People v. Albers

• Citation: 137 Mich. 678,100 N.W. 908
• Court: Supreme Court of Michigan
• Decision Date: 04 October 1904
• Parties: PEOPLE v. ALBERS.

100 N.W. 908

137 Mich. 678

PEOPLE v. ALBERS.

Supreme Court of Michigan

October 4, 1904

Exceptions from Superior Court of Grand Rapids; Richard L. Newnham Judge.

Gerrit H. Albers was convicted of perjury, and he brings exceptions. Reversed.

Where defendant was acquitted of the crime of bribery, alleged to have been committed as part of a conspiracy to obtain a water contract from a city council, evidence in a prosecution for perjury arising out of defendant's testimony in the former prosecution was inadmissible on the assumption that defendant had made himself a party to the conspiracy.

Wm. B. Brown, Pros. Atty., and Chas. E. Ward Asst. Pros. Atty, for the People.

Frank A. Rodgers and Myron H. Walker, for respondent.

CARPENTER J.

In May 1903, respondent was acquitted of the charge of corruptly offering to one Joseph Renihan, an alderman of the city of Grand Rapids, $3,000, with the intent to induce said Renihan to vote, as a member of the common council of the city of Grand Rapids, in favor of entering into a contract for the purchase of water, to be conveyed from Lake Michigan to said city, for municipal and other purposes. On that trial respondent was a witness in his own behalf. He corroborated the testimony of Renihan that he offered him $3,000 for his vote, and that he told him that one Dr. De Vries had sent him there; but he denied that De Vries had in fact sent him, and he testified that he made this offer with no corrupt motives, but in order to ascertain whether or not Renihan was an honest man. In the present case, respondent is charged with perjury in testifying that De Vries did not in fact send him to Renihan. He was convicted of that charge, and asks that conviction to be set aside upon many grounds.

First. Respondent claims that his acquittal by the jury of the charge of attempting to bribe Renihan is a bar to the prosecution of this suit. He sets forth 'that the question of fact as to whether this respondent was sent by the said De Vries or some one else, or went of his own accord, to see Renihan, was in issue upon said trial, and evidence was adduced upon the side of the people and of this respondent thereto, and the determination of the same was material to and necessarily involved in the determination of the guilt or innocence of this respondent upon said charge, and was necessarily passed upon and determined by the jury in arriving at their verdict.' In support of the contention that his acquittal of the charge of bribery is res adjudicata, defendant cites U.S. v. Butler (D. C.) 38 F. 498; Cooper v. Commonwealth, 106 Ky. 909, 51 S.W. 789, 59 S.W. 524, 45 L. R. A. 216, 90 Am. St. Rep. 275; Pettit v. Commonwealth (Ky.) 57 S.W. 14. In U.S. v. Butler, supra, respondent was first acquitted on the charge of selling liquor without payment of the tax. He was subsequently put on trial for perjury in swearing on his preliminary examination that he did not so sell liquor. It was held that the acquittal of respondent on the first charge was a bar to his prosecution on the second. In Cooper v. Commonwealth, supra, the respondent was first prosecuted for adultery and acquitted. It was held that this acquittal prevented his conviction in a prosecution, subsequently commenced, charging him with having committed perjury in the first suit in denying that he committed the adultery there charged. In Pettit v. Commonwealth, supra, respondent was first tried and acquitted on the charge of carrying a concealed weapon, viz., a pistol. It was held that this acquittal prevented his conviction on a prosecution, subsequently commenced, on the charge of committing perjury in testifying in the first suit that he was not guilty of the charge made against him.

