State v. Ah Lee

• Citation: 18 Or. 540,23 P. 424
• Parties: STATE v. AH LEE.
• Decision Date: 04 March 1890
• Court: Supreme Court of Oregon

23 P. 424

18 Or. 540

STATE v. AH LEE.

Supreme Court of Oregon

March 4, 1890

Appeal from district court, Multnomah county; L.B. STEARNS, Judge.

The defendant, Ah Lee, was convicted of the crime of perjury from which judgment he has appealed. The indictment, after averring that a criminal charge was pending before the police judge of the city of Portland against one Pon Long, wherein this defendant was duly called and sworn as a witness, and that certain questions became and were material, which are fully set out in the indictment, proceeds as follows "The said Ah Jo, so sworn as aforesaid, then and there on said hearing, falsely, corruptly, willfully, knowingly and maliciously, before said court and magistrate, did depose and say, among other things, in substance and to the effect the following, that is to say: That the said Pon Long was engaged in the row which took place in Chinatown on the 2d day of December, 1888, and that the said Pon Long was present, on and in the neighborhood of Second and Alder streets, county of Multnomah, and state of Oregon, at the time that one Ah Lung was shot, and that Pon Long had assaulted the said Ah Lung with a revolver pistol charged and loaded with gun-powder and leaden balls, and that the said Pon Long inflicted a dangerous wound upon the said Ah Lung; whereas, in truth and in fact, the said Pon Long was not engaged in a row which took place in Chinatown on the second day of December, A.D.1888; and whereas, in truth, the said Pon Long was not present on Second and Alder streets, nor was he in the neighborhood of Second and Alder streets, in said city of Portland, county and state aforesaid, at the time said Ah Lung was shot; and whereas, in truth and in fact, the said Pon Long had not assaulted the said Ah Lung with a revolver pistol charged and loaded with gun-powder and leaden ball, nor had he assaulted him at all, or in any manner; and whereas, in truth and in fact, the said Pon Long did not inflict a dangerous or any wound upon said Ah Lung,--all of which facts the said Ah Jo then and there well knew; and the said false statements made so upon oath, by the said Ah Jo, were material to the questions and matters then and there being inquired into before the said magistrate; and the said Ah Jo did then and there, and thereby, commit willful and corrupt perjury." The defendant was indicted by the name of Ah Jo. The other facts appear in the opinion.

(Syllabus by the Court.)

An indictment which contains every allegation mentioned, in the form given in the appendix to the Criminal Code for such crime, is sufficient.

. In the trial of a criminal case, it is not competent for the prosecution to introduce hearsay evidence; and, when it becomes material to prove the time when a Chinese row occurred in the city of Portland, it was not competent for the prosecution to ask a car- driver, who was shown to have been in a distant part of the city at the time, if he heard of the row in Chinatown on that trip, not can he be permitted to state where he was when he first heard of the row.

"Hearsay," in its legal sense, denotes that kind of evidence which does not derive its value solely from the credit to be given to the witness himself, but rests also, in part, on the veracity and competency of some other persons.

In prosecutions for perjury, the common-law rule seems to be that the time when the crime was committed must be truly alleged in the indictment, and proved as laid.

Whether section 1274 has changed that rule, quaere?

W.H. Adams, for appellant.

H.E. McGinn, Dist.Atty., for the State.

STRAHAN, J. (after stating the facts as above.)

Upon the argument here, three points were insisted upon by the appellant's counsel: First, error in the court below in overruling the demurrer to the indictment; second, error in admitting hearsay evidence; third, a variance between the evidence and the indictment.

1. The objection to the indictment will first be considered. It is that it is not alleged in the indictment that the defendant knew that the testimony given by him was false. Much of the learning found in the books in reference to the sufficiency of an indictment for the crime of perjury, and the particularity requisite in such cases, has been rendered inapplicable by the provisions of the Code of Criminal Procedure. Section 1270, Hill's Code, provides: "The manner of stating the act constituting the crime, as set forth in the appendix to this Code, is sufficient in all cases where the forms there given are applicable; and, in other cases, forms may be used as nearly similar as the nature of the case will permit." It has been several times held by this court that this appendix was a part of the Code, and that the forms of indictments therein set forth were sufficient in all cases where they are applicable, ( State v. Dodson, 4 Or. 64; State v. Spencer, 6 Or. 152; State v. Brown, 7 Or. 186; State v. Lee Yan Yan, 10 Or. 365;) and it must not be overlooked that State v. Spencer, supra, was upon a charge of perjury. All the forms of indictments given in the appendix referred to are very concise and brief. The substance of the one for perjury is as follows: "On his examination as a witness duly sworn to testify the truth in the trial of an action at law, in the court of _______, between C.D., plaintiff, and E.F., defendant, which court had authority to administer said oath, he testified falsely that, [[stating the facts alleged to be false;] the matters so testified to being material, and the testimony being willfully false." It will be observed that this form does not require the averment used in common-law indictments immediately succeeding the assignments of perjury, to-wit: "All which statements made by the said J.S., the said J.S. then and there well knew to be false." Whart.Prec.Ind.[18 Or. 543] p. 577. It is true the pleader undertook to follow the common-law form, and probably intended to use the exact phraseology contained in the precedent, but by oversight varied the language thus: "All of which facts the said Ah Jo then and there well knew." This averment, or any equivalent for it, might have been omitted entirely, and still the indictment would have been sufficient, under our Code. It is not intended by this to suggest that knowledge of the falsity of the matters sworn to is eliminated from this crime. If such knowledge was a necessary ingredient of the crime before the enactment of the Code, it is so still. The Code has wrought no change in the substance of the crime. It has only abolished useless forms. Under the Code, this is not a matter of averment, but one of proof. The indictment...