Hourie v. State

Decision Date09 November 1982
Docket NumberNo. 1294,1294
Citation53 Md.App. 62,452 A.2d 440
PartiesGeorgeine Emilio HOURIE v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Lynn Leonhardt, with whom were Miller, Wheeler, Thompson & Thompson, Easton, on the brief, for appellant.

Patricia E. McDonald, Asst. Atty. Gen., with whom Stephen H. Sachs, Atty. Gen., Sidney S. Campen, Jr., State's Atty., for Talbot County and Jane Tolar O'Connor, Asst. State's Atty., for Talbot County on the brief, for appellee.

Argued before THOMPSON, * MOYLAN and MacDANIEL, ** JJ.

MOYLAN, Judge.

A healthy legal system should strive constantly for greater harmony and should, even when it cannot always eliminate existing disharmony, avoid adding new disharmony. It is against the backdrop of that ideal that we review the convictions of the appellant, Georgeine Emilio Hourie, for welfare fraud and false swearing. She was tried by Judge Donaldson C. Cole, Jr., sitting without a jury, in the Circuit Court for Talbot County. She was convicted of nine separate charges and given concurrent sentences as to each. The nine convictions break out into two discrete categories: (1) a conviction under the sixteenth count for welfare fraud; (2) convictions under the first eight counts for violations of Md.Ann.Code Art. 88A, § 62(a) (1979 & Supp.1981). That section reads, in pertinent part:

"Every application for money, ... food stamps, ... or other assistance ... shall be in writing and signed by the applicant. Any person who in making and signing such an application makes a false or fraudulent statement with intent to obtain any such money, ... food stamps, ... or other assistance is guilty of perjury and upon conviction therefor is subject to the penalties provided by law for perjury."

The crime is loosely labeled "welfare perjury."

The appellant's first contention questions the legal sufficiency of the evidence to convict on those eight counts of welfare perjury. The challenge is twofold. The appellant first attacks the legal sufficiency of the evidence, under the ordinary test for measuring legal sufficiency, to sustain the convictions for welfare perjury. The appellant then mounts the additional and very narrow legal challenge that even granting the adequacy of the evidence under a normal standard of review, the evidence is nonetheless insufficient in the special case of perjury because of the "two-witness rule" governing perjury trials. This challenge calls upon us to examine the origins of that two-witness rule, its purpose (if any), and, consequently, its applicability to this case. There is room for such considerations of policy, for we are not bound by stare decisis. This is because we are not dealing literally with common law perjury.

Common Law Perjury

Common law perjury was and is the giving of a false oath in a judicial proceeding in regard to a material matter. R. Perkins, Criminal Law 454 (2d ed. 1969); State v. Mercer, 101 Md. 535, 61 A. 220 (1905). Its dim beginnings are to be found in the ecclesiastical courts. Its essential nature was the violation of an oath sworn before God. 1 The original perjurious oath was, moreover, not the false oath of a witness (for witnesses were a yet-unheard-of development in the trial practice of the day) but the false oath of the jury, when it was deemed to have returned a bad verdict contrary to its oath. The birth of the modern concept of perjury by a witness can be traced to the statute of 11 Hen. VII, c. 21 in 1495. 4 W. Holdsworth, A History of English Law 517-518 (1924). For the next century and a half, the high misdemeanor 2 of perjury was developed almost exclusively in the prerogative court of the Star Chamber. T. Plucknett, A Concise History of the Common Law 459 (5th ed. 1956). It sought to guard society's interest in the integrity of sworn statements in judicial proceedings. It was limited to the false testimony given under oath about a material matter and before a judicial tribunal.

When, as an integral part of the larger Seventeenth Century struggle of Cromwell versus King, of Parliamentarian versus Royalist, and of Puritan dissent versus Established Church, the common law triumphed over and virtually obliterated its rival legal system of the prerogative courts, 3 the Court of Star Chamber was abolished in 1640. 4 Much of the productive output of the Star Chamber, however, especially the development of the major misdemeanors, was recognized as worthy of preservation and was taken over by the common law courts. The misdemeanor of perjury was one of those legacies from the now-dead Civilian tradition. By the time that perjury was firmly settled in its new common law home (the early 1700's), it was noted that it, alone among the legacies, had brought with it from its Civilian origins, the procedural baggage of the "two-witness rule." 5 By accident or by design, a defendant could not be convicted of perjury except upon the testimony of two witnesses. Of all the crimes prosecuted at the common law, perjury was unique in this special burden of production. 6

False Swearing

It was over a century after the reception of perjury into the common law, that English judges began to recognize related problems with respect to the integrity of sworn statements that came to be required in many matters other than judicial proceedings. The common law responded to this newly perceived need by providing a penalty for wilful and corrupt false swearing in such nonjudicial settings. The name "perjury" was not employed for the new crime. It was generally known as "false swearing." R. Perkins, Criminal Law 454-455 (2d ed. 1969). 7 In Rex v. De Beauvoir, 7 Car. & P. 17, 173 Eng.Rep. 8 (1835), Lord Denman said of such a case, "It is not, properly speaking, perjury because the same consequences do not attach. But it is a misdemeanor in falsely taking an oath which a party is required by Parliament to take before a magistrate." Professor Perkins defined the newer crime:

"False swearing is what would be perjury except that it is not in a judicial proceeding but in some other proceeding or matter in which an oath is required by law." R. Perkins, supra, at 454.

