Sharron v. United States

• Decision Date: 05 April 1926
• Docket Number: No. 259.,259.
• Citation: 11 F.2d 689
• Parties: SHARRON v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

11 F.2d 689 (1926)

SHARRON v. UNITED STATES.

No. 259.

Circuit Court of Appeals, Second Circuit.

April 5, 1926.

John E. Judge, of Plattsburg, N. Y., for plaintiff in error.

Oliver D. Burden, of Syracuse, N. Y., for the United States.

Before ROGERS, HAND, and MACK, Circuit Judges.

HAND, Circuit Judge (after stating the facts as above).

The chief question is whether the indictment is good. At common law it was necessary, not only to allege as part of the "assignment of perjury," that the accused knew that the oath was false, and that in fact it was, but also what the truth was. Bartlett v. U. S., 106 F. 884, 46 C. C. A. 19 (C. C. A. 9); U. S. v. Pettus (C. C.) 84 F. 791. But the stringency of the law in relation to the crime has in some respects been moderated (R. S. § 5396 Comp. St. § 1687), and there seems to us no reason why, under R. S. § 1025 (Comp. St. § 1691), it should be any longer necessary to allege the truth.

The elements of the crime are quite adequately set out without that allegation, which is strictly not relevant at all; the truth being admissible only as evidence of the allegation of falsity.

We agree that Bartlett v. U. S. held the opposite, but Markham v. U. S., 160 U. S. 319, 16 S. Ct. 288, 40 L. Ed. 441, is not to the contrary, and we think the matter still fairly open. In Kovoloff v. U. S., 202 F. 475, 120 C. C. A. 605, the Circuit Court of Appeals for the Seventh Circuit squarely held that no such allegation was necessary, accepting my own decision in U. S. v. Freed (C. C.) 179 F. 236, to which I adhered in U. S. v. Salen (D. C.) 216 F. 420. That Circuit Court of Appeals had the same question before it in Baskin v. U. S., 209 F. 741, 126 C. C. A. 464, but curiously enough avoided a decision, apparently forgetting Kovoloff v. U. S. The indictment there alleged that the accused knew to be true certain facts, the opposite of what he swore. This was treated as the equivalent of alleging the truth of the facts which the accused was alleged to have known. Yet there was no allegation of their truth. Perhaps the distinction is too fine, and in any event the case can hardly be treated as an authority.

Hardwick v. U. S., 257 F. 505, 168 C. C. A. 509 (C. C. A. 9) was like Baskin v. U. S., in alleging only that the accused knew facts inconsistent with his oath, without alleging what was the truth. In Gregorat v. U. S., 249 F. 470 (C. C. A. 5) 160 C. C. A. 428, there was no allegation of the truth and the court recognized that the indictment would have been bad at common law. It appears to be an authority for the rule we adopt. In Atkinson v. State, 133 Ark. 341, 202 S. W. 709, a statute like R. S. § 5396, was held to justify the allegation of falsity,...