Pilgrim v. State
| Decision Date | 09 October 1909 |
| Citation | 104 P. 383,3 Okla.Crim. 49,1909 OK CR 126 |
| Parties | PILGRIM v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Section 5333, Wilson's Rev. & Ann. St. 1903, provides: "The grand jury must appoint one of their number as clerk, who must preserve minutes of their proceedings, except of the votes of the individual members, and of the evidence given before them." Held, that this statute does not require that evidence before the grand jury be preserved. At most it means minutes of the evidence, which would be merely a memorandum.
Section 5347, Wilson's Rev. & Ann. St. 1903, provides: "A member of the grand jury may, however, be required by any court to disclose the testimony of a witness examined before the grand jury for the purpose of ascertaining whether it is consistent with that given by the witness before the court or to disclose the testimony given before them by any person upon a charge against him for perjury in giving his testimony or upon his trial therefor." Held, that this statute affirmatively establishes the competency of grand jurors as witnesses testifying orally as to the statements of defendant, made as a witness before the grand jury in a prosecution of said witness for perjury.
On a prosecution for perjury, consisting of testimony by defendant before a grand jury, which was investigating crimes committed in connection with the unlawful multilation and alteration of election returns, it was error to admit in evidence, and have read from the record, an address made by the presiding judge at the convening of the first term of the district court of the county; such evidence being irrelevant and calculated to mislead the jury as to the proper grounds and consideration upon which they should found their verdict, and therefore prejudicial to the defendant.
Section 2081, Wilson's Rev. & Ann. St. 1903, which declares that "'An unqualified statement of that which one does not know to be true is equivalent to a statement of that which one knows to be false"--should be construed with section 2074, Wilson's Rev. & Ann. St. 1903, which provides that: "Every person who, having taken an oath that he will testify, declare, depose or certify truly before any competent tribunal, officer, or person, in any of the cases in which such an oath may by law be administered willfully and contrary to such oath, states any material matter which he knows to be false, is guilty of perjury."
Perjury consists in swearing willfully and corruptly, contrary to the belief of the witness, not in swearing rashly and inconsiderately according to his belief.
Corrupt motive is indispensable to perjury; and one having knowledge respecting the fact, who testified, however positively, only what he believes to be true, can be guilty of no crime, although he was "mistaken."
A motion on the part of the defendant to direct a verdict of acquittal should be sustained, where the evidence is insufficient to show the commission of the offense charged.
See opinion for evidence stated, which is held to be insufficient to sustain a conviction for perjury.
Error from District Court, Alfalfa County; Milton C. Garber, Judge.
W. H. Pilgrim was convicted of perjury, and he brings error. Reversed.
Guy D. Talbot and Cloud & Halstead, for plaintiff in error.
Charles West, Atty. Gen., and Charles L. Moore, Asst. Atty. Gen. (C. H. Parker, of counsel), for the State.
At the June, 1908, term of the district court of Alfalfa county the plaintiff in error, W. H. Pilgrim (hereinafter designated as the defendant), was indicted for perjury. Upon this indictment the defendant was tried and convicted at the October term, 1908, of said court. The indictment, in substance, charges that in the county of Alfalfa and state of Oklahoma, on the 21st day of January, 1908, the defendant, W. H. Pilgrim, appeared before the grand jury of said county as a witness to testify as to certain matters in an inquiry then being held by said grand jury for the purpose of investigating a certain crime, or crimes, which had been committed in the proposed county of Alfalfa, state of Oklahoma, in connection with the unlawful mutilation, alteration, and falsification of certain election returns of the election held on September 17, 1907; that the defendant was by T. R. Couch, the foreman of the grand jury, sworn to testify the truth, the whole truth, and nothing but the truth; that it was and became a question of fact, material to said investigation by said grand jury, to determine the time when the ballot boxes and keys to the locks of election precinct No. 7 of the proposed county of Alfalfa, together with a part of the keys to the locks of the ballot boxes of election precinct No. 5 of said proposed county, which ballot boxes and keys, employed and used by the election boards in said election precincts in said election, were delivered by one J. D. Williams to the office of the county clerk of the proposed county of Alfalfa, at Cherokee; that the defendant did then and there falsely, corruptly, knowingly, willfully, maliciously, feloniously, unlawfully, and contrary to his said oath swear and testify, in substance and effect, that the ballot boxes and keys to the locks of same of election precinct No. 7, together with a part of the keys to the locks of the ballot boxes of election precinct No. 5, were delivered by one J. D. Williams to the office of the county clerk of the proposed county of Alfalfa, at Cherokee, on the 19th day of September, 1907, when in truth and in fact the ballot boxes and keys to the locks of same of election precinct No. 7, together with a part of the keys to the ballot boxes of election precinct No. 5, were not delivered by J. D. Williams to the office of the county clerk, at Cherokee, on the 19th day of September, 1907, but were so delivered by said J. D. Williams to the office of the county clerk, at Cherokee, on the 18th day of September, 1907; that in all of said particulars the testimony, statements, and declarations so sworn and testified unto by the said W. H. Pilgrim were then and there material matters in and to the said investigation and inquiry by said grand jury, and were then and there not true, but false, as the said W. H. Pilgrim then and there well knew. The jury returned a verdict of guilty on October 8, 1908. On October 10th defendant filed his motion for a new trial, which motion was on the same day overruled by the court, and exception allowed. On the same day the court pronounced judgment on the verdict, and sentenced the defendant to serve a term of two years' imprisonment in the state penitentiary, and from that judgment and sentence he has appealed to this court.
The case was argued orally before the full bench, and able and elaborate briefs were submitted by counsel for the defendant and for the state. We have carefully read the evidence; and, having reached the conclusion that the judgment in this case cannot be permitted to stand, for this reason we see no occasion for following counsel in their learned discussion of all the various errors assigned. We will therefore only discuss a few of the most important questions presented.
Counsel for the defendant contend: That the testimony of certain grand jurors concerning the proceedings of the grand jury, and the evidence introduced before it, including the administering of the oath to, and the testimony given by, the defendant, was incompetent and inadmissible, for the reason that it was not the best evidence of the proceedings of, and the evidence given before, the grand jury, and that parol proof was not admissible. Section 5333, Wilson's Rev. & Ann. St. 1903, provides: "The grand jury must appoint one of their number as clerk, who must preserve minutes of their proceedings, except of the votes of the individual members, and of the evidence given before them." This statute does not require that evidence before the grand jury be preserved. At most it means minutes of the evidence, which would be merely a memorandum. This would authorize oral evidence. Section 5347, Wilson's Rev. & Ann. St. 1903, provides: "A member of the grand jury may, however, be required by any court to disclose the testimony of a witness examined before the grand jury for the purpose of ascertaining whether it is consistent with that given by the witness before the court, or to disclose the testimony given before them by any person, upon a charge against him for perjury in giving his testimony or upon his trial therefor." This provision of our statute affirmatively establishes the admissibility of such testimony. By virtue of this provision the evidence of the grand jurors was clearly competent.
It is also contended that the court erred in admitting in evidence, over the objection of the defendant, the remarks of the trial judge, made at the convening of the first term of the district court of Alfalfa county. These remarks were spread upon the record of the court, and are as follows:
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