State v. Lowe, 6660

• Decision Date: 11 March 1939
• Docket Number: 6660
• Citation: 60 Idaho 98,88 P.2d 502
• Parties: STATE, Appellant, v. CHARLES R. LOWE, Respondent
• Court: Idaho Supreme Court

88 P.2d 502

60 Idaho 98

STATE, Appellant, v. CHARLES R. LOWE, Respondent

No. 6660

Supreme Court of Idaho

March 11, 1939

PERJURY-INDICTMENT SUFFICIENCY OF.

1. An indictment for perjury merely naming the case in which perjury was allegedly committed, its docket number, and the court, without stating the testimony that defendant allegedly gave before grand jury and subsequently denied before district court, did not comply with statute requiring "substance of the controversy or matter" to be set forth, and was demurrable. (I. C. A., sec. 19-1326.)

2. An indictment for perjury based on defendant's denial in district court of having made certain statements before grand jury must allege the question or issue that was being investigated by the grand jury and the testimony given before grand jury. (I. C. A., sec. 19-1326.)

3. The law does not undertake to punish every false statement made in litigation or otherwise, but only willful falsehoods about a material matter at issue or involved in some matter requiring the sanction of an oath. (I. C. A., sec. 19-1326.)

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles E. Winstead, Judge.

Indictment for perjury. Demurrer to indictment sustained and judgment entered for respondent. Affirmed.

Affirmed.

Willis C. Moffatt, Prosecuting Attorney, J. W. Taylor, Attorney General, and R. W. Beckwith, Assistant Attorney General, for Appellant.

The substance of the controversy or matter need not be set forth in any particular manner or at any particular length, and any allegation which informs the defendant, which protects him from a subsequent criminal trial on the same issue of facts is sufficient; and averment that the testimony is material to the issue on trial is sufficient. (Secs. 19-1307, 19-1318, 19-1319, 19-1326, 19-3602, I. C. A.; State v Bowman, 40 Idaho 470, 235 P. 577; State v. Goldizen, 58 Idaho 532, 76 P.2d 278; People v. Ah Bean, 77 Cal. 12, 18 P. 815; State v. Smith, 153 Minn. 167, 190 N.W. 48; State v. Reidt, 54 S.D. 178, 222 N.W. 677; State v. Bingham, 124 Kan. 61, 257 P. 951; People v. Rodley, 131 Cal. 240, 63 P. 351.)

Frawley & Barnes, for Respondent.

The indictment is fatally defective in that it does not set forth the substance of the controversy or matter in respect to which the offense was committed. (Sec. 19-1326, I. C. A.; State v. See, 4 Wash. 344, 30 P. 327; Treece v. People, 96 Colo. 32, 40 P.2d 233; State v. Roberts, 22 Wash. 1, 60 P. 65; State v. Carey, 4 Wash. 424, 30 P. 729; Thompson v. State, 89 Wis. 253, 61 N.W. 565; State of Oregon v. Witham, 6 Ore. 366; State v. Villa, 92 Vt. 121, 102 A. 935.)

The indictment is likewise fatally defective in that it does not contain proper allegations of the falsity of the matter on which the perjury is assigned. (Sec. 19-1326, I. C. A.; Moore v. State, 91 Miss. 250, 44 So. 817, 124 Am. St. 652; Hilliard v. United States, 24 F.2d 99; Territory v. Lockhart, 8 N. M. 523, 45 P. 1106; Commonwealth v. Still, 83 Ky. 275.)

BUDGE, J. Morgan, Holden, JJ., and AILSHIE, C. J., Concurring, GIVENS, J., Concurring Specially.

OPINION

BUDGE, J.

Respondent, Charles R. Lowe, was indicted by the grand jury of Ada county, upon a charge of perjury, to which indictment respondent interposed his demurrer "for the reason and upon the ground the facts stated in said indictment do not constitute a public offense." The demurrer was sustained and respondent ordered discharged and his cash bail refunded. From the judgment the state has appealed and assigned as error the action of the court in sustaining respondent's demurrer to the indictment.

The charging part of the indictment is as follows:

"That Charles R. Lowe, on or about the 17th day of May, 1938, at Boise, in the County of Ada, and State of Idaho, then and there being did then and there, commit the crime of perjury, to-wit: That the said defendant, Charles R. Lowe, then and there being, did, having taken an oath before the District Court of the Third Judicial District in and for the County of Ada, State of Idaho, and the Hon. Charles F. Koelsch, District Judge presiding, that he would testify truly before said Court in a matter then and there concerning a case before said Court, to-wit: The case of State of Idaho, Plaintiff, vs. W. H. Abendroth, Defendant, Docket No. 722 of the Docket of said Court, said oath having been regularly administered by Chloe B. Burnett, the duly authorized Deputy Clerk of said District Court, who then and there had authority to administer such an oath, did in a matter material to said case and matter before said Court, he, the said Charles R. Lowe, having taken such oath as aforesaid, wilfully, corruptly, falsely, and feloniously, state, declare and testify the truth to be, that he, the said Charles R. Lowe, while testifying before the Grand Jury of Ada County, state of Idaho, had not testified before the said Grand Jury that he had bought the hay from Hodson, and that it, or some of it, had been delivered, and part had been used before W. H. Abendroth called at the hospital, and the said defendant further testified as aforesaid, the truth to be, that he had not stated to the said Grand Jury that he did not discuss hay at all with W. H. Abendroth at a meeting between he and Mr. Abendroth at the said Charles R. Lowe's office at Blackfoot, Idaho; all of which statement and testimony was false and not true, and that such false statement was made and declared by said Charles R. Lowe for the purpose of influencing the Court and a jury duly empaneled to try the aforementioned matter and case then and there before the court, and that the said false statement and oath was then and there material to the issues tendered in said cause."

The main question presented by this appeal is whether or not the indictment sets forth the substance of the controversy or matter in respect to which the offense was committed, as prescribed by section 19-1326, I. C. A., providing:

"In an