State v. Falk
| Decision Date | 21 July 1916 |
| Docket Number | 1915 |
| Citation | 159 N.W. 10,34 N.D. 520 |
| Court | North Dakota Supreme Court |
Appeal from a judgment of conviction of perjury entered in the District Court of Morton County, Hanley, Judge.
Reversed and a new trial granted.
Conviction set aside and case remanded.
A. T Faber, for appellant.
The essentials of the crime charged are: the taking of the oath in a proceeding before a competent tribunal, in cases in which an oath may be administered; giving testimony, and wilfully and contrary to said oath, stating any material matter which he knows to be false. Comp. Laws 1913, § 9366; Hitesman v. State, 48 Ind. 473; People v. Simpton, 133 Cal. 367, 65 P. 834; State v. Divoll, 44 N.H. 140; United States v. McConaughy, 33 F. 168; Brown v. State, 91 Wis. 245, 64 N.W. 749; 16 Enc. Pl. & Pr. 329; State v. Scott, 78 Minn. 311, 81 N.W. 3.
The information must contain a positive declaration or averment that defendant was duly sworn to testify truthfully. People v. Simpton, 133 Cal. 367, 65 P. 834; People v. Dunlap, 113 Cal. 74, 45 P. 183.
All of the elements specified in the statute must be alleged. State v. Webb, 41 Tex. 67; Juaraqui v. State, 28 Tex. 625.
The information must allege in general terms that certain issues were joined and on trial in the proceeding in which the alleged perjury was committed. It is not sufficient to allege that the issue to be tried was material. Guston v. People, 61 Barb. 35; People v. Howard, 111 Cal. 655, 44 P. 342; Rosebud v. State, 50 Tex. Crim. Rep. 475, 98 S.W. 858; McMurtry v. State, 38 Tex. Crim. Rep. 521, 43 S.W. 1010; Buller v. State, 33 Tex. Crim. Rep. 551, 28 S.W. 465.
The name of the court must also be alleged. 3 Whart. Crim. Law, 2221; State v. Ayer, 40 Kan. 43, 19 P. 403; State v. Oppenheimer, 41 Tex. 82.
The period of time in which the alleged false testimony was material to the issue on the trial upon which the alleged perjury was committed. This is essential so as to apprise defendant of the charge against him. People v. Vogt, 156 Mich. 594, 121 N.W. 293; People v. Maxwell, 118 Cal. 50, 50 P. 18; State v. Webb, 41 Tex. 67; Gibson v. State, 44 Ala. 17; State v. Lea, 3 Ala. 602; State v. Raymond, 20 Iowa 582; Fitch v. Com. 92 Va. 824, 24 S.E. 272; Burns v. People, 59 Barb. 531.
The state must establish what the material issues were in the case in which the false testimony is alleged to have been given, in order to show the fact that the false testimony was material to such issue. 2 Bishop, Crim. Proc. 3d ed. § 933; People v. Ah Sing, 95 Cal. 657, 30 P. 797; Bledsoe v. State, 64 Ark. 474, 42 S.W. 899; 3 Greenl. Ev. § 197; State v. Aikens, 32 Iowa 403; Wood v. People, 59 N.Y. 117; McMurry v. State, 6 Ala. 324; Heflin v. State, 88 Ga. 151, 30 Am. St. Rep. 147, 14 S.E. 112; People v. Lem You, 97 Cal. 224, 32 P. 11; People v. Macard, 109 Mich. 623, 67 N.W. 968.
An instruction is erroneous where it assumes material facts to be proved of which there is no evidence or upon which the evidence is contradicted or controverted. 12 Cyc. 601 (XIV); People v. Matthai, 135 Cal. 442, 67 P. 694; Densmore v. State, 67 Ind. 306, 33 Am. Rep. 96; State v. Bige, 112 Iowa 433, 84 N.W. 518; Com. v. Smith, 153 Mass. 97, 26 N.E. 436; State v. Peltier, 21 N.D. 188, 129 N.W. 451; Territory v. O'Hare, 1 N.D. 30, 44 N.W. 1003; State v. Barry, 11 N.D. 428, 92 N.W. 809.
Wm. Langer, State's Attorney, Henry J. Linde, Attorney General, Francis J. Murphy and H. R. Bitzing, Assistant Attorneys General, for respondent.