We can find no evidence that the two-witness rule of perjury was ever applied to prosecutions for false swearing; in candor, we find no evidence to the contrary either. The subject has simply not attracted significant attention.

The All-Embracing Maryland Statute

One thing is certain. The Maryland statute proscribing perjury now embraces both common law perjury and also those various other false oaths that would have constituted false swearing. Md.Ann.Code Art. 27, § 435 (1982) provides:

"An oath or affirmation, if made willfully and falsely in any of the following cases, shall be deemed perjury: First, in all cases where false swearing would be perjury at common law; secondly, in all affidavits required by law to be taken; thirdly, in all affidavits to accounts or claims made for the purpose of inducing any court or officer to pass the accounts or claims; fourthly, in all affidavits required to be made to reports and returns made to the General Assembly or any officer of the government; fifthly, in all affidavits or affirmations made pursuant to the Maryland Rules or Maryland District Rules." (Emphasis supplied.)

The statute in part declares the common law and in part supplements it. 8 Perjury was part of the common law to which the inhabitants of Maryland became entitled in 1776 by Art. 5 of our Declaration of Rights. Deckard v. State, 38 Md. 186, 201-202 (1873). As Judge Orth (specially assigned) pointed out for this Court in State v. Levitt, 48 Md.App. 1, 9, 426 A.2d 383 (1981), "In the statute, perjury encompasses common law perjury as well as other acts which at common law constituted the lesser crime of false swearing." Some of the acts proscribed by the statute are not common law perjury. They are, however, indisputably part of "the perjury family."

The Question

With respect to common law perjury proper, the English burden (in mildly relaxed form) has been the traditional Maryland burden as well. Brown v. State, 225 Md. 610, 171 A.2d 456 (1961). It is only where the perjury is proved by circumstantial evidence, that the common law burden is inapplicable. Smith v. State, 51 Md.App. 408, 443 A.2d 985 (1982). The issue of first impression before us is whether that two-witness rule (in its relaxed form) should be held to embrace the entire perjury family or should be limited to common law perjury. 9 This narrow crevice of unresolved law is one wherein courts, in the words of Justice Holmes, legislate interstitially. 9A

As we do so, a decent respect for the process dictates that we set out the principles that will guide us. If this extraordinary burden of production is found to be the bright new vision of the future or to serve a necessary or beneficient purpose, we will give it an expansive reading and hold it to cover not only the core crime but the statutory penumbra as well. If, on the other hand, we find it to be an incongruous oddity, entombed like some ancient fly in amber and preserved beyond its time by a fluke of history, we will confine it strictly within the bounds dictated by stare decisis.

The Answer

We find the latter to be the case. In opting for tight containment, we are convinced that the two-witness rule is an alien from a long-dead world that was, during the English Civil War, accidentally caught in a time warp.

The scholarship on this strange history is almost exclusively the thoughtful product of Dean Wigmore. 10 The case law, unfortunately, is little more than the mindless application of scissors and paste, with no intervening critical judgment. It is the classic conflict between the statesman and the file clerk, between the thinker and the computer. Under the general heading of "Synthetic (or Quantitative) Rules," Wigmore demonstrated meticulously that the civil law (including its English manifestations) was one where the "process of...

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  • O'Sullivan v. State
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    • Court of Special Appeals of Maryland
    • December 17, 2021
    ..."of the oath as a formal act, mechanically and ipso facto efficacious ... and quantitative in its nature." Hourie v. State , 53 Md. App. 62, 70-71, 452 A.2d 440 (1982) (" Hourie I ") (internal quotation marks and emphasis omitted). Under those courts' quantitative system of proof, "a degree......
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    ...reenacted in 1965 P.A. 401 with minor changes.8 An interesting discussion of this early development can be found in Hourie v. Maryland, 53 Md.App. 62, 452 A.2d 440 (1982), aff'd. 298 Md. 50, 467 A.2d 1016 (1983).9 See American Civil Liberties Union v. Los Angeles Bd. of Ed., 59 Cal.2d 203; ......
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