State v. Aguilar, 13171

• Decision Date: 10 September 1982
• Docket Number: No. 13171,13171
• Citation: 103 Idaho 578,651 P.2d 512
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Guy Robert AGUILAR, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 512

651 P.2d 512

103 Idaho 578

STATE of Idaho, Plaintiff-Respondent, v. Guy Robert AGUILAR, Defendant-Appellant.

No. 13171.

Supreme Court of Idaho.

Sept. 10, 1982.

Jess B. Hawley, III, Boise, for defendant-appellant.

David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Timothy M. Walton, Deputy Atty. Gen., Boise, for plaintiff-respondent.

BAKES, Chief Justice.

The appellant Aguilar appeals his conviction for the crime of perjury. On June 28, 1978, Guy Robert Aguilar appeared before a Third District Court magistrate in two cases. One case was a civil contempt hearing in the case of Margaret Jo Aguilar v. Guy Aguilar, Case No. L-25615. The other was a reciprocal action, State of Oregon v. Guy Aguilar, Case No. L-25615RI. At that time, the child support administrator for the prosecuting attorney's office informed the magistrate that an order consolidating the contempt and reciprocal actions had been prepared, but had not yet been filed and received by the court. Nevertheless, the court decided to treat the two cases as being consolidated.

The magistrate first proceeded with the civil contempt case. The appellant was placed under oath. He testified and was found to be in contempt in court and was sentenced to thirty days in jail. The magistrate then turned to the reciprocal action. Apparently, the defendant had not been served with a summons and complaint for the reciprocal action and was unfamiliar with it. A short recess was held so that the appellant might familiarize himself with the contents of the complaint. Court was then reconvened, and Aguilar was called to the stand; however, no oath was given.

During Aguilar's examination, he was asked, "How much money do you have on you today? On your person?" Aguilar answered, "Thirty cents." After the hearing, Aguilar was taken to the Canyon County jail, and his personal property inventoried. Aguilar was found to have $85 in his wallet. Thereafter, the state filed an information charging Aguilar with perjury, a violation of I.C. § 18-5401. An amended information setting out the material facts with more specificity was later filed. During the trial, the tape recording of the magistrate's hearing was admitted into the record, but was not played to the jury. The magistrate who heard the two prior cases and a deputy court clerk testified concerning the events that occurred during the hearing of those two cases. A transcript from the recorded proceedings was admitted into evidence, but it contained only the alleged perjurous statement and none of the other testimony or proceedings from the prior two cases.

During the course of the trial there was a question of whether the two prior proceedings were properly consolidated, and whether the magistrate court had jurisdiction over Aguilar in the reciprocal action because no complaint in the matter had been served. Also, a question arose whether Aguilar had been under oath during his testimony in the reciprocal proceeding. The district judge listened to parts of the tape recording of the prior proceedings which were admitted into evidence and concluded as a matter of law that the two cases had been consolidated and that the oath which had been given at the beginning of the contempt proceeding was also effective in reciprocal proceeding. The judge also ruled that the defendant had consented to the magistrate court's jurisdiction in the reciprocal proceeding, because he did not object or ask for a continuance.

In instructing the jury, the judge gave the following instruction:

"[T]he court has determined, as a matter of law, that the accused did take an oath that he would testify truthfully before a competent tribunal in a hearing in which such an oath may be administered and that this hearing involved two different cases that were being considered together."

After deliberation, the jury returned a verdict of guilty against the appellant.

The appellant raises only two issues on appeal. First, he argues that the trial court erred in admitting parol testimony, particularly that of the court clerk and the magistrate, as proof of the judicial record contained in the tape recordings of the prior proceedings. It is clear, however, that the appellant did not object to the admission of the parol evidence at trial. In fact, much of the testimony of the magistrate and the clerk came in through cross examination by appellant's counsel. It is well established that this Court will not review the admissibility of evidence objected to for the first time on appeal or elicited by the objecting party. E.g., State v. Hatton, 95 Idaho 856, 866, 522 P.2d 64, 74 (1974). Therefore, we do not address that issue.

The second issue raised by appellant is that the trial court's finding and instruction that, as a matter of law, the defendant was under oath in the reciprocal action was error. Appellant bases this assertion upon the claim that the court had no jurisdiction over him for purposes of the reciprocal action at the time when the oath was initially administered to him in the civil contempt proceeding. It is therefore argued that the oath given in the contempt proceeding was not effective for purposes of the reciprocal action.

