State v. Douglas

• Decision Date: 30 May 1986
• Docket Number: No. 85-245,85-245
• Citation: 388 N.W.2d 801,222 Neb. 833
• Parties: STATE of Nebraska, Appellee, v. Paul L. DOUGLAS, Appellant.
• Court: Nebraska Supreme Court

Page 801

388 N.W.2d 801

222 Neb. 833

STATE of Nebraska, Appellee, v. Paul L. DOUGLAS, Appellant.

No. 85-245.

Supreme Court of Nebraska.

May 30, 1986.

Syllabus by the Court

1. Criminal Law. There are no common-law crimes in the State of Nebraska.

2. Criminal Law: Legislature: Statutes. No act is criminal unless the Legislature has in express terms declared it to be so, and no person can be punished for any act or omission which is not made penal by the plain import of written law.

3. Criminal Law: Statutes. It is a fundamental principle of statutory construction that a penal statute is to be strictly construed.

4. Criminal Law: Oaths and Affirmations: Perjury: Statutes. To sustain a conviction for perjury outside a judicial proceeding, there must exist a valid statute which requires the making of a statement under oath.

5. Criminal Law: Oath and Affirmations: Perjury: Statutes. For an oath to be "required by law" as a foundation for the crime of perjury in violation of Neb.Rev.Stat. § 28-915(1) (Reissue 1985), a specific statute must explicitly require that an oath be administered.

William E. Morrow, Jr., Thomas J. Culhane, and Tamra L. Wilson of Erickson & Sederstrom, P.C., Omaha, for appellant.

Kirk E. Naylor, Jr., and Vincent Valentino, Sp. Pros., for appellee.

BOSLAUGH, HASTINGS, SHANAHAN, and GRANT, JJ., and MORAN and HOWARD, District Judges, and COLWELL, District Judge, Retired.

PER CURIAM.

On February 9, 1984, the Special Commonwealth Committee of the Nebraska Legislature authorized the chairperson of the committee to set a date, time, and place for a committee meeting to consider the actions of Paul Douglas in relation to Commonwealth Savings Company. The committee also described the procedures to be followed at the meeting pursuant to rules of the Nebraska Unicameral. Each witness appearing before the committee was required to take an oath or affirmation to tell the truth. On February 13 Richard Kopf, special counsel for the committee, sent a letter requesting that Douglas appear and testify before the committee. On February 25 Douglas appeared before the committee, took an oath, and testified regarding his past association with Marvin E. Copple, a real estate developer.

On June 14, 1984, the grand jury returned a true bill on the indictment that charged Douglas with two counts of criminal conduct resulting from the Commonwealth investigation. Count I charged Douglas with perjury in violation of Neb.Rev.Stat. § 28-915(1) (Reissue 1985) by alleging that

[Douglas] did, after having given his oath or affirmation in a matter where said oath or affirmation was required by law, and before an authority having full power to administer the same, said being the Special Commonwealth Committee of the Legislature of Nebraska, depose, affirm or declare the following matters to be fact, to-wit:

That he paid income tax on all of the payments he received from Marvin E. Copple for services he performed for Marvin E. Copple.

That the payments he received from Marvin E. Copple, for the services he performed for said Marvin E. Copple, totalled Thirty-two Thousand Five Hundred Dollars ($32,500).

That his actions as Attorney General of Nebraska had not been influenced by his business or personal relationships with Marvin E. Copple.

Further, that at the time he, Paul L. Douglas, deposed, affirmed or declared said matters to be fact he knew the same to be false.

Count II charged Douglas with obstruction of justice under Neb.Rev.Stat. § 28-901(1) (Reissue 1985).

Pursuant to Neb.Rev.Stat. § 29-1808 (Reissue 1985), Douglas moved to quash the indictment, contending in part that the testimony given under oath before the Special Commonwealth Committee was not subject to prosecution under § 28-915. The district court overruled the motion and also rejected similar contentions made in both a plea in abatement and demurrer subsequently filed by Douglas.

Douglas' trial commenced on December 3, 1984. The jury eventually found Douglas guilty of perjury and not guilty of obstruction of justice. On March 8, 1985, the district court sentenced Douglas to probation for a period of 3 years and ordered him to meet certain conditions of the probation.

At the outset we choose to offer some preliminary observations. In the first place we point out that in this case it is not within the province of our review to judge the propriety of Douglas' activities as Attorney General. We make no judgment as to whether, as a lawyer, he had a moral obligation to tell the truth apart from any statutorily prescribed standard relating to false swearing. We undertake no assessment of the responsibility for the demise of Commonwealth Savings Company. None of these issues properly belongs within the ambit of this appeal.

