State v. Bixby, 29663.

• Decision Date: 14 February 1947
• Docket Number: 29663.
• Citation: 177 P.2d 689,27 Wn.2d 144
• Parties: STATE v. BIXBY.
• Court: Washington Supreme Court

177 P.2d 689

27 Wn.2d 144

STATE v. BIXBY.

No. 29663.

Supreme Court of Washington, En Banc

February 14, 1947

Rehearing Denied May 6, 1947.

Frank W. Bixby was convicted of subornation of perjury, and he appeals.

Affirmed.

MILLARD and SIMPSON, JJ., dissenting.

Appeal from Superior Court, Whatcom County; E. D Hodge, judge.

John A Kellogg, Joseph T. Pemberton, C. E. Abrams, J. W. Kindall and R. W. Greene, all of Bellingham, for appellant.

Frank W. Radley, Frank M. Allyn, Boone Hardin and Tom A. Durham, all of Bellingham, for respondent.

MALLERY Chief Justice.

The defendant was convicted of the crime of subornation of perjury. His motion for a dismissal for insufficiency of the evidence at the close of the state's case was denied. Motions for a directed verdict, in arrest of judgment, for a new trial, and for a suspended judgment were likewise denied, whereupon the defendant appeals.

Subornation of perjury is defined in Rem.Rev.Stat. § 2360, as follows: 'Every person who shall willfully procure another to commit perjury, in either degree, or to offer any false evidence, shall be guilty of subornation of perjury and shall be punished in the same manner as if he had himself committed the perjury so procured or offered the false evidence so offered.'

The requisites for an indictment for perjury or subornation of perjury are set forth in Rem.Rev.Stat. § 2072: 'In an indictment or information for perjury, or subornation of perjury, it is sufficient to set forth the substance of the controversy or matter in respect to which the crime was committed, and in what court or Before whom the oath alleged to be false was taken, and that the court or person Before whom it was taken had authority to administer it, with proper allegations of the falsity of the matter on which the perjury is assigned; but the indictment or information need not set forth the pleadings, record or proceedings with which the oath is connected, nor the commission or authority of the court or person Before whom the perjury was committed.'

Appellant contends that the information is fatally defective and hence the motion in arrest of judgment should have been granted. The body of the information is as follows: 'I, F. M. Hamilton, Prosecuting Attorney in and for the County of Whatcom, State of Washington, come now here in the name and by the authority of the State of Washington, and by this information do accuse Frank W. Bixby, with the crime of suborned perjury, committed as follows: then and there being in Whatcom County, Washington, that the said defendant, Frank W. Bixby, did willfully and unlawfully procure Rose Chapin to commit perjury in the first degree as follows and in this, to-wit: That heretofore, to-wit: on the 21st day of November, 1944, in the Superior Court of the State of Washington in and for Whatcom County, held in Bellingham, in said county and state, on said day, Before the Honorable Ralph O. Olson, presiding Judge of said Court, a certain issue in due form and manner joined in said Court, between the State of Washington, aforesaid, and one George Hanowell, upon a certain Information, then pending in said Court against the said George Hanowell, charging him in Six Counts of Carnal Knowledge of a Female Child, to-wit: Jane Doe, whose true name is Rose Chapin, and who was then of the age of fourteen (14) years, and not his wife, came on to be tried and was then and there in due form of law tried by a certain jury of the County, in due manner empanelled and sworn for that purpose and that then and there upon the trial of said issue, Rose Chapin, the Prosecutrix, of Whatcom County, Washington, did then and there appear and was produced as a witness for and on behalf of the State of Washington upon the trial of the said issue and the said Rose Chapin was then and there duly sworn as such witness as aforesaid, by the Honorable Ralph O. Olson, Judge of said Court; that the evidence which she should give to the Court and jury, hearing said issue between the said State of Washington and the said George Hanowell, the defendant, on the issue then pending, should be the truth, the whole truth and nothing but the truth, and the said Rose Chapin being so sworn, as aforesaid, did then and there, upon the trial of said issue, and it being a material inquiry, whether the said witness, Rose Chapin, did have sexual intercourse with and was carnally known by said George Hanowell, at any time within three years prior to the date of filing of the Information in the said cause, and that the said witness, Rose Chapin, had heretofore and under oath, admitted that the said George Hanowell had had sexual intercourse with her on six different occasions as charged in the Information and the said witness, Rose Chapin, did then and there, on the trial of the issue, as aforesaid, in the said cause, feloniously, willfully, falsely, corruptly, knowingly and contrary to such oath, depose and swear that the said defendant, George Hanowell, did not ever, at any time, have intercourse with her or carnally know her, the said witness, Rose Chapin, and which testimony was false. And so, the said R. M. Hamilton, Prosecuting Attorney of Whatcom County, Washington, as aforesaid, says that the said Rose Chapin, feloniously, willfully, falsely, corruptly, knowingly and contrary to such oath as aforesaid, in a manner and form aforesaid, did then and there commit the crime of perjury and that the defendant, Frank W. Bixby, at all times knowing such evidence so given by said Rose Chapin to be false and untrue, did wilfully, procure the said Rose Chapin to commit the crime of perjury and the defendant is therefore guilty of the crime of suborned perjury as provided by Remington's Revised Statutes of the State of Washington, Section 2360, and in such cases made and provided and against the peace and dignity of the State of Washington.'