These cases are authority for the proposition that an acquittal of a certain charge is a complete defense to a subsequent prosecution for perjury which is based upon the assumption that respondent was guilty of that charge. If this proposition be sound, and it has been denied (see State v. Caywood, 96 Iowa, 367, 65 N.W. 385; Hutcherson v. State [Tex. Cr. App.] 24 S.W. 908; People v. Sculley, 3 N.Y. Cr. R. 244), it has no application to this case. It is true that the perjured testimony under consideration was material, because it strengthened respondent's claim that he was not acting corruptly. But its falsity is not, legally speaking, inconsistent with respondent's innocence of the crime of bribery. Because respondent was innocent of that crime, it does not follow that all testimony tending to prove his innocence was true, and that all testimony tending to prove his guilt was false. It is not even certain that the jury who acquitted respondent of the charge of bribery foun that De Vries did not send him to Renihan. From the nature of the case this is a fact extremely difficult, if not impossible, to be proved. But if we assume that they did so find, as alleged in respondent's plea, it by no means follows that such finding is res adjudicata in this suit. The foregoing authorities certainly do not so hold. Because the people may not prosecute one for perjury upon the basis that he was guilty of the crime for which he has been acquitted, it by no means follows that they cannot prosecute him for perjury simply because the jury credited his perjured testimony, and particularly when the prosecution for the crime of perjury does not proceed upon grounds inconsistent with his innocence of the first charge. The verdict of the jury in the first case adjudged respondent innocent of the crime of bribery. By what reasoning can it be contended that it also adjudged him innocent of the crime of perjury in giving his testimony therein? He was not then tried for that charge, and he could not have been there convicted of it. If a prosecution on that charge had been at once instituted, the pendency of the first prosecution could not have been pleaded in abatement of the second; and it has been held that the judgment in the suit in which perjury is alleged to have been committed is inadmissible evidence on the question of guilt or innocence in the prosecution for perjury. See U.S. v. Burkhardt (C. C.) 31 F. 141; Estill v. State, 38 Tex. Cr. R. 255, 42 S.W. 305; State v. Caywood, 96 Iowa, 367, 65 N.W. 385; State v. Williams, 60 Kan. 837, 58 P. 476; People v. Sculley, 3 N.Y. Cr. R. 244; Hutherson v. State (Tex. Cr. App.) 24 S.W. 908.

The general proposition that one can escape punishment for perjury, because he succeeded in inducing a jury to credit his false testimony, is supported neither by authority nor by reason. If he could, then it is true, as stated by counsel for the people, that the law encourages parties, particularly respondents in criminal cases, to perjure themselves. We must declare that the law is guilty of no such folly. Is the rule changed by the fact that the suit in which credit was given to the perjured testimony was another suit between the same parties? We think not. 'The former verdict is conclusive only as to facts directly and distinctly put in issue, and the finding of which is necessary to uphold the judgment. The doctrine of estoppel (that is, the conclusiveness of a former judgment) is restricted to facts directly in issue, and does not extend to facts which rest in evidence, and are merely collateral. 'A fact or matter in issue is that upon which plaintiff proceeds by his action, and which the defendant controverts in his pleadings, while collateral facts are such as are offered in evidence to establish the matters or facts in issue.'' See Freeman on Judgments, � 257; Garwood v. Garwood, 29 Cal. 521; King v. Chase, 15 N.H. 16, 41 Am. Dec. 675. See, also, Wells, Res Adjudicata, p. 195; Burlen v. Shannon, 99 Mass. 202, 96 Am. Dec. 733; Dickinson v. Hayes, 31 Conn. 423; People v. Johnson, 38 N.Y. 65, 97 Am. Dec. 770.

Second. Immediately before the trial of respondent, several members of the jury had sat as jurors in the case of People v. Jacob P. Ellen, in which Ellen was convicted of accepting a bribe to vote as a member of the common council of the city of Grand Rapids in favor of the city's entering into the water contract heretofore referred to. It is urged that the fixed opinion thus formed that there was a corrupt plan to induce the city to enter into this water contract disqualified these men to sit as jurors on the trial of respondent. Was the existence of this corrupt plan a material fact respecting respondent's guilt or innocence? It certainly was not a fact necessary to be established, and it was not established, on respondent's trial. Would testimony tending to prove the existence or nonexistence of such plan have been material? If respondent willfully and falsely testified that De Vries did not send him to Renihan he was guilty of perjury. If he did not willfully and falsely so testify, he was not guilty of perjury. It is obvious that the existence or nonexistence of the corrupt plan to induce the city to enter into the water contract had no direct bearing on this issue. It is true that proof of the existence of such plan might have a tendency to increase the probability of respondent's guilt; but reflection will show that this is true only upon the assumption that respondent was a party to the plan, and this in turn rests upon the assumption that respondent did corruptly attempt to bribe Renihan. In other words, the corrupt plan was material to this issue only upon the assumption that respondent was guilty of the crime of bribery, for which he has been acquitted. Whatever we may think of the authorities (see U.S. v. Butler and Cooper v. Commonwealth, supra) which hold that such acquittal is a conclusive adjudication that respondent was not guilty of perjury in testifying to his innocence, there can be no doubt that it is a conclusive...