No information or indictment is insufficient, nor can the trial judgment or other proceedings thereon be affected by reason of a defect or impression in matters of form which does not tend to affect the proceedings or the substantial rights of the defendant upon the merits. Comp. Laws 1913, § 10694; State v. Tolley, 23 N.D. 284, 136 N.W. 784.
It is not necessary in an information to state presumptions of law, nor matters of which judicial notice is taken. Comp. Laws 1913, § 10695.
Defendant was informed against and convicted of perjury committed during the trial of a civil action. He appeals, assigning many errors, only one of which is necessary to be considered. To charge perjury, it was necessary to allege the materiality of the false testimony given. To establish materiality, proof of the issues under which the testimony was offered was essential. But there is no proof of what the issues were in the trial during which the alleged false testimony was given, from which to determine materiality of the evidence given. This failure of proof was raised by motion to advise a verdict of acquittal, and again on exceptions to instructions. The trial court instructed: "And in determining whether or not the testimony was material, as stated before, the question you should bear in mind is what the issues were in the former trial, what the complaint was in the former trial and what the issue was that was being tried." And "the question that you are trying is, . . . whether or not, as such witness, Falk testified falsely to any material fact in that case, and if you find beyond a reasonable doubt from the evidence that he did so testify falsely to a material fact, and that he knew he was testifying falsely at that time to such material fact, and knew it was material, then, under the information and under these instructions, you should find the defendant guilty." The court also instructed upon materiality, when testimony would be material and when it would not be. The exception taken to these instructions is that "the court erred in assuming without any evidence that the state had established what the material issues in the former trial were upon which the alleged perjury was assigned."
The alleged perjury was committed in a civil action, and one in which the information charges that it was a material issue to establish that a common nuisance was kept and maintained at a certain place by the keeping of intoxicating liquors for sale there as a beverage, or by permitting people to there resort for the purpose of drinking intoxicating liquors; and the testimony of Falk wherein he denied seeing beer or seeing others drink beer there, the alleged false testimony, is set forth. The materiality of these statements is apparent from the face of the information, and therefore materiality is probably sufficiently alleged (Comp. Laws 1913, § 10700; Fitch v. Com. 92 Va. 824, 24 S.E. 272; 30 Cyc. 1435; Whart. Crim. Law, 11th ed. § 1549), although it is in bad form and open to question. See People v. Vogt, 156 Mich. 594, 121 N.W. 293; State v. Mumford, 12 N.C. 519, 17 Am. Dec. 573; and United States v. Robinson, 4 Dakota 72, 23 N.W. 90. But in proving its case the state wholly overlooked offering proof of what the issue was in said nuisance action. It offered in evidence only the summons, complaint, and injunctional order therein issued, without putting in evidence the answer or establishing whether any allegation of said complaint was controverted or was in issue on trial in said action. The proof as to issues on trial in the civil action is as indefinite as though the complaint therein was not in evidence. For all that appears upon this record every syllable of testimony given by Falk may have been upon matters concerning which there was no issue and no necessity of proof whatever. And it seems that this was not entirely an oversight, as the clerk of the court was called by the state and asked to produce certain records in said civil action, and gave this testimony:
Q. Where are the records now?
A. The records were sent down to justice court in another case and I have not gotten them back from him.
Subsequently he found a portion of them, the summons and complaint, and upon his testimony as a basis, they were offered and received in evidence. But the way in which the issue arose upon which the alleged false testimony was given is wholly unproven. In fact, there was no proof whatever of that issue on trial or that there was any issue for trial or tried. So far as the record is concerned it simply proves that certain false testimony was given, without any proof of how it was material or to what extent it was material or necessary, or proof of its materiality upon any question determined in the civil action. Its materiality then is wholly left to speculation and, as stated in the exception to the court's instruction, the court "assumed without any evidence that the state had established what the material issues in the former trial were upon the alleged perjury so assigned." It is almost elementary that any allegation that is necessary to be made in a criminal information is also necessary to be proven to support a conviction thereon. The text books and cases are in accord upon the necessity of proof of the materiality of the alleged false testimony; and to prove materiality it is necessary therefore to prove as a fact on the trial for perjury so much of the issue as is necessary to establish such materiality. "On a prosecution for perjury the materiality of the testimony may be shown by introducing all or so much of the pleadings in the action as show the issues, together with proof of such facts as tend to show the testimony to be on a material issue." 30 Cyc. 1446-F. See also Comp. Laws 1913, § 10700. And again, ...
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