State v. Betts, 1007

• Decision Date: 13 February 1951
• Docket Number: No. 1007,1007
• Citation: 227 P.2d 749,71 Ariz. 362
• Parties: STATE v. BETTS.
• Court: Arizona Supreme Court

Page 749

227 P.2d 749

71 Ariz. 362

STATE v. BETTS.

No. 1007.

Supreme Court of Arizona.

Decided Feb. 13, 1951.

Leslie C. Hardy, Phoenix, for appellant.

Fred O. Wilson, Atty. Gen., Phil J. Munch, Asst. Atty. Gen., for appellee.

PHELPS, Justice.

This is an appeal by the defendant John H. Betts from a judgment entered upon a verdict of a jury finding him guilty of perjury. The charging part of the information against defendant reads as follows:

'In the name and by the authority of the State of Arizona John H. Betts is accused this 20th day of January, 1950, by the County Attorney of Maricopa County, State of Arizona, by this information, of the crime of Perjury By False Report Under Oath, a felony, committed as follows, to-wit:

'The said John H. Betts, on or about the 11th day of May, 1948, and before the filing of this information at and in the County of Maricopa, State of Arizona, by the president of a corporation, to-wit: Southwestern Mines, Inc., organized and doing business in this state, and as such president did, on or about the 10th day of May, 1948, subscribe and swear to the annual report of said corporation as required by Section 53-901 A.C.A. 1939, and did then and there wilfully, and feloniously make and deliver such report to the Arizona Corporation Commission, knowing the same to be false, in violation of Section 43-4206, A.C.A. 1939, contrary to the form, force and effect of the statute in such cases made and provided and against the peace and dignity of the State of Arizona.'

Section 53-901 A.C.A. 1939 provides that: 'Registration fee and report--Contents.--Every corporation organized or doing business in this state, except religious and other corporations not for profit, shall, in June of each year, pay an annual registration fee of fifteen dollars ($15.00) to the corporation commission, in addition to any specific license or other tax imposed by law upon such corporation; and at the time file with the said corporation commission a report subscribed and sworn to by its president and secretary, showing its assets, liabilities and accumulations, the amount of its capital stock paid up and issued, and a statement showing in detail all property both real and personal owned, leased or controlled by the corporation, and in what place or places the same is situated, and the value thereof.'

Section 43-4206 under which defendant was prosecuted, reads: 'False return or report under oath, perjury.--Every person who, being required by law to make any return, statement or report, under oath, wilfully makes and delivers any such return, statement or report, purporting to be under oath, knowing the same to be false in any particular, is guilty of perjury, whether such oath was in fact taken or not.'

The facts are that in May, 1948, defendant Betts was president of the Southwestern Mines Incorporated, a corporation organized and doing business in the state of Arizona and then engaged in the development or operation of mining property in Cochise County. At a meeting of the board of directors of the corporation on May 9, 1948, in Douglas, Arizona, the annual report of the corporation was discussed and prepared for filing with the Corporation Commission and was subscribed and sworn to by defendant as president of the corporation and by its secretary as required by the provisions of section 53-901, supra. May 9th was on a Sunday and by agreement among the members of the board of directors the annual report and other instruments prepared on that date including a mortgage given by the corporation in the sum of $181,826.46 in favor of Edna D. Betts, wife of defendant, and one Frances Riccardi, were all dated May 10, 1948. The annual report of the corporation was filed with the Corporation Commission the next day, May 11th. By whom it was actually delivered to the corporation for filing is not shown and the witness Eisenhart, an employee of the corporation commission who received and filed it, does not recall who presented or requested its filing but testified that it was received and filed in the regular course of business. The report showed the liabilities of the corporation to be $10,000 when in fact its liabilities were much in excess of $181,826.46, the amount of the mortgage above mentioned. It was upon this discrepancy that the perjury charge was prosecuted.

The defendant has specified a large number of errors which we will consider in the order of their specification, the first of which is that the court erred in not granting defendant's motion to dismiss the information both at the close of the state's case in chief and at the close of the entire case. The reason assigned is that it then appeared for the first time that the offense was committed partly in Cochise County and partly in Maricopa County whereas the information charged its commission in Maricopa County. Defendant contends that the information should have charged that the false report was made in Cochise County and filed in Maricopa County. We cannot agree with this contention. It is wholly immaterial where the report was made or where the oath was administered, or even whether the oath was valid. The gist of the offense lies in its wilful delivery to the Corporation Commission (knowing it to be false) for the purpose of having it filed in accordance with the provisions of section 53-901, supra. This section of the statute applies to foreign as well as domestic corporations. If the Southwestern Mines Incorporated had been incorporated in New York with its principal place of business in New York City and the report had been made and subscribed to under oath in that city certainly counsel could not logically contend that such fact would place defendant beyond the pale of the Arizona statute upon which this charge of perjury is predicated. If defendant's contention is correct the courts of this state in such cases would have no jurisdiction whatever in the prosecution of a defendant for perjury. In the absence of a Federal statute covering the subject matter, foreign corporations could violate the law with impunity. The cases cited by defendant upon the points raised have no application here. Specifications II, III, IV, V and VI are based upon the same grounds and are without merit.

Specification No. VII is based upon the following language in the oath to the effect that the report 'is a true and correct statement to the best of our knowledge and belief.' The defendant contends that this is not an unequivocal oath that the report is true but is merely made on information and belief and that therefore such oath cannot form the basis of a prosecution for perjury. He cites cases to support the proposition that an oath based upon information and belief will not form the basis of prosecution for perjury but there is a vast difference between an oath based upon one's own knowledge and one based upon information and belief. And there is a vast difference between the language of the statute under which those cases were prosecuted and the statute in the instant case. Let us assume, however, that the oath is technically equivocal. Does this relieve defendant from being subject to the provisions of the act? We think not. The purpose of this Act was to keep the Corporation Commission advised of the financial status of both foreign and domestic corporations, like the one here involved, and of their activity in the state. This information is necessary for the use of the commission in its exercise of a proper control over corporations such as granting or refusing permits to sell stock in the state. It also has the further purpose of enabling any one seeking information concerning the business affairs of such corporations to obtain the same through the public records kept by the Corporation Commission.

In order to prevent frauds from being perpetrated upon the public by means of false reports filed by such corporations the legislature enacted section 43-4206, supra. It will be observed that this section does not fall within the definition of perjury as denounced in section 43-4201, A.C.A. 1939, but is entirely in addition thereto and wholly separate therefrom. It follows that the rules with respect to the validity of the oath taken under the provisions of section 43-4201, supra, do not have any application whatever to the offense of perjury defined under the provisions of section 43-4206, supra. No authorities have been cited to support such a contention. The cases cited apply exclusively to perjury as defined under section 43-4201 and like statutes.

Again let us observe that the gist of the offense in the instant case consists not in the making and the signing of the report under oath but it lies in the wilful delivery to the Corporation Commission for filing, a false report purported to be under oath, knowing the same to be false. We thoroughly agree with the principles of law set forth in the cases from California and other states cited by appellant under statutes the same as section 43-4201. Under that statute the oath must be administered by one qualified to administer oaths and the oath must be valid and unequivocal but where the legislature sets up an entirely new combination of circumstances as it did in section 43-4206 which it says also constitutes perjury those rules have...