State v. Ledford

• Decision Date: 01 August 1938
• Docket Number: 27011.
• Citation: 195 Wash. 581,81 P.2d 830
• Parties: STATE v. LEDFORD.
• Court: Washington Supreme Court

81 P.2d 830

195 Wash. 581

STATE v. LEDFORD.

No. 27011.

Supreme Court of Washington, En Banc.

August 1, 1938

Appeal from Superior Court, King County; Donald A. McDonald, Judge.

Arthur Ledford was charged with the crime of perjury. From an order dismissing the proceeding, the State appeals.

Affirmed.

B. Gray Warner, Pros. Atty., and Henry Clay Agnew, both of Seattle for the State.

Colvin & Rhodes, of Seattle, for respondent.

BEALS, Justice.

Arthur Ledford was charged by information with the crime of perjury in the second degree, the gist of the charge being that the accused, in King county, in the course of the taking of his deposition in a certain cause then pending Before the superior court for that county, appeared Before a notary public, and, having been regularly sworn according to law, in response to certain questions propounded to him, swore falsely, in that the accused stated under oath that he had been at a certain street intersection in the city of Seattle on the 14th day of December, 1936, and there saw a collision between an automobile and a truck; that Arthur Ledford then testified as to certain matters in connection with the collision as having occurred within his sight; that he then swore to and affirmed the deposition as true, with intent that it be published and uttered as true, but that the deposition was not signed or completed by the accused. The information further charged that all of the statements made by the accused were false, in that he had not witnessed the collision, and was not in the city of Seattle at the time the same occurred.

The accused demurred to the information, and his demurrer was sustained. Later an amended information was filed, charging him with the crime of perjury in the first degree. By the amended information, the same facts were charged, save that the statement that the deposition was not signed or completed by the accused was omitted.

The accused demurred to the amended information, and also moved to dismiss, upon the ground that his demurrer to the original information had been sustained, and that the facts charged by the amended information were practically identical with those charged in the first instance.

It is conceded that upon the argument on the demurrer to the amended information and the motion to dismiss, it was admitted by the state that the testimony given by the accused Before the notary public upon the taking of his deposition had never been signed by the accused.

The trial court sustained the demurrer to the amended information, and dismissed the proceeding, and from the order of dismissal the state has appealed. The order recites that upon the argument, counsel for the state admitted in open court that the deposition was in fact never signed by the accused.

Error is assigned upon the ruling of the trial court sustaining the demurrer to the amended information and dismissing the proceeding.

The question presented is whether one who has regularly appeared Before a notary public as a witness to testify by deposition in a cause pending Before the superior court of this state and who was, by the notary public Before whom the deposition was to be taken, regularly sworn according to law to tell the truth, the whole truth, and nothing but the truth, can, under the statutes defining the crime of perjury, be charged with that offense, if the record shows that the deposition of the witness was never signed by him.

Upon the record Before us, it stands admitted by the accused that he voluntarily appeared Before a notary public to testify in an action pending Before the superior court for King county that he was by the notary regularly sworn to testify to the truth; that he did testify Before the notary in answer to questions propounded by counsel; and that certain statements which the accused made in the course of his testimony were false. It is admitted, then, that respondent was regularly sworn to tell the truth, by an officer qualified to administer the oath, and that respondent, while under oath made false statements, in direct violation of the oath which he had voluntarily taken to tell the truth.

The crime of perjury is defined in Laws of 1909, chapter 249, p. 920 et seq., § 99 et seq. (Rem.Rev.Stat. § 2351 et seq.). By § 99 of this act (Rem.Rev.Stat. § 2351), perjury in the first degree is defined as follows:

'Every person who, in any action, proceeding, hearing, inquiry or investigation, in which an oath may lawfully be administered, shall swear that he will testify, declare, depose or certify truly, or that any testimony, declaration, deposition, certificate, affidavit or other writing by him subscribed is true, and who, in such action, proceeding, hearing, inquiry or investigation shall state or subscribe as true any material matter which he knows to be false, shall be guilty of perjury in the first degree and shall be punished by imprisonment in the state penitentiary for not more than fifteen years.'