Rather, we are required to examine this record for error. In so doing we may not consider that at the time Douglas was the Attorney General of the state or that he was then authorized to practice law. He is entitled to due process of law as provided by our Constitution to the same extent as any other citizen of this state. Nothing more, nothing less.

Douglas asserts nine assignments of error, including the following: "The court erred in failing to quash or dismiss Count I of the indictment because it failed as a matter of law to allege facts which would constitute perjury since the statements were made in a setting where no oaths were required by law." Because we believe this contention is dispositive of the appeal, we need not and do not consider issues raised in the remaining assignments of error.

Section 28-915 provides in pertinent part as follows:

(1) A person commits perjury if, having given his oath or affirmation in any judicial proceeding or to any affidavit on undertakings, bonds, or recognizances or in any other matter where an oath or affirmation is required by law, he deposes, affirms or declares any matter to be fact, knowing the same to be false, or denies any matter to be fact, knowing the same to be true.

The parties agree that the language "in any other matter where an oath or affirmation is required by law" in § 28-915 provides the sole basis for convicting Douglas of perjury for testimony before the Special Commonwealth Committee. Douglas maintains that for an individual to be convicted of perjury under § 28-915, the individual must knowingly make a false statement under oath where a specific statute requires an oath to be administered. Although Neb.Rev.Stat. § 50-103 (Reissue 1984) provides that any member of the Legislature "may administer oaths in the Legislature, and while acting on a committee may administer oaths on the business of such committee" (emphasis supplied), no Nebraska statute requires that an oath be administered to individuals testifying before a legislative committee. Douglas argues that, although the allegedly false statements were made under oath, such an oath was not "required by law" and Douglas cannot be convicted of perjury. The State argues that the phrase "required by law" means only that the oath must be administered by an individual or entity possessing the authority to require the oath. It is the State's position that, since § 50-103 authorizes a legislative committee to administer and, hence, require an oath, Douglas' statements made under oath before an official body possessing the authority to administer an oath fall within the scope of § 28-915. According to the State,

the majority rule is that if a governmental body, authority or agency is vested with the statutory authority to require that testimony be adduced in its proceedings under oath, even though the exercise of that authority is not mandatory, such testimony adduced under oath may properly be the subject of a perjury prosecution.

Brief for Appellee at 13.

Neb.Rev.Stat. § 29-106 (Reissue 1985) provides:

This code and every other law upon the subject of crime which may be enacted shall be construed according to the plain import of the language in which it is written, without regard to the distinction usually made between the construction of penal laws and laws upon other subjects, and no person shall be punished for an offense which is not made penal by the plain import of the words, upon pretense that he has offended against its spirit.

In Kinnan v. State, 86 Neb. 234, 236-37, 125 N.W. 594, 595 (1910), this court enunciated: "[I]t is now settled beyond question, that there are no common law crimes in this state...."

In construing § 28-915 we are guided by the general rule found in State v. Ewert, 194 Neb. 203, 204, 230 N.W.2d 609, 610 (1975): "No act is criminal unless the Legislature has in express terms declared it to be so, and no person can be punished for any act or omission which is not made penal by the plain import of written law." Also, as this court held in State v. Beyer, 218 Neb. 33, 37, 352 N.W.2d 168, 171 (1984): " 'It is a fundamental principle of statutory construction that a penal statute is to be strictly construed.' " In United States v. Speidel, 562 F.2d 1129, 1131-32 n. 4 (8th Cir.1977), the Court of Appeals for the Eighth Circuit stated: "Strict construction of criminal statutes is based on need to provide fair warning of what conduct is criminal and to insure that the legislature rather than the courts define criminal behavior." As expressed by this court in State v. Hamilton, 215 Neb. 694, 699, 340 N.W.2d 397, 400 (1983): "It is not for courts to supply missing words and even sentences in order to make definite that which is indefinite."

In Saunders v. State, 170 Tex.Crim. 358, 341 S.W.2d 173 (1960), the Texas Court of Criminal Appeals addressed the question of whether false testimony given before an investigatory committee of the Texas Legislature constituted perjury under a statute which defined perjury as a false statement made under oath or affirmation in "circumstances in which [such] oath or affirmation is required by law...." 341 S.W.2d at 176 (Davidson, J.,...