Appellant contends that since one found guilty of subornation of perjury is punished in the same manner as if he had himself committed the perjury, he is therefore a principal as defined in Rem.Rev.Stat. § 2260, as follows: '* * * and every person who directly or indirectly counsels, encourages, hires, commands, induces or otherwise procures another to commit a felony, gross misdemeanor or misdemeanor, is a principal, and shall be proceeded against and punished as such * * *.'

He argues that the words of the above section, 'or otherwise procures another to commit a felony,' are modified by the prior words 'directly' or indirectly' and that an allegation of the means or manner by which the procuring was done must be set forth. Since no overt acts by him were directly alleged, the appellant contends the allegation that he procured Rose Chapin to commit the crime of perjury is a mere conclusion and the omission of such material allegations as to the means employed is a fatal defect in the information.

Similar objections were raised in State v. Porter, 105 Iowa 677, 75 N.W. 519, a case presenting a parallel set of facts and decided on statutes very like our own. We quote in extenso from this well-reasoned opinion and follow the rule therein laid down.

'The indictment in this case sets out the charging part of the indictment in the nuisance case; that Revell was a witness therein, duly sworn; and that 'the said J. N. Porter did then and there willfully, corruptly, and feloniously suborn and procure him, the said Frank Revell, falsely to depose and swear, upon his oath aforesaid, in substance and to the effect following.' Then follows what is charged as the false testimony. It is insisted that the simple statement that Porter did 'suborn and procure' Revell to testify falsely is not enough, but that the means or method employed ought to be set out. The indictment includes the language of the statute, and this is sufficient in all cases where the statute so far individuates the offense that the offender has proper notice, from the statutory terms, of the particular crime charged. Wharton Cr. Pl. & Prac. 220. This is not a case where there is necessity for so stating the particular facts constituting the inducement as to identify the transaction, nor is it one in which the method or means could have been lawful. If the defendant induced Revell to testify falsely, and did so knowingly, it is quite immaterial what means he used,--whether in themselves illegal or not. The crime does not inhere in the method or means, but in the result,--the procurement; and the defendant could be guilty of only one such offense as to a witness in a particular case * * *. One guilty of subornation of perjury has been adjudged an accessory Before the fact of perjury. Com. v Smith, 11 Allen, [Mass.,] 243. So it has been held that one charged with subornation of perjury may be presented in the same indictment with one accused of perjury, though each offense is made by statute a substantive felony. Com. v. Devine, 155 Mass. 224, 29 N.E. 515; Reg. v. Goodhall, Russ. & R. 461; Id., 2 Russ. Crimes, 622, note o. Under our statute, distinctions between accessories Before the fact and prinicipals are abrogated, and all must be indicted as principals. Code 1873, § 4314. And, where a crime may be committed by only one person, another may be joined in the indictment, and convicted, for aiding therein. State v. Comstock, 46 Iowa [265,] 266. In such cases the particular facts or method of aiding or abetting are not set out, the crime only being charged. Why should the particular facts constituting the procurement of one to commit perjury be particularly stated in an indictment for subornation thereof? It is made a distinct offense, under the statute; but this would not necessarily change the rule of pleading, more than to require the use of the language defining it in connection with...