Section 104 of the act (Rem.Rev.Stat. § 2356) reads as follows:

'The making of a deposition, certificate or affidavit shall be deemed to be complete when it is subscribed and sworn to or affirmed by the defendant with intent that it be uttered or published as true.'

In the case at bar, it is admitted that the statements made by respondent, on which the charge of perjury is based, were made by him in the course of the taking of a deposition, and that the deposition was never subscribed by respondent.

The section of the statute last above quoted refers to several different matters. In testifying by way of deposition, the witness is sworn Before giving his testimony. In swearing to a certificate or affidavit, the document is prepared first, and is then subscribed and sworn to by the witness Before the officer who administers the oath. The statute takes into consideration all three situations, and the words 'with intent that it be uttered or published as true' apply to depositions, certificates or affidavits. As to depositions, it may well be argued that the statute affords no more than a reasonable protection to the witness, as Before rendering himself liable to the pains and penalties of the statutes against perjury, the witness should have an opportunity to read that which has been written down as his testimony. When he signs the written transcript of his testimony, he is properly held to adopt the same as statements made by him under oath.

A witness who testifies in open court makes his statements in the presence of the trier of the facts. His testimony may or may not be taken down in shorthand, and he testifies in full view of the statutes against perjury. Even in such cases, it seems to be the rule that perjury will not be predicated upon false statements corrected Before the submission of the case in which made. 48 C.J. 828, § 22. In 2 Wharton's Criminal Law, 12th ed., [81 P.2d 832] p. 1832, § 1572, the rule is laid down as follows:

'A witness examined viva voce may inadvertently, or through confusion, say many things to which he would not deliberately swear, had he an opportunity of final revision, and which, in subsequent portions of his testimony, he may qualify or recall. Hence, on the trial [for perjury], he should have the privilege of proving the whole of his testimony, so as to show, if possible, that the alleged falsehood was in other portions of his examination recalled or toned down.'

An interesting notation upon this subject may be found in 99 A.L.R. p. 890, and the cases cited support the doctrine as above stated.

In any event, the two sections of the statute above quoted must be read together, and it follows that the making of a deposition is not a completed act until the same is subscribed by the witness, with intent that it be uttered or published as true. It may be assumed that if no such section as Rem.Rev.Stat. § 2356, existed, the information in the case at bar would charge a crime under § 2351, but the two sections do exist, and must both be considered. When a statute defining a crime states that certain things must be done Before the crime be deemed complete, that crime is not committed Before the designated acts are accomplished.

In the case of State v. Dalzell, 135 Wash. 621, 238 P. 635, it appeared that the defendant was convicted of the crime of perjury, and thereafter moved for arrest of judgment; that his motion was sustained; and that from the order arresting judgment, the state appealed to this court. The information was based upon alleged false statements made by the defendant in an affidavit. The respondent Before this court (defendant below) contended that the information was bad for four reasons, one being that it failed to allege that the respondent swore to the affidavit with intent that it would be uttered or published as true. It appears from the opinion that the information charged that, at a certain time and place, the respondent, having first been duly sworn Before one authorized to administer oaths, did falsely declare and swear certain statements which he made to be true, well knowing that the same were false and untrue. In connection with the argument of the respondent Before this court upon the question above stated, this court said (page 636):

'It would seem from section 2356, Rem.Comp.Stat., supra, that one does not commit perjury by making a false statement in an affidavit, unless one makes it with the intent that it shall 'be uttered or published as true.' There is nothing in the information to comply with this statute. There is no express allegation that the respondent made the affidavit knowing or believing that it would be, or that it was intended that it should be, used for any purpose in the case of State v. Wilson, or in any other case. The nearest the...