Schwartz v. Commonwealth

• Decision Date: 23 November 1876
• Citation: 68 Va. 1025
• Parties: SCHWARTZ v. COMMONWEALTH.
• Court: Virginia Supreme Court

68 Va. 1025

SCHWARTZ v. COMMONWEALTH.

Supreme Court of Appeals of Virginia.

November 23, 1876

S is examined as a witness against T charged with the crime of rape.He is asked if he and T had not agreed to commit the rape, and if he did not hear the cries of the girl whilst T had her in the bushes; and he denies both.The examination is interrupted for a few minutes, and the witness is retired into another room, when he states to two of the officers and another person, that to help T he had sworn falsely; and when his examination is resumed he says that he and T had agreed to commit the rape, and that he did hear the cries of the girl.S is then indicted for perjury in making his first statement.There is no evidence against him but his own statements.HELD: His statements are not sufficient to convict him.

This was an indictment for perjury in the hustings court of the city of Manchester.On the trial the jury found the prisoner guilty, and assessed his fine at one dollar, and the court sentenced him to imprisonment in the jail of the city for one year.There were a number of exceptions taken by the prisoner to rulings of the court; but this court only considered the question on the motion for a new trial on the ground that the verdict was not sustained by the evidence.The facts are set out in the opinion of Judge Staples.On the application of the prisoner this court awarded him a writ of error.

G Wise, for the prisoner.

The Attorney General, for the commmonwealth.

STAPLES J.

The prisoner was indicted for perjury in the hustings court of the city of Manchester, and was convicted and sentenced to confinement in the jail of the city for one year.After the verdict was rendered, he moved the court to grant him a new trial, upon the ground that the verdict of the jury was contrary to the law and the evidence.His motion was overruled, and the prisoner excepted.His bill of exceptions contains all the facts proved on the trial, from which it appears that the prisoner was examined as a witness upon the trial of Joseph Turner, before the mayor of Manchester, upon the charge of rape, and upon the examination the prisoner testified that he had no conversation or plot with the said Joseph Turner, before they left Manchester, to commit a rape upon Pallas Boyd; that he and Turner went to the locality of the alleged offence for the purpose of getting flowers, and that he heard no screams from the girl, Pallas Boyd, whilst Turner had her in the bushes; that the commonwealth's attorney asked that his testimony be written down; that a pause in his examination of two or three minutes ensued during which time the prisoner was retired from the witness stand; that the prisoner during this interruption stated to Mr. Fitzgerald, a police officer, to Mr. Redford, a bystander, and to the commonwealth's attorney, that he had sworn falsely in his testimony just given; that he had done so to screen Turner, and that when he went back on the stand he would tell the truth; that the prisoner was then put on the stand again as a witness, no other witness intervening, and testified that he and Turner had had a bargain and conversation about the girl before they left Manchester, and that he did hear screams from the girl while Turner had her in the bushes; and thereupon the said mayor refused to hear him further.It was further proved that the prisoner was not warned by said mayor that he had a right to refuse to answer questions put to him; that he had no counsel; that he appeared somewhat confused, but not more so than is usual with witnesses; and that he is in the fifteenth year of his age.And these were all the facts proved on the trial.

The charge in the indictment is of perjury in the first statement before the mayor; and the evidence relied on to establish the perjury is the contradictory statement before the same officer at a subsequent period of the same examination.As will be seen from the bill of exception, this contradictory statement was the sole and only proof adduced by the commonwealth in support of the indictment.

The question we are to determine is, was he properly convicted upon that evidence?

No rule is perhaps better settled than that to authorize a conviction of perjury there must be two witnesses testifying to the falsity of the statement, or one witness with strong corroborating circumstances of such a character as clearly to turn the scale and overcome the oath of the party and the legal presumption of his innocence.This rule is founded upon the idea that it is unsafe to convict in any case where the oath of one man merely is to be weighed against that of another.Lord Tenterden is reported to have said that corroborating circumstances are not sufficient, but that the contradiction must be given by two witnesses.But the rule is now settled otherwise; the confirmatory evidence however must be of a strong character, and not merely corroborative in slight particulars.

It was at one time held that when the same person has by opposite oaths asserted and denied the same fact, he may be convicted on either; for whichsoever of them is given in evidence to disprove the other, the defendant cannot be heard to deny the truth of that evidence, inasmuch as it came from him.But this doctrine has been long since exploded, and it is now held that the prosecuting attorney must elect which of the two oaths he means to rely upon as false, and he must prove the perjury in that particular statement.Two early English cases are sometimes cited as holding that the perjury may be established by proof of the contradictory oath merely without other evidence.One of these is an anonymous case decided by Yates, J. at the Lancaster assizes in 1764, and the ruling approved by Lord Mansfield.The other is the case of Rex v. Knill, a short report of which is found in a note in Barnwell & Alderson R., page 929.It is shown, however, in 2 Russell on Crimes, 652, that in each of these cases there were corroborating circumstances in addition to the contradictory oath.But if these cases even go to the extent which is claimed for them, they are overruled by the later English decisions.And it is now held by those courts that the defendant's own evidence upon oath is not sufficient of itself to disprove the evidence on which the perjury is assigned.

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