State v. Cerfoglio

• Citation: 213 P. 102,46 Nev. 332
• Decision Date: 05 March 1923
• Docket Number: 2501.
• Parties: STATE v. CERFOGLIO.
• Court: Nevada Supreme Court

213 P. 102

46 Nev. 332

STATE v. CERFOGLIO.

No. 2501.

Supreme Court of Nevada

March 05, 1923

Appeal from District Court, Washoe County; Thomas F. Moran, Judge.

On rehearing. Reversed and remanded, with directions to dismiss.

For former opinion, see 205 P. 791.

Frame & Raffetto, of Reno, T. J. D. Salter, of Winnemucca, and M. B Moore, of Reno, for appellant.

L. B Fowler, Atty. Gen., Robert Richards, Deputy Atty. Gen., and L. D. Summerfield, Dist. Atty., of Reno, for the State.

COLEMAN J.

A rehearing was granted in this case, upon which it was orally argued at considerable length. We do not deem it necessary to consider at this time more than two of the points disposed of in our former opinion.

One of the contentions of counsel, as presented in their original brief, and strenuously adhered to upon reargument, is that the state's case is made out merely by circumstantial evidence, as distinguished from direct and positive testimony, and that perjury can only be established by at least two witnesses testifying directly and positively, or by the direct and positive evidence of one witness, corroborated by facts and circumstances. In other words, it was argued that the crime of perjury could not be established by circumstantial evidence. In our former opinion we rejected counsel's contention, and held that perjury might be established by circumstantial evidence. We think that the conclusion which we reached is sustained by ample authority. It is not our purpose to restate our views at great length but to direct attention to a few authorities in addition to those cited in our former opinion, sustaining the conclusion reached therein.

In 3 Wigmore on Evidence, § 2041, the learned author, after devoting 27 pages to discussion of the rule contended for says:

"The rule is in its nature now utterly incongruous in our system. The quantitative theory of testimony, if consistently applied, should enforce a similar rule for every criminal charge, now that the accused is competent to testify. 'Oath against oath,' as a reason for the rule, is quite indefensible."

In the state of Texas it is provided by statute (Code Cr. Proc. 1879, art. 746) that:

"In trials for perjury, no person shall be convicted except upon the testimony of two credible witnesses, or of one credible witness corroborated strongly by other evidence as to the falsity of the defendant's statements under oath, or upon his own confession in open court."

Notwithstanding this statute, it was held in the case of Maines v. State, 26 Tex.App. 14, 9 S.W. 51, that there could be a conviction of perjury upon circumstantial evidence, the court quoting from section 387, Wharton on Criminal Evidence, as follows:

"The old text-writers, adopting the then current distinction between circumstantial and direct testimony, held that, to convict a witness of perjury, it was necessary that the falsity of his sworn statement should be testified to by two 'direct' witnesses. In view of the fact, however, that all testimony is now considered more or less circumstantial, this rule can be no longer regarded as operative; and we may view it as settled that whenever the falsity of the defendant's statement can be proved beyond reasonable doubt, then there may be a conviction."

The question again came before that court in Maroney v. State, 45 Tex. Cr. R. 524, 78 S.W. 696, where it said:

"Appellant insists that in case of perjury he cannot be convicted upon circumstantial evidence. To this we cannot agree. Since the decision in Maines v. State, 26 Tex. Crim. App. 14, 9 S.W. 51, this court has held that a conviction could be had upon circumstantial evidence in this character of prosecution"--citing authorities.

In 21 R. C. L. pp. 272, 273, it is said:

"The question has been raised as to whether circumstantial evidence alone is sufficient on which to base a conviction, and, while...