The appellant does not expressly state whether his concern is with a lack of subject matter or personal jurisdiction. However, it is clear that the attorney magistrate involved had subject matter jurisdiction over the reciprocal action. I.R.C.P. 82(c)(2)(C). As for personal jurisdiction, we agree with the trial court that the appellant must be deemed to have consented to the court's jurisdiction over him, because he did not object or raise as an affirmative defense the asserted lack of personal jurisdiction over him as required under I.R.C.P. 12(b) and 12(h), and participated in the proceeding.

The question thus remaining is whether the oath was effectively carried over to the reciprocal action, where the oath was administered prior to the commencement of the contempt proceeding. At the beginning of the contempt proceeding the magistrate made it clear that he was taking up both cases together. ¹ There is no question but that the oath was properly administered in the contempt proceeding and that the court had jurisdiction, both subject matter and personal, in that proceeding. By consenting to the court's jurisdiction over him in the reciprocal action, the appellant also acknowledged and consented to the magistrate's consolidation of the two proceedings. By so consenting to the court's jurisdiction over him in the reciprocal proceeding, and the consolidation of that action with the contempt proceeding, he continued to be answerable for the oath that he gave during the contempt proceeding. The judgment of conviction is therefore affirmed.

DONALDSON and SHEPARD, JJ., concur.

McFADDEN, Justice, dissenting.

I must dissent from the opinion of the majority because the trial court improperly directed the jury that as a matter of law Aguilar was under oath at the time of the alleged false statement. The elements of perjury as defined in I.C. § 18-5401 are (1) that defendant has taken an oath, (2) before a competent tribunal, officer or person, and (3) that he wilfully made a false statement (4) as to a material matter.

The state must allege and prove to the jury each essential element of the crime charged. See, e.g. State v. Dunn, 44 Idaho 636, 258 P. 553 (1927); State v. Scheminisky, 31 Idaho 504, 174 P. 611 (1918); Brooks v. U. S., 240 F.2d 905 (5th Cir. 1957).

It is plain that an essential element of the crime of perjury is that the accused shall have taken an oath before giving the alleged false testimony. Proof of the charge requires that sufficient evidence be adduced before the jury upon which it can be found beyond a reasonable doubt that an oath was administered to the defendant by some officer authorized to do so. Smith v. U. S., 363 F.2d 143 (5th Cir. 1966); Harrell v. U. S., 220 F.2d 516 (5th Cir. 1955). No fact can be taken away from the jury in a criminal case. U. S. v. Sheldon, 544 F.2d 213 (5th Cir. 1976); Roe v. U. S., 287 F.2d 435 (5th Cir. 1961).

Whether Aguilar was under oath at the time of the alleged false testimony was a question of fact for the jury and the court's determination that he was under oath as a matter of law was plain error. See generally Goins v. Commonwealth, 250 Ky. 636, 63 S.W.2d 794 (1933); State v. Mann, 219 N.C. 212, 13 S.E.2d 247 (1941); Brooks v. U. S., supra; Smith v. U. S., supra.

I would reverse the judgment of the trial court and remand the case for a new trial.

BISTLINE, J., concurs herein.

McFADDEN, J., submitted his opinion in this matter prior to his retirement on August 31, 1982.

BISTLINE, Justice, dissenting.

Justice McFadden's opinion is well-written, founded on sound principles of law and should have convinced the other members of the Court in the error of their ways. I join his opinion. Ordinarily, that would be the extent of my own participation in this case. However, when it initially befell my lot to draw this case, I necessarily became fully conversant with it and wrote a reversing opinion which failed to command a majority of the Court. Although I have never completely understood how the existing principles of law and the facts of this case could produce anything but an acquittal, I am mindful that although, in my opinion, the learned trial judge fell into error, he somewhat rectified the matter by the leniency of the sentence imposed. I am more than mindful that most prosecuting attorneys would not have prosecuted Aguilar on a perjury charge arising out of such confusion, and once again observe the awesome power given prosecutors with which they can wield or yield in their "prosecutorial discretion." In this instance, I think abstention would have been the better exercise of discretion. Nothing in the record suggests that the unrepresented Aguilar was a habitual criminal, see State v. Couch, 103 Idaho 205, 646 P.2d 447 (1982) ...