People v. Greenwell

• Citation: 5 Utah 112,13 P. 89
• Court: Supreme Court of Utah
• Decision Date: 02 February 1887
• Parties: THE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. AMBROSE C. GREENWELL, APPELLANT

13 P. 89

5 Utah 112

THE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. AMBROSE C. GREENWELL, APPELLANT

Supreme Court of Utah

February 2, 1887

APPEAL from a judgment of conviction of the district court of the first district and from orders refusing a new trial, and to arrest judgment. The opinion states the facts.

Affirmed.

Mr. P H. Emerson and Mr. James N. Kimball, for the appellant.

Mr. W H. Dickson, for the respondent.

HENDERSON J. ZANE, C. J., and BOREMAN, J., concurred.

OPINION

HENDERSON, J.:

The defendant was convicted of perjury, and the case comes to us after motion for new trial, on statement, and motion in arrest of judgment, on objections to the indictment, and for alleged errors in the trial.

The objection to the indictment is that there is no averment that the grand jury before which the perjury is alleged to have been committed had jurisdiction of the matter then under investigation. The question was raised on the trial by objections to the introduction of any evidence, which was overruled and by requests to charge, which were denied, and after verdict by motion in arrest of judgment, which was denied. The indictment was as follows:

"The said Ambrose C. Greenwell is accused by the grand jury of this court, by this indictment of the crime of perjury, committed as follows:

The said Ambrose C. Greenwell on the second day of July, A. D. eighteen hundred and eighty-six, at the county of Weber, in said Territory of Utah, and within the jurisdiction of this court, before the grand jury of this court, then and there duly empanelled, and in session according to law, and engaged in the investigation of whether certain libelous matter had been published of and concerning O. W. Powers, Esq., and Sarah Herrick, was called as a witness. And the said Ambrose C. Greenwell had then and there administered to him by W. J. Wood, Esq., the duly appointed and acting foreman of said grand jury, and then and there duly authorized and empowered to administer the same, an oath then and there to speak the truth, the whole truth, and nothing but the truth, in the said matter then under investigation by said grand jury as aforesaid. Whereupon, it then and there became and was a question of fact, and a fact material to said matter under investigation by said grand jury, whether the said Ambrose C. Greenwell had on or about the 13th day of April, A. D. 1886, or at any time, seen said O. W. Powers and said Sarah Herrick on a roadway between the City of Ogden and the Town of Kaysville, in the territory aforesaid, together and under circumstances of personal association and intimacy, and to this question and matter of fact, he, the said Ambrose C. Greenwell, then and there did feloniously, willfully, wickedly and corruptly testify, depose, and swear, in substance and effect as follows:

"I know Judge O. W. Powers and Miss Sarah Herrick, of Ogden City, Utah. I saw them in company about two months ago (meaning thereby, on or about the 13th day of April, 1886), at about 10 o'clock in the evening. I was within five paces of them. They were on the side of the road; they had a carriage. He (meaning said O. W. Powers) was holding the horses by the lines, she (meaning the said Sarah Herrick) was standing on the ground near by the hind wheel of the carriage. I passed on the side of the carriage where she stood. I am well acquainted with Sarah Herrick." Then follow proper negative averments and conclusion.

The sufficiency of this indictment is to be tested by the statutes of this territory, and we refer to the following sections of the criminal practice act of 1878 as being applicable.

"Sec. 164. In an indictment for perjury, or subornation of perjury, it is sufficient to set forth the substance of the controversy or matter in respect to which the offense was committed, and in what court, or the persons before whom the oath alleged to be false was taken, and that the court or person before whom it was taken had authority to administer it, with proper allegations of the falsity of the matter on which the perjury is assigned; but the indictment need not set forth the pleadings, record, or proceedings with which the oath is connected, nor the commission, or authority of the court or person before whom the perjury was committed."

"Sec. 158. The indictment is sufficient if it can be understood therefrom (1) that it is entitled in a court having authority to receive it, though the name of the court be not stated; (2) that it was found by a grand jury of the district in which the court was held; (3) that the defendant is named, or, if his name cannot be discovered, that he is described by a fictitious name, with a statement that his true name is to the jury unknown; (4) that the offense committed was within the jurisdiction of the court, and is triable therein; (5) that the offense was committed at some time prior to the time of finding the indictment; (6) that the act or omission charged as the offense is clearly and distinctly set forth, without repetition, and in such a manner as to enable the court to understand what is intended, and to pronounce judgment, upon conviction, according to the right of the case.

"Sec. 159. Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in an indictment."

"Sec. 148. All the forms of pleading in criminal actions, and the rules by which the sufficiency of pleadings are to be determined, are those prescribed by this act."

And in relation to the hearing of cases in this court on appeals it is provided as follows:

"Sec. 376. After hearing an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties."

Section 164, above cited, is a substantial adoption of an English statute, which has been adopted by many jurisdictions in this country with more or less modification; and it has repeatedly been held, under similar provisions, that it is unnecessary to aver that the court had jurisdiction over the subject-matter under investigation at the time and in which the false oath is taken: State v. Newton, 1 C. G. Greene 160; State v. Keel, 54 Mo 182; Com. v....