State v. Bingham

• Court: Kansas Supreme Court
• Writing for the Court: JOHNSTON, C. J.:
• Citation: State v. Bingham, 124 Kan. 61, 257 P. 951 (Kan. 1927)
• Decision Date: 09 July 1927
• Docket Number: 27,423
• Parties: THE STATE OF KANSAS, Appellee, v. WALTER BINGHAM, Appellant

257 P. 951

124 Kan. 61

THE STATE OF KANSAS, Appellee, v. WALTER BINGHAM, Appellant

No. 27,423

Supreme Court of Kansas

July 9, 1927

Decided July, 1927.

Appeal from Franklin district court; HUGH MEANS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PERJURY -- Information -- Sufficiency. A motion to quash an information charging perjury is held upon an examination of the averments of the information to have been properly overruled.

2. SAME--Information--Actual Facts Need Not Be Set Out. The charge of perjury set out questions asked and answers given by the accused in a proceeding in court, and the testimony so given was alleged to be material and false. That averment is held to be sufficient without setting out the actual facts by way of antithesis.

3. SAME--Prosecution--Election as to Transaction Relied On. Where there is a single assignment of perjury based on the alleged false testimony given in the trial of a former criminal case in which several transactions were involved, it is not error to refuse a motion to require the state in the perjury case to elect on which it would rely for a conviction.

4. SAME--Sufficiency of Evidence. The evidence examined and it is held that the allegations of the information were substantially proven.

5. SAME--Information--Materiality of Testimony. In the charge of perjury it was alleged that the false testimony given was material to the issues on trial and this allegation as to materiality was sufficient in the present case.

6. SAME -- Prosecution -- Materiality of Testimony Question for Court. The question of the materiality of the false testimony is one of law for the determination of the court.

7. SAME--Effect of Acquittal in Prosecution Where Testimony Given. The fact that there was no conviction in the criminal case wherein the testimony upon which perjury was assigned was given, does not prevent a conviction of perjury if the falsity of the evidence is duly established.

8. SAME -- An accused cannot escape punishment for perjury actually committed in a criminal case by his success in inducing a jury to credit his false testimony or by securing an acquittal of the offense charged.

Ralph E. Page, of Ottawa, for the appellant.

William A. Smith, attorney-general, and B. F. Bowers, county attorney, for the appellee.

OPINION

JOHNSTON, C. J.:

Walter Bingham was prosecuted upon a charge of perjury, and the trial resulted in a conviction.

In his appeal he complains that the information was defective in that the offense was not set forth with required fullness and certainty. He complains, too, of the denial of his motion to require an election by the state upon which of two transactions to which the alleged false testimony related it would rely for a conviction, also of the instructions given and of the overruling of his motion for a new trial.

The information in a single count charged that in a prosecution of the defendant in 1925 in the district court of Franklin county, upon a charge of larceny, he corruptly and falsely testified in answer to seventeen questions propounded to him in the larceny case. The following are the answers given by him in response to the questions asked:

"Q. Did you go to Vinland on the 28th day of November, 1924, and sell some chickens? A. No, sir.

"Q. Did you drive in a Ford runabout and sell some chickens there? A. No.

"Q. Did you take about four or five sacks of Plymouth Rock pullets into that Vinland store? A. I did not.

"Q. There has been introduced here a slip bearing the date of November 28, 1924, showing that a certain payment of $ 16 and some cents was made to one H. Johnson at Vinland. Was that made to you? A. No, sir.

"Q. Was you ever at the Vinland store? A. Not that I know of; no.

"Q. Have you ever been to Vinland? A. No, sir.

"(Referring to a check of October 11, 1924, made by Latham & Sons and written by Della Perkins, for $ 8.75, bearing the indorsement, 'H. Johnson, by Walter Bingham.')

"Q. Had you even seen it before that time? (Date of preliminary.) A. No, sir.

"Q. Did you ever sell them (chickens) at the place where Della Perkins works? A. No, sir.

"Q. Now you saw Mrs. Perkins there at that place where you sold these chickens, didn't you? A. I didn't.

"Q. Didn't see her there? A. Never sold no chickens there.

"Q. You never sold any chickens to her? A. No.

"Q. Never did? A. No, sir.

"Q. You are quite sure you never sold her any chickens? A. Never sold her any chickens; no, sir.

"Q. You gave her the name of H. Johnson? A. No, sir.

"Q. Now, you sad you didn't know whether you had ever been to Vinland or not. Can you tell the jury whether you have ever been to Vinland? A. I was not there.

"Q. You were not there? You are positive of that? A. Yes, sir.

"Q. You didn't take chickens up there and sell them and give the name of H. Davis? A. I did not."

It was alleged that the testimony so given by the defendant was competent and material and was known by him to be false when it was given.

He contends that the court erred in overruling the motion to quash the information upon the ground that it did not charge an offense. Upon this ruling he argues that the charge related to two distinct transactions, one relating to a sale of chickens at Vinland, under the name of H. Johnson, and another sale at Baldwin, under the name of H. Davis, and that both could not be included in a single count, and further, that it was rendered bad by reason of uncertainty. It was proper and necessary in the larceny case to charge as the state did, the different transactions in different counts, but the perjury committed at that trial could be treated as a single offense and included in a single count, and there was no error in that respect.

He urges further that the information was insufficient, in that the offense was not sufficiently stated by setting forth merely the questions and answers, with the conclusions that the answers were false. It is said that the prosecution should have set out at length the actual facts by way of antithesis. The questions and answers with the distinct allegation of falsity point out with reasonable certainty the charge which the defendant was required to defend. When the charge accomplishes that purpose it is not necessary to set out more fully the actual facts by way of...