State v. Elder, 44608
| Decision Date | 13 November 1967 |
| Docket Number | No. 44608,44608 |
| Citation | 433 P.2d 462,199 Kan. 607 |
| Parties | STATE of Kansas, Appellee, v. Lyle ELDER, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In order to constitute perjury under K.S.A. 21-701, it is essential that the false testimony be on a material matter.
2. False testimony is sufficiently material to support a charge of perjury if it relates to any collateral matter upon which evidence would have been admissible, and this includes testimony which is calculated and intended to prop or bolster that of a witness on some material point, or to support or attack the credibility of such witness.
3. In a criminal prosecution where the defendant was charged with giving false testimony concerning his educational qualifications, the record is examined, and it is held, the trial court correctly (1) determined as a matter of law the allegedly false testimony was on a material matter and (2) defined the word 'corruptly' in its instructions to the jury.
John W. Jordan, Wichita, argued the cause, and Dale B. Stinson, Jr., and Gerald D. Lasswell, Wichita, were with him on the brief for appellant.
Darrell G. Mitchel, County Atty., argued the cause, Robert C. Londerholm, Atty. Gen., and Raymond A. Overpeck, Deputy County Atty., were with him on the brief for appellee.
This is an appeal from a conviction on two counts of perjury (K.S.A. 21-701). The charges arose from statements made by the defendant, Lyle Elder, while testifying as a witness for the defense during the course of a criminal prosecution reported in State v. Darling, 197 Kan. 471, 419 P.2d 836.
Elder, a laboratory technologist, was director of Elder Clinical Laboratory in Wichita. At Dr. Darling's trial on charges of procuring an abortion or miscarriage Elder gave testimony concerning a pregnancy test performed by him at his laboratory at Dr. Darling's request. In testifying about his educational background and experience which qualified him to perform such test, Elder stated he had received a B.S. degree in chemistry and bacteriology from Wichita University and that he had attended medical school at the University of Kansas for two years. It is these statements with reference to his attendance at the two universities that form the basis for the charges in the present case.
At the trial evidence was presented by the registrars of both universities that no record could be found to indicate Elder's enrollment or attendance at either institution. The trial court instructed the jury as a matter of law that the allegedly false statements made by Elder concerning his educational background were material to the issues in the trial of Dr. Darling.
The materiality of the statements is challenged and is the principal point of this appeal.
In order to constitute perjury under the statute it is essential that the false testimony be on a material matter. (K.S.A. 21-701; State v. Smith, 40 Kan. 631, 20 P. 529.) The false statements relied upon, however, need not bear directly on the ultimate issue to be determined; it is sufficient that they relate to collateral matters upon which evidence would have been admissible. (State v. Fail, 121 Kan. 855, 250 P. 311; State v. Adams, 119 Kan. 509, 240 P. 955.)
In State v. Whitlock, 138 Kan. 602, 27 P.2d 262, it was stated:
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Kulbicki v. State
...failure to investigate Kopera's credentials does not amount to ineffective assistance. 21. Kulbicki also cites State v. Elder, 199 Kan. 607, 433 P.2d 462 (1967), but that opinion is inapposite. In Elder, the Supreme Court of Kansas did not employ the test we use in this case to determine wh......
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State v. Rollins
...for it to constitute perjury under our criminal statute. See State v. Frames, 213 Kan. 113, 119, 515 P.2d 751 (1973); State v. Elder, 199 Kan. 607, 608, 433 P.2d 462 (1967); State v. Smith, 40 Kan. 631, 632, 20 P. 529 Also, the pattern instruction for perjury, PIK Crim.3d 60.05, also provid......
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State v. Rollins
...In order to constitute perjury under 21-3805, it is essential that the false testimony be on a material matter. State v. Elder, 199 Kan. 607, 608, 433 P.2d 462 (1967). The particular answers for which defendant was convicted of perjury "Q. Do you know [A.F.]? "A. Yes. "Q. On how many occasi......
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State v. Edgington
...to be determined; it is sufficient that they relate to collateral matters upon which evidence would have been admissible. (State v. Elder, 199 Kan. 607, 433 P.2d 462.) Here a review of the statements which the state charged were perjured discloses that they were as a matter of law material.......