Nimmo v. State
| Citation | 603 P.2d 386 |
| Decision Date | 19 November 1979 |
| Docket Number | No. 5019,5019 |
| Parties | George M. NIMMO, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
| Court | United States State Supreme Court of Wyoming |
Terry W. Mackey, of Urbigkit, Mackey & Whitehead, P.C., Cheyenne, signed the brief and appeared in oral argument for appellant.
John D. Troughton, Atty. Gen., signed the brief and appeared in oral argument for appellee.
Before RAPER, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and GUTHRIE, J., retired. *
Appellant, George M. Nimmo, was found guilty of two counts of an indictment charging false swearing in violation of § 6-154.1, W.S.1957, as amended, now being § 6-8-102, W.S.1977, and it is from these convictions that he pursues this appeal. In his attack upon this conviction, four contentions are raised as follows:
1. This statute, now § 6-8-102, Supra, is unconstitutionally vague and is in violation of Art. 1, § 6, of the Wyoming Constitution and the due process clause of the Fourteenth Amendment to the Constitution of the United States.
2. Even if this statute is held to be constitutional, the indictment against appellant omitted a material element of the crime charged, denying him due process of law.
3. The trial court erred in limiting the cross-examination of DeLoyd Quarberg, a principal witness against defendant, for the purposes of attacking his credibility.
4. "The procedures followed by the State and the actions taken by the State throughout the proceedings when taken as a whole, deprived appellant of a fair trial in violation of the requirements of due process of law imposed upon the State."
We do not agree that any of these complaints require reversal of this case and will affirm.
If appellant were correct in his contention that the statute upon which these convictions rest is unconstitutional, this matter would be closed and we would go no further. However, we do not agree with this contention. The statute upon which this attack is mounted is as follows:
§ 6-8-102. False swearing other than in judicial or administrative proceeding; false claim or voucher.
Appellant rests the claim of unconstitutionality upon the failure to include in this statute words which directly and specifically require intent or knowledge. In his view, the statute and particularly the phrases "false claim" and "under penalty of perjury" considered in combination or singularly do not include a requirement of specific criminal intent which is a necessary element in perjury statutes. However, in considering the question, we must also consider the effect of the phrase "shall be guilty of false swearing." The language of the statute indicates a legislative intent to create the crime of false swearing. Therefore, in deciding the question this court must examine the nature and elements of the crime of false swearing.
Although the term, false swearing, is used interchangeably with perjury, there is a definite distinction, both at common law and under usual statutory schemes. The principal distinguishing factor is that perjury is committed only in a judicial proceeding whereas false swearing is not necessarily committed in a judicial proceeding but is rather the giving of false statement under oath. 3 Anderson, Wharton's Criminal Law and Procedure, § 1295, p. 654 (1957). Furthermore, false swearing was recognized as a distinct crime at common law where it was defined as knowingly and intentionally giving under oath a false statement. State v. Dowd, 201 N.C. 714, 161 S.E. 205, 206 (1931); State v. Coleman, 117 La. 973, 42 So. 471, 472, 8 Ann.Cases 880 (1906); see also Perkins, Criminal Law, p. 454 (2d Ed. 1969); 60 Am.Jur.2d, Perjury, § 2, p. 967.
Our statute omits mention of these elements entirely. Appellant claims that the statute is facially unconstitutional because of the failure to specifically include as a part of this offense the element of intent. The State in its brief concedes that it has found no similar statute, or one which so attempts to define the offense of false swearing in this manner. Nor have we found any other state statute defining the crime of false swearing that does not refer to "willful submissions," "knowing submission" or "knowing and willful."
The State, however, contends that the legislature in enacting the statute intended to provide that "it was a crime for someone to submit an intentionally untrue claim or voucher subject to and controlled by the elements of the crime of perjury," and argues in effect that the reference to perjury emphasizes the necessity of such intent. It has also been argued that the words "under penalty of perjury" represent the element scienter or Mens rea. This language tracks our constitutional provision Art. 16, § 7, Wyoming Constitution, and various statutory enactments which appear largely directed at elimination of the necessity of appearance before an officer authorized to administer oaths. See illustratively §§ 27-12-201 and 37-8-410(a), W.S.1977.
