Papas v. People
| Decision Date | 10 February 1936 |
| Docket Number | 13835. |
| Citation | 98 Colo. 306,55 P.2d 1330 |
| Parties | PAPAS v. PEOPLE. |
| Court | Colorado Supreme Court |
Rehearing Denied March 23, 1936.
Error to District Court, Pueblo County; William B. Stewart, Judge.
George Papas was convicted of perjury, and he brings error.
Affirmed.
William A. Bryans and S. Harrison White, both of Denver, for plaintiff in error.
Paul P Prosser, Atty. Gen., and Walter F. Scherer, Asst. Atty. Gen for the People.
The plaintiff in error, defendant below, was tried and convicted of perjury in the district court of Pueblo county and sentenced to the penitentiary for a term not less than one year nor more than eighteen months.
Defendant with his brother, operated a restaurant in Denver, Colo. They had in their service as a waitress one Helen Lombardi, who with Emma Lou Batcha was charged in the district court of Pueblo county with having committed the crime of aggravated robbery in that county on August 20, 1934. One of the defenses was an alibi. In that case plaintiff in error, Papas, testified for defendant Lombardi that she was in Denver working in his restaurant on the day the robbery was alleged to have been committed in Pueblo county. He was asked on cross-examination if he had not stated in substance to three officers, who he admitted were in his place of business in Denver on August 21, 1934, that Helen Lombardi was not in his restaurant all day on August 20, 1934. He denied that he had made such statement to them. All the officers testified that he did make the statement at the time and place mentioned. Clearly the fact of such statement having been made, if it was so made, was material to impeach his testimony given on the trial of Helen Lombardi to the effect that she was in Denver at work in his restaurant on the day she was charged with having committed a robbery in Pueblo. If Papas knowingly falsely testified under oath that he did not so state to the officers, he falsely swore to a fact material to the issue under investigation; namely, his credibility as a witness in the trial of Helen Lombardi. Nor did the materiality of such statement depend upon whether Helen Lombardi was or was not in fact in Denver at the time she was charged with committing a crime in Pueblo. The point in question was his credibility, and previous statements inconsistent with his testimony on the trial were material and admissible for consideration by the jury in determining what weight, if any, should be given to his testimony. To hold that perjury cannot be predicated on a false statement of fact under oath made with knowledge of its falsity, when that fact may be the determining factor in the minds of jurors as to whether they will believe his testimony and acquit, or disbelieve it and convict, would be saying to a witness, 'Your previous inconsistent statements are material to your credibility, but when your credibility is called in question you may lie about former inconsistent statements with impunity.' The law does not sanction such a fraud upon courts and juries.
In Thompson v. People, 26 Colo. 496, 59 P. 51, 53, we held that to be material to the issue the matter need not be on the primary issue raised by the plea or involved in the case, and we quoted with approval in that case the following from Dilcher v. State, 39 Ohio St. 130: 'A witness may be guilty of perjury not only by swearing corruptly and falsely to the fact which is immediately in issue, but also to any material circumstance which legitimately tends to prove or disprove such fact, or to any circumstance which has the effect to strengthen and corroborate the testimony upon the main fact.'
Having determined that perjury may be predicated on such false testimony, given with knowledge of its falsity, two things necessary to the disposition of this case remain for determination: (1) Is the information sufficient? (2) If so, did the evidence support the conviction under it? We think both questions must be answered in the affirmative. We shall consider them in order.
