State v. Daniels, 842--III

• Decision Date: 19 March 1974
• Docket Number: No. 842--III,842--III
• Parties: STATE of Washington, Respondent, v. Richard DANIELS, Appellant.
• Court: Washington Court of Appeals

Page 780

10 Wn.App. 780

520 P.2d 178

STATE of Washington, Respondent, v. Richard DANIELS, Appellant.

No. 842--III.

Court of Appeals of Washington, Division 3.

March 19, 1974.

Rehearing Denied April 18, 1974.

Review Denied June 24, 1974.

Mark E. Vovos, Spokane, for appellant.

Donald C. Brockett, Pros. Atty., Spokane, for respondent.

GREEN, Chief Judge.

Defendant appeals from a conviction of perjury in the first degree. He asserts the court erred in (1) refusing to dismiss the perjury charge because the testimony offered by the state was insufficient to prove the materiality of the perjured testimony; and (2) determining the question of materiality the previous proceeding before it. We the provious proceeding before it. We find no error.

The crime of perjury in the first degree is defined in RCW 9.72.010 as follows:

Every person who, in any action, proceeding, hearing, inquiry, or investigation, in any of which an oath may lawfully be administered, shall swear that he will testify, . . . truly, . . . and who, in any such acion . . . shall state or subscribe as true Any material matter which he knows to be false, shall be guilty of perjury in the first degree (Italics ours.) Any other false testimony is perjury in the second degree as defined in RCW 9.72.030.

The materiality of the false testimony is a question of law for the court to decide. State v. Carpenter, 130 Wash. 23, 28, 225 P. 654 (1924). In Carpenter, the court discussing the test of materiality, said at page 26, 225 P. at page 655:

It has generally been held by the courts and text writers that testimony upon which a charge of perjury may be based need not necessarily be concerning, nor directly relevant to, issues made by the pleadings, but it is sufficient for that purpose if it is material to any question that may properly arise in the trial of the case. It has also generally been held that perjury may be based on testimony going to the credibility of a witness, and this even though such testimony is legally immaterial or ought not to have been received. The gist of the rule laid down by the authorities is very well stated in 22 A. & E. Ency.Law 687, as follows:

'The test of materiality is whether the statement could have influenced the tribunal upon the question at issue before it. Any statements made in a judicial proceeding for the purpose of affecting the decision, and upon which the judge acted, are material. The matter sworn to need not be directly and immediately material. It is sufficient if it be so connected with the fact directly in issue as to have a legitimate tendency to prove or disprove such fact by giving weight or probability to the testimony of a witness testifying thereto, or otherwise.

'Perjury may be assigned upon false statements affecting only a collateral issue, as the credit of a witness, this being material to the main issue. Thus where, sue, as the credit of a witness, this being material to the main issue. Thus, where, for the purpose of testing his credit, a witness is asked on cross-examination whether he has ever been in prison for crime or convicted of a felony, the question is material, and a false answer constitutes perjury. But perjury cannot be assigned on the testimony of a witness on cross-examination affecting only his credit, where his evidence on direct examination was immaterial.'

See 3 R. Anderson, Wharton's Criminal Law and Procedure § 1309--12 (1957); 60 Am.Jur.2d Perjury § 11 (1972). RCW 9.72.020 provides:

It shall be no defense to a prosecution for perjury in the first degree that the defendant did not know the materiality of his false statement or that it did not in fact affect the proceeding in or for which it was made. It shall be sufficient that it was material and might have affected such proceeding.

(Italics ours.)

The perjury charge in the instant case arose from the following facts. In January 1971, defendant was tried and acquitted of the crime of carnal knowledge alleged to have been committed between August 1 and August 31, 1970. In that trial, he testified under oath that Lynette Daniels, who became his wife on October 24, 1970, moved in and lived with him during the entire month of August 1970; that she lived in his apartment continuously during that time; was there every night, and that Lynette Daniels was the only one that ever occupied his bed except a girl who slept with Lynette one night because of a fight with her boyfriend. Defendant denied any improprieties with the prosecuting witness and stated he never spent any time alone with her in his apartment. Lynette Daniels testified and confirmed the defendant's testimony. Subsequently, the prosecuting attorney learned that Lynette Daniels was not in Spokane during August 1970 and in fact never met the defendant until September 1970. As a consequence of this discovery, defendant was charged with perjury in the first degree, tried and convicted.

In the perjury trial, defendant's entire testimony in the carnal knowledge trial was read into the record by the court reporter. Lynette Daniels, who stated her name was really Sandra Bowman, testified that she...