Perhaps the most widespread employment of the phrase "under penalty of perjury" is upon the income tax return forms. The only pertinent authority which has come to our attention holds that Congress used this phrase in order to make it easier for the taxpayer to submit a return by allowing a signature rather than requiring the execution of a formally notarized return. Cohen v. United States, 9th Cir., 201 F.2d 386, 393 (1953); Distefano v. Commonwealth, 201 Va. 23, 109 S.E.2d 497, 500 (1959).
Cases involving prosecution for filing false tax returns verified in such a manner, however, are not helpful. The federal statute which authorizes the use of the phrase "under penalty of perjury" upon the return is separate and apart from the penal statute under which such violations are prosecuted. These later statutes include the elements of "willfully" and "known to him to be fraudulent or false." They have no applicability to our problem, and we find no help in the determination of our query whether this phrase itself creates an inference that the elements of perjury were included, by this reference, and made a part of the statutes.
This court concedes that it has not found direct authority but finds that the phrase "under penalty of perjury" inferentially reflects the intentions of the legislature to require the element of intent. But such a phrase demonstrates the intent of the legislature to have it serve as an oath or affirmation. People v. Coleson, 25 Ill.App.3d 43, 322 N.E.2d 600, 602 (1975). Section 6-8-102, Supra, serves as a legislative warning that the execution and filing of such vouchers is not a casual matter; the execution is no less solemn than a verification and may impress the signer more than a perfunctory notarization. State v. Parmigiani, 65 N.J. 154, 320 A.2d 161, 162 (1974).
The issue that we must consider is whether § 6-154.1, Supra, is unconstitutionally vague and thus violative of appellant's rights by virtue of Art. 1, § 6, Wyoming Constitution and the Fourteenth Amendment of the Constitution of the United States. Appellant asserts that because of the legislative failure to set out the elements of Mens rea or intent that this statute is void because of vagueness and uncertainty. In making this argument, appellant relies upon this court's decision in State v. Stern, Wyo., 526 P.2d 344 (1974). There are, however, many factual distinctions which set Stern apart and make it inapplicable to the case at bar. It is to be noted that the present case deals with a common-law crime. A careful reading of Stern reveals that this court recognized the difference between common-law crimes and wholly statutory crimes. As this court said, " . . . because the offense declared in our statutes is not a 'larceny type' or 'burglary type' statute and therefore could not be said to carry with it the common-law concepts. . . . " State v. Stern, supra, 526 P.2d at 350. And this court placed emphasis upon words quoted from State v. A. H. Read Co., 33 Wyo. 387, 240 P. 208, 212-213 (1925), in Stern, which also recognizes these distinctions. Stern warns that the guidelines set forth in the opinion are inapplicable in determining the validity of statutes involving common-law crimes, and the rule in Stern requiring a statement of intent is to be applied only to statutory crimes.
Furthermore, we are not unaware of an old and firmly established rule that every law must be presumed to be constitutional and all reasonable doubt resolved in its favor. Sanchez v. State, Wyo., 567 P.2d 270, 274 (1977); Burton v. Union Pacific Coal Company, 18 Wyo. 362, 107 P. 391 rehearing denied 112 P. 841 (1910); and numerous other cases collected in volume 2, West's Wyoming Digest and Pocket Part, Constitutional Law, keynumber 48. Nor should an overnarrow meaning be applied in disregard of an obvious legislative intent.
Next, appellant contends that under this statute a person may be punished for submitting an erroneous claim of any kind, which might be attributable to miscomputation, clerical mistake or typing error, unless the words, false, in its context, may be said to encompass "intentionally and knowingly." The State relies upon the proposition that the legislature intended to make it a crime "to submit an intentionally untrue claim or voucher." We believe it is ridiculous to impute to the legislature an intention to include innocent acts as criminal felonies.
This court could merely...
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