McWhorter v. United States, 13693.

• Decision Date: 31 January 1952
• Docket Number: No. 13693.,13693.
• Citation: McWhorter v. United States, 193 F.2d 982 (5th Cir. 1952)
• Parties: McWHORTER v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

193 F.2d 982 (1952)

McWHORTER v.UNITED STATES.

No. 13693.

United States Court of Appeals Fifth Circuit.

January 31, 1952.

W. L. Longshore, Birmingham, Ala., for appellant.

George Huddleston, Jr., Asst. U. S. Atty., John D. Hill, U. S. Atty., Birmingham Ala., for appellee.

Before HOLMES, BORAH, and STRUM, Circuit Judges.

BORAH, Circuit Judge.

This is an appeal from a conviction for perjury.The indictment charged that on or about October 12, 1950, the defendant, Lola Mildred McWhorter, was duly sworn as a witness before the United States Commissioner for the Northern District of Alabama in a case involving a violation of Title 18, Section 2421, United States Code, and willfully, falsely and knowingly gave testimony material to the issues involved therein, namely, whether one Joseph Ralph Morrow had transported the defendant in interstate commerce for the purpose of prostitution.The indictment set forth that in the course of her testimony before the Commissioner she swore that she had entered into an agreement with Morrow to travel with him from Arab, Alabama to Chattanooga, Tennessee for the purpose of engaging in prostitution in Tennessee; that upon their arrival in Tennessee Morrow made arrangements for her to practice prostitution; and that she did so on one occasion.The indictment further charged that at the time the defendant gave this testimony before the United States Commissioner she knew it was false and perjurious and did not believe it to be true.

At the trial L. D. Redden, an Assistant United States Attorney, testified that he was present at the preliminary hearing before the Commissioner when the defendant was sworn as a witness and that she gave testimony on that occasion as set forth in the indictment.Redden further stated that the defendant appeared as a witness before the United States Grand Jury in April 1951, which was then inquiring into a complaint which charged Morrow with transporting the defendant in interstate commerce for the purpose of prostitution, and that she then swore that she had travelled from Alabama to Tennessee with Morrow on one occasion but that it was not the understanding or agreement between them that she would engage in acts of prostitution and that she did not practice prostitution on this trip.Whereupon she was asked whether she recalled giving testimony to the contrary before the United States Commissioner and she answered that she did recall her previous testimony under oath but that it was false and untrue.A special agent of the Federal Bureau of Investigation was called as a government witness at the perjury trial and swore that he was also present at the preliminary hearing before the United States Commissioner.In so far as here material, this witness merely corroborated Redden as to the defendant's testimony before the Commissioner.The only other witness offered by the prosecution was a member of the Grand Jury who corroborated Redden as to the statements made by defendant at its investigation.

At the close of the government's case the defendant moved for a judgment of acquittal.The motion was overruled and defendant declined to offer any evidence.

The important question presented by this appeal is whether the trial judge erred in overruling the motion for judgment of acquittal.

It is the general rule that to authorize a conviction for perjury the falsity of the statement alleged to have been made by the defendant must be established either by the testimony of two independent witnesses, or by one witness and independent corroborating evidence which is inconsistent with the innocence of the accused.United States v. Wood, 14 Pet. 430, 39 U.S. 430, 10 L.Ed. 527;Hammer v. United States, 271 U.S. 620, 46 S.Ct. 603, 70 L.Ed. 1118;Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495;Cook v. United States, 26 App.D.C. 427;Allen v. United States, 4 Cir., 194 F. 664, 39 L.R.A.,N.S., 385;United States v. Buckner, 2 Cir., 118 F.2d 468.

It is also generally held by the courts, in cases where the defendant has by opposite oaths affirmed and denied the same fact, that mere proof of the defendant's contradictory sworn statements without more is not sufficient to sustain a conviction for perjury.¹United States v. Wood, supra, 14 Pet. at pages 438, 441-442, 10 L.Ed. 527;Weiler v. United States, supra;United States v. Mayer, Fed.Cas.No. 15753;Phair v. United States, 3 Cir., 60 F.2d 953;Schwartz v. Commonwealth, 1876, 27 Grat., Va., 1025;State v. Burns, 120 S.C. 523, 113 S.E. 351, 25 A.L.R. 414;Williams v. State, 34 Ala.App. 462, 41 So.2d 605;Shoemaker v. State, 29 Okl.Cr. 184, 233 P. 489;Billingsley v. State, 49 Tex.Cr.R. 620, 95 S.W. 520;Smith v. Commonwealth, 180 Ky. 240, 202 S.W. 635, L.R.A.1918E, 927.

A third situation which has given the courts some concern is where, as here, the subsequent inconsistent or contradictory testimony is accompanied by an admission that the testimony previously given was false.In People v. Burden, 1850, 9 Barb., N.Y., 467, the defendant had made two contradictory statements under oath and in the second he had expressly acknowledged the intentional falsity of the first, and it was held that this acknowledgment was sufficient to establish the perjury of the first without further evidence.However, practically all of the authorities which have had occasion to consider the question have refused to follow People v. Burden, and have held that an admission in the second statement of the falsity of the first will not take the case out of the general rule that a conviction for perjury cannot rest upon the defendant's contradictory statements alone.Schwartz v. Commonwealth, 27 Grat., Va., 1025;State v. Burns, 120 S.C. 523, 113 S.E. 351, 25 A.L.R. 414;Williams v. State, 34 Ala.App. 462, 41 So.2d 605;Blakemore v....