Marvel v. The State

• Decision Date: 02 April 1925
• Citation: 33 Del. 110,131 A. 317
• Court: Supreme Court of Delaware
• Parties: ALVIN L. MARVEL v. THE STATE OF DELAWARE

131 A. 317

33 Del. 110

ALVIN L. MARVEL v. THE STATE OF DELAWARE

Supreme Court of Delaware

April 2, 1925

Supreme Court, January Term, 1925.

Writ of Error from Court of General Sessions for Sussex County.

Alvin L. Marvel was convicted of perjury in the court below. Conviction sustained.

For opinion in court below, see this volume, p. 102, 131 A. 313.

On March 6, 1922, a hearing was had before the Register of Wills for Sussex County on the probate of the alleged will of William S. Kinney, deceased. At that hearing the defendant Alvin L. Marvel, one of the testamentary witnesses, appeared and testified. His testimony was to the effect that on the second day of December, 1921, he left Wilmington on a Delaware Road train at 6:52 P. M., and arrived at the home of his sister, Mrs. Kinney, in Seaford, about ten o'clock. He met Mr. William S. Kinney in the dining-room of the house and during the evening Mr. Kinney asked him to witness a will. He further stated that they went into an adjoining room, and Mr. Kinney there acknowledged the signature to the will to be his and requested him (Marvel) to witness it, and that this took place between ten and twelve P. M. on December 2, 1921. He further testified that he left Seaford on the night train, leaving about 1:19 A. M., and went back to Wilmington.

At the June Term, 1922, Marvel was indicted for perjury growing out of the testimony above set forth. The indictment assigned as perjury the following statements of Marvel:

"That he, the said Alvin L. Marvel, signed the said alleged will as a witness at the request of William S. Kinney; that the said William S. Kinney acknowledged to him, the said Alvin L Marvel, that the signature affixed to said will was the signature of the said William S. Kinney; that the said William S. Kinney asked him, the said Alvin L. Marvel, to sign said will as a witness; that he, the said Alvin L. Marvel signed the said alleged will as a witness in the presence of him, the said William S. Kinney; that he, the said William S. Kinney, declared to him, the said Alvin L. Marvel, that the said alleged will was the last will and testament of him, the said William S. Kinney, and that he, the said Alvin L. Marvel, witnessed the said alleged will on the evening of the second day of December, A. D. 1921, between the hours of ten and twelve at the home of the sister of him, the said Alvin L. Marvel, in Seaford, Delaware."

At the trial considerable testimony was offered by the State to show that the signature to the will was not the signature of William S. Kinney, but was made in some artificial manner. This testimony included the testimony of a handwriting expert that the signature was what is known as a "carbon tracing," i. e., a carbon facsimile of a genuine signature traced over in ink. All of this testimony was objected to as being immaterial.

The State also proved that on the 19th day of December, 1921, seventeen days after the date of the disputed will William S. Kinney stated to his granddaughter, Mrs. Mary A. Hollis, that Mr. Henry White Baker had his will. The State further proved by Mr. Baker that on the 19th of December he had a will of Mr. Kinney's which he had had for several years prior to that date.

The State further proved by the conductor of the Delaware Road train leaving Wilmington at 6:52 on December 2, 1921, that no tickets or mileage were collected, nor cash fares paid to Seaford from Wilmington on that train. It was further proved by the conductor of the train leaving Seaford at 1:19 A. M. on the morning of December 3, 1921, that Alvin Marvel was not in any of the coaches or sleepers on that train.

The State further proved by William Kinney, the grandson of William S. Kinney, that he lived at his grandfather's house in Seaford during the month of December, 1921; that he never went to bed before ten or half-past ten on any of the Friday nights during that month; that on those nights he usually went to the theatre; that he did not come home before half-past ten; that he did not see Alvin Marvel on any of those Friday nights in his gandfather's house; and that if Marvel had been there on the first floor he would have seen him.

Six assignments of error have been filed, but the only question considered by this Court arises under the assignments which present the question that the evidence was not sufficient to warrant a conviction for perjury.

The judgment is affirmed.

James M. Tunnell and J. Frank Ball for plaintiff in error.

Clarence A. Southerland, Attorney-General, for the State.

WOLCOTT, CHANCELLOR, RICE and RODNEY, J. J., sitting.

OPINION

RODNEY, J.

The question for determination in this case is the much vexed question as to the quantum and character of proof necessary in order to sustain a conviction for perjury. A careful investigation discloses no case in this jurisdiction in which the question here involved has been presented and considered. State v. Fahey, 3 Penne. (19 Del.) 594, 54 A. 690, was not a prosecution for perjury, but for subornation of perjury, and there is abundant authority distinguishing the one from the other as to the application of the principles of evidence. It being then a case of first impression, it becomes our duty to carefully examine the cases upon the subject, with particular attention to the reasons underlying the decisions, and to adopt for this State such a rule as is consonant with our situation and condition and in harmony with modern principles of criminal law.

Even a casual examination of the authorities establishes the fact that the almost universal rule in other jurisdictions is that no conviction can be had in a perjury case without the direct evidence of two witnesses or of one witness with corroborating evidence of some character.

The rule itself when tested by Twentieth Century principles of criminal law and evidence is far from satisfactory, but the reasons underlying the rule are even more unsatisfactory than the rule itself. Perjury (with the exception of treason) is the sole survivor of the common law trials where the quantitative theory of evidence still prevails. In treason the numerical requirement of witnesses is provided by the Constitutions, both State and Federal, and the reasons for the requirement do not apply to cases of perjury. 4 Wigmore on Ev. (Md. Ed.) 2066 et seq.; Woodbeck v. Keller, 6 Cow. (N.Y.) 118.

It seems unnecessary for us to trace the rule of evidence in perjury cases to its origin in order to show its incongruity to modern conditions. This has been ably done in 4 Wigmore, 2040 et seq. The rule originally prescribed that two witnesses were necessary in order to sustain a conviction for perjury. This requirement was at least consistent with the quantitative theory of evidence. For a long time, however, two direct witnesses have not been required, or as Baron Watson quaintly expressed it in Reg. v. Braethwaite, 8 Cox Cr. Cas. 254, 444, "that rule has now exploded." Later cases have, however, generally held that one witness giving positive evidence is sufficient if supported by corroborating circumstances. It is apparent that this new rule is at least a partial abandonment of the quantitative theory of evidence and has engrafted on the law of evidence a requirement as to the credibility of evidence, for the circumstantial corroboration which it demands of the positive witness must rest in theory upon the necessity of inducing or compelling a belief in the testimony of the single direct witness.

Almost every case upholding the rule has given as its reason for so holding that otherwise there would "only be oath against oath"; that the oath of the defendant alleged to be perjured is measured against that of the prosecuting witness; that the scale of evidence is thus poised; and the equilibrium ought to be destroyed by material and independent circumstances before the defendant should be convicted.

This reasoning appears to be vulnerable from several angles. It is based upon the assumption that all oaths are of equal weight. It also assumes that the oath of the defendant given in the former proceeding which is alleged to be false is the defendant's oath in the perjury case on trial. This at least appears doubtful as it seems to make of the defendant a witness in the perjury case without his taking the witness stand and to clothe him with a presumption of truthfulness with no opportunity on the part of the prosecution to attack his credibility. Where the defendant becomes a witness in the perjury case and repeats the alleged false testimony given in the prior proceeding, then there...