Gordon v. State, 1335

• Decision Date: 25 March 1960
• Docket Number: No. 1335,1335
• Citation: 119 So.2d 753
• Parties: H. P. GORDON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 753

119 So.2d 753

H. P. GORDON, Appellant, v. STATE of Florida, Appellee.

No. 1335.

District Court of Appeal of Florida, Second District.

March 25, 1960.

Rehearing Denied April 25, 1960.

D. M. Martin, Plant City, and Mark R. Hawes, Tampa, for appellant.

Richard W. Ervin, Atty. Gen., and Edward S. Jaffry, Asst. Atty. Gen., for appellee.

WARREN, LAMAR, Associate Judge.

Upon an information charging appellant, H. P. Gordon, and others, with conspiracy to commit perjury and subornation of perjury, and also charging James Busbee and Rollie Arnold with perjury, trial was had, and the felony convictions obtained under the information were reversed by the supreme court in the decision of Gordon v. State, Fla., 104 So.2d 524, and the cause remanded for new trial.

The trial of the present cause, pursuant to the mandate, was had and the jury returned its verdict finding the appellant to be guilty of conspiracy as charged in the first two counts and to be guilty of subornation of perjury as charged in the latter two counts of the information.

After the denial of appellant's motion for new trial and motion to arrest judgment, he was adjudged to be guilty as charged and sentenced, and this appeal followed seeking appellate review of the judgment and sentence.

The first point on appeal relates to the refusal by the court to give a charge and the sustaining of the state's objection to a statement of defense counsel made to a prospective juror, both charge and statement concerning the quantity of proof required in a subornation of perjury proceeding. We find that the court did not err.

During the voir dire examination counsel for the defendant stated:

'Now, I believe the court will instruct you, if he does at all along this line, that before you could convict Pat Gordon over there for offense of subornation of perjury you would have to be satisfied yourselves that the state had offered the testimony of two witnesses or the testimony of one witness and other corroborating circumstances equivalent to the testimony of two witnesses before you could vote to convict Pat Gordon sitting there of subornation of perjury.'

As to the requested instruction, an examination of it reflects that appellant desired the court to repeat the contents of counts three and four of the information, and then charge as follows:

'I further charge you, gentlemen of the jury, that the law of the State of Florida provided (sic) that before you would be justified in convicting the defendant, H. P. Hordon, for the offense of subornation of perjury as is contained in counts three and four of the information aforesaid, that you should be convinced beyond and to the exclusion of every reasonable doubt that the state has proved by the oaths of two witnesses or by oath of one witness and other independent and corroborating circumstances which you deem equal weight with another witness in truth of the charges. See Gordon v. State, 104 So.2d [at] page 530, and Yarbrough v. State , 83 So. 873, headnote 5.'

Appellant does not appear to contend that the state failed to establish his guilt through the required proof, but that in order lawfully to convict one of the offense of subornation of perjury the state must prove by the testimony of two witnesses, or the testimony of one witness and other corroborating circumstances, the truth of the charge; thus, under the statement and requested instruction above, the state would be required to offer such proof as to every element of the offense.

The problem simply stated becomes whether or not it is necessary for the state to establish each element of subornation of perjury, that is, the perjury and the inducement, through the testimony of two witnesses, or one witness and independent corroborating circumstances.

The element of the offense required to be established in perjury prosecutions is set forth in Tindall v. State, 99 Fla. 1132, 128 So. 494, at page 497, wherein the supreme court stated:

'To convict of the crime of perjury the offense must be proved by the oaths of two witnesses or by the oath of one witness and other independent and corroborating circumstances which are deemed of equal weight with another witness. Such is the rule now well established on authority. And the element of the offense which must be so proved is the falsity of the material matter sworn to.' Ward v. State, 83 Fla. 311, 91 So. 189; Ellis v. State, 83 Fla. 322, 91 So. 192; Yarbrough v. State, 79 Fla. 256, 83 So. 873.'

An examination of the Florida decisions relating to prosecutions for subornation of perjury fails to reveal a decision on the question. In 70 C.J.S. Perjury § 85, it is said that:

'In a prosecution for subornation, the essential elements of the crime of perjury, as alleged in the indictment or information, must be proved, as well as the fact that accused procured or induced the commission of the perjury with the requisite knowledge and intent.'

And in § 88 the following appears:

'There is authority to the effect that a conviction for subornation of perjury may be sustained on the testimony of a single witness, such as the perjurer, without corroboration either as to the subornation or as to the commission of the perjury. According to the weight of authority, however, the rule, which in some jurisdictions has been incorporated into statute, is that in a prosecution for subornation of perjury, as in a prosecution for perjury, discussed supra §§ 68-70, accused cannot be convicted on the uncorroborated testimony of a single witness as to the falsity of the matter alleged as perjury, as for example where the witness is the person suborned, since a conviction for subornation may be had only on the testimony of at least two witnesses or of one credible witness and corroborating circumstances, as to the actual commission of the perjury alleged. However, the procurement or inducement may be established by the uncoroborated evidence of a single witness who may be the suborned witness, although there is authority for the view that the uncorroborated testimony of the suborned witness is not sufficient.'

In Doan v. United States, 202 F.2d 674, the United States Court of Appeals, Ninth Circuit, in holding that as to the inducement, the testimony of a single witness was sufficient, stated at page 678:

'In discussing the question of the sufficiency of the evidence to support the subornation of perjury charge in Count IV, we bear in mind the rule laid down by this court in Catrino v. United States, 9 Cir., 176 F.2d 884, 888. There we stated that so far as the falsity of the oath was concerned,--the actual perjury,--it must be proved by the same quantum of proof required in perjury cases. We added: 'In a subornation of perjury case, proof that the defendant induced the commission of the offense, is not subject to this requirement.' This means that while it was incumbent upon the Government to prove that the testimony given by Georgia Martin before the Grand Jury was false, and to prove that it was thus false by two independent witnesses, or by one such witness plus corroborating circumstances, yet as to the element of subornation of the perjury, that is to say, as to whether the defendant induced the commission of the perjury on her part, 'the proof is the same as in all other crimes,--proof beyond a reasonable doubt.' As to the inducement, the testimony of Georgia Martin alone was sufficient so far as the rules here discussed are concerned.'

Also, see Culwell v. United States, 5 Cir., 194 F.2d 808, where it was held that the inducement of witnesses to commit perjury may be established by one witness' uncorroborated testimony, as the act of soliciting another to commit perjury does not involve the theory of oath against oath; also, Boren v. United States, 9 Cir., 144 F. 801, 75 C.C.A. 531; State v. Richardson, 248 Mo. 563, 154 S.W. 735, 44 L.R.A.,N.S., 307; State v. Bixby, 27 Wash.2d 144, 177 P.2d 689; Commonwealth v. Billingsley, 357 Pa. 378, 54 A.2d 705.

Inasmuch as the statement of law as urged during the voir dire examination, and as contained in the requested instruction does not reflect a proper statement of the law, appellant's complaint that the trial court erred in sustaining the objection to the statement and in refusing the instruction must fail.

Moreover, appellant's only record objection to the trial court's instructions to the jury was not directed to the failure to give the above instruction, but directed to a portion of the court's instruction on the question of conspiracy to commit perjury. Under the provisions of F.S. § 918.10(4), F.S.A., he may not now complain. An...