State v. Gobin

• Citation: 134 Kan. 532,7 P.2d 57
• Decision Date: 30 January 1932
• Docket Number: 30239.
• Parties: STATE v. GOBIN.
• Court: United States State Supreme Court of Kansas

7 P.2d 57

134 Kan. 532

STATE v. GOBIN.

No. 30239.

Supreme Court of Kansas

January 30, 1932

Syllabus by the Court.

Statutory crime of perjury includes false statements before public body or officer and eliminates common-law requirement that false statement must have been made in judicial proceedings (Rev St. 1923, 21--701, 54--105).

Affidavit made before notary public and filed with county attorney as basis for criminal proceedings may be made basis of perjury prosecution where contents are intentionally false (Rev. St 1923, 21--701, 54--105).

Information based on false affidavit, made before notary public concerning sale of liquor and filed with county attorney held sufficient to charge perjury (Rev. St. 1923, 21--701 54--105).

Fact of perjury must be established by two witnesses or one witness and corroborating circumstances (Rev. St. 1923, 21--701, 54--105).

Uncorroborated testimony of single witness as to falsity of sworn statement is insufficient to support conviction for perjury (Rev. St. 1923, 21--701, 54--105).

1. The crime of "perjury" in this state is defined by R. S. 21--701 and R. S. 54--105, and it includes what was at common law separately defined as perjury and false swearing without any discrimination as to the punishment. It is by these statutes extended so as to include acts before a public body or officer and eliminates the requirement of the common law that the statement be made in a judicial proceeding.

2. An affidavit, made before a notary public concerning the unlawful sale of intoxicating liquor and sworn to by the defendant for the purpose of being delivered to the county attorney to cause him to bring criminal proceedings against the party mentioned therein as selling the liquor, and the county attorney uses the affidavit for that purpose, is such a statement under oath as is included in the statutes of this state as a basis or ground for perjury, if the contents thereof are shown to have been intentionally false.

3. The information in this case considered, and held to be sufficient to charge the offense of perjury.

4. Two witnesses or one witness and corroborating circumstances are necessary to establish the fact of perjury, and therefore the uncorroborated testimony of one witness as to the falsity of a sworn statement is not enough to support a conviction for perjury.

Appeal from District Court, Cheyenne County; E. E. Kite, Judge.

O. O. Gobin was convicted of perjury, and he appeals.

Judgment reversed, and cause remanded, with instructions.

A. E. Crane, of Topeka, and D. H. Postlethwaite, of St. Francis, for appellant.

Roland Boynton, Atty. Gen., R. O. Mason, Asst. Atty. Gen., and Fred Rueb, Co. Atty., and Roy T. Johnson, both of St. Francis, for the State.

HUTCHISON J.

The defendant in this action appeals from a judgment and sentence for perjury assigning many errors, the first of which is the insufficiency of the information to charge the offense of perjury. This question was regularly and timely raised by a motion to quash the information.

The information set out an affidavit in full as well as the jurat before a notary public, and alleged that it was executed and sworn to by defendant for the purpose of being delivered to the county attorney to cause him to bring criminal proceedings against H. Leonard in the district court of Cheyenne county and that such action had been brought by the county attorney, giving the title and number of the case, and that the affidavit was false and known by the defendant to be false. The statements in the affidavit were in substance that defendant had on the -- day of October, 1929, at a certain place, purchased from H. Leonard one pint of intoxicating liquor and paid him $2.50 therefor.

The argument made and the authorities cited by appellant would be convincing if perjury in Kansas were the same as common-law perjury, as it appears to be in many states where the legislative enactments as to perjury are codifications of the common law, but the statutes of this state on this subject include acts not within the common-law definition and they enlarge the scope of the common-law crime of perjury by eliminating the requirement that the statement be made in a judicial proceeding.

"Many statutes define the term by enumerating the acts which shall constitute commission of the crime, including acts not within the common-law definition. Under varying statutory provisions it has been held that the intent of the legislature was to enlarge the scope of the common-law crime of perjury by eliminating the requirement of materiality of the statement, or the requirement that it be made in a judicial proceeding." 48 C. J. 821.

The cases of State v. Ayer, 40 Kan. 43, 19 P. 403, and State v. Smith, 40 Kan. 631, 20 P. 529, are cited to show that Kansas has followed the common-law requirements, but in the first case the information entirely omitted to state the officer before whom the affidavit was given to be used, as the county attorney is mentioned in this case, although the court no less than three times mentions the fact that it can be so used before an officer under our statute, which is clearly a departure from the common-law rule. In the Smith Case, above cited, an affidavit was made under the search and seizure section of our prohibitory liquor law, R. S. 21--2123, and because the perjury information misdescribed the location where the intoxicating liquor was claimed to have been sold, in setting out the alleged false testimony given by defendant, it being concerning an entirely different location from that charged in the indictment for the violation of the liquor law and the defendant's affidavit, both of which were set out in the perjury information. The false oath in the testimony given was as a matter of law held not to be material to the issues, although it was recognized as a proper case for perjury if the false testimony had been material.

The case of State v. Geer, 46 Kan. 529, 26 P. 1027, is a very similar one to the Ayer Case, supra, although it was for subornation of perjury, but the information was held to be defective because an affidavit as to rape and incest was not alleged to have been made to be used in a court or before a public body or officer. In this case which returned to this court after another trial, it was said: "There is evidence tending to show that the affidavit was intended to be used in a criminal prosecution against John Mickens. This was sufficient." State v. Geer, 48 Kan. 752, 756, 30 P. 236, 237.

R. S. 21--701, in defining "perjury," includes acts before a public body or officer which are not within the common-law definition and thereby eliminates the requirement that the statement be made in a judicial proceeding. It is as follows: "Every person who shall willfully and corruptly swear, testify or affirm falsely to any material matter, upon any oath or affirmation or declaration legally administered in any cause, matter or proceeding before any court, tribunal or public body or officer, shall be deemed guilty of perjury."

But this is not the only act on the subject. R. S. 54--105 was enacted at the same session of the Legislature as the above-quoted section, in 1868, and provides: "All oaths and affirmations alike subject the party who shall falsify them to the pains and penalties of perjury."

These two statutes apparently include both perjury and false swearing as they were formerly and under the common law separately defined, as follows:

"By the common law perjury is the willful and corrupt taking of a false oath, lawfully administered in a judicial proceeding or the course of justice in regard to a matter material to the issue or point of inquiry." 48 C. J. 820.

"'False swearing' has been defined as swearing to what deponent knows to be untrue, corruptly and intentionally, in a manner that is morally and willfully false as distinguished from being merely mistaken." 48 C. J. 821.

Our statute calls both of these earlier offenses perjury and makes no discrimination as to the punishment.

Appellant contends that if R. S. 54--105 intended to define the crime of perjury, it is not included in the title of the act, and is therefore not within the requirement of section 16 article 2, of the Constitution, but this section was re-enacted in the revision of the statutes in 1923 which would cure any defect of this kind there might have been in the original enactment, as was held first in State ex rel. v. Davis, Governor, 116 Kan. 663, 229 P. 757, and later in City of Wichita v. Wichita Gas Co., 126 Kan. 764, 271 P. 270, and several other decisions to the effect that all statutes included in the 1923 revision became immune to any attack based upon mere...