The information, omitting the formal parts, was as follows:
'* * * That George Papas on or about the thirteenth day of October, A. D. 1934 within the County of Pueblo, State of Colorado did then and there Before Division B of the District Court of the Tenth Judicial District of the State of Colorado, sitting within and for the County of Pueblo, State of Colorado, the Honorable John H. Voorhees, one of the Judges of said Court, presiding in a certain criminal case and prosecution coming on to be heard wherein the People of the State of Colorado were plaintiff and Emma Lou Batcha, alias Emma Lang, alias Mildred Phillips, and Helen Lombardi, alias Sylvia Stover, were defendants upon a certain issue therein between the People of the State of Colorado and the said Emma Lou Batcha, alias Emma Lang, alias Mildred Phillips, and Helen Lombardi, alias Sylvia Stover, of which said cause said court had full jurisdiction, and which was then and there tried by a jury in that behalf, duly sworn between the parties aforesaid, upon which trial the said George Papas then and there was cited as a witness for and on behalf of the said defendants, and was then and there duly sworn Before the said Honorable John H. Voorhees, Judge of the said court as aforesaid, by E. F. Nichols, the Clerk of said District Court, that the evidence which the said George Papas should give to the court then and there and to the jury so sworn as aforesaid, touching the matters in question in said cause wherein the People of the State of Colorado were plaintiff and Emma Lou Batcha, alias Emma Lang, alias Mildred Phillips, and Helen Lombardi, alias Sylvia Stover, were defendants, should be the truth, the whole truth and nothing but the truth, he, the said E. F. Nichols, as Clerk of said District Court aforesaid, then and there having full power and lawful authority to administer said oath to the said George Pagas in that behalf, and at and upon the trial of the issue so joined between the parties aforesaid, it then and there became and was material to said issue and point in question between the parties aforesaid as to whether the said George Papas at his place of business in Denver, Colorado, on the 21st day of August, 1934, stated to one Earl Dunlap, one Lee Raedal and one John Walker in substance as follows: That Helen Lombardi had not worked at his place of business on August 20, 1934, and that Helen Lombardi did not show up at all on Monday, August 20, 1934; and that the said George Papas, so sworn in said cause as aforesaid, then and there in the trial of the said issue, upon his oath aforesaid, feloniously, wilfully, corruptly and falsely, Before the said jurors so sworn as aforesaid, and the Honorable John H. Voorhees, Judge of said Court as aforesaid, did depose and swear among other things, in substance and to the effect following, that is to say: That he did not tell or say to the said Earl Dunlap, Lee Raedal and John Walker that Helen Lombardi had not worked at his place of business in Denver, Colorado, on the 20th day of August, 1934; and that he did not tell or say to the said Earl Dunlap, Lee Raedal and John Walker that Helen Lombardi did not show up at all on Monday, August 20, 1934; and whereas, in truth and in fact the said George Papas did then and there on the said 21st day of August, 1934, at his place of business in Denver, Colorado, tell and say to the said Earl Dunlap, Lee Raedal and John Walker, in substance, that the said Helen Lombardi had not worked at his place of business in Denver, Colorado, on the 20th day of August, 1934, and did tell and say to the said Earl Dunlap, Lee Raedal and John Walker in substance, on the said 21st day of August, 1934, at his place of business in Denver, Colorado, that Helen Lombardi did not show up at all on Monday, August 20, 1934, all of which he, the said George Papas, well knew, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the People of the State of Colorado.'
The information was attacked by demurrer, and to the ruling of the court thereon, adverse to defendant, appropriate exceptions were saved and error assigned. The grounds of attack necessary to be noticed were as follows:
(1) 'That said * * * Information does not state what matter was judicially pending, and does not state or specify the alleged public offense theretofore being investigated in this Court, and wherein and during which, the defendant is charged in this Information with corruptly violating an oath administered to him in said prior proceeding.'
(2) 'That the allegations contained in said Information are conclusions and not averments of fact.'
(3) 'That the * * * Information does not allege that the defendant testified to facts as being true, but which when he thus testified, he knew to be false.'
(4) 'That it appears from the allegations of the Information that the defendant made contradictory statements while not under oath from statements in said (information) alleged to constitute the assigned perjury, and that in this respect the said (information) wholly fails to allege the materiality and applicability of such alleged contradictory statement to the assigned perjury herein.'
Defendant contends that in the particulars specified the information does not comply with sections 6776 and 6779, C.L.1921, which are as follows:
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