fact that it was not shown on the trial of this plaintiff in error that Wilde, the accused in the former case, was at the Wells cottage on the afternoon of December 26th or 27th. Whether the alleged false testimony is material or not is a question of law. Where the facts themselves are disputed the materiality must be submitted to the jury with proper instructions. (2 Whart. Cr. Law, Sec. 1284; 2 Bish. Cr. Law, Sec. 1039; 9 Ency. Ev. 765-767; 22 Ency. Law, (2nd Ed.) 688; 30 Cyc. 1456; U. S. v. Shinn, 14 F. 447; State v. Brown, (La.) 35 So. 501; State v. Kennerly, 10 Rich. Law, (S. C.) 152; Lawrence v. State, 2 Tex.App. 479; Marvin v. State, (Ark.) 14 S.W. 87; Nelson v. State, 32 Ark. 192; Dickerson v. State, supra.)

The instruction that the record in the former trial of Wilde was introduced for the purpose of showing that the alleged perjury was committed in that cause as charged in the information, and not as proof of the perjury or falsity of the testimony, did not go far enough. The jury should have been instructed not only as to the record proper consisting of the information and journal entries in the assault case, but there should have been included in the instruction the testimony given by the stenographer as to the evidence in the assault case of Bernice Wells, the prosecutrix. (Dickerson v. State, supra; Whart. Cr. Ev., Sec. 602a; Maddox v. State, supra; State v. Vandemark, (Conn. ) 58 A. 715; Freeman v. State, (Tex.) 67 S.W. 499.)

D. A. Preston, Attorney General, and C. L. Rigdon, County and Prosecuting Attorney of Laramie County, for the state.

The notes of the official stenographer from which he testified on this trial for perjury were made at the time the testimony was taken, and it was the duty of the stenographer to make them correctly. He testified on this trial that he could state from his notes what the testimony given at the former trial of Wilde was. This made his testimony admissible. (State v. Smith, 99 Ia. 26; People v. Macard, (Mich.) 67 N.W. 968; State v. Camley, (Vt.) 31 A. 840; Heflin v. State, 88 Ga. 151; 4 Elliott's Ev., Sec. 3084.) The authorities cited by opposing counsel on this question are not in point, for in this case no question of the introduction of a transcript of the stenographic notes is in issue. The offered testimony to the effect that Wilde was in Cheyenne on January 8th was properly excluded. If admitted it could only have been cumulative, tending to support the evidence of the prosecution as well as evidence which had already been introduced on the part of the defense, and it did not contradict the evidence of any witness. If error at all it was not prejudicial.

It is conceded that the testimony alleged to be false must be material in the case in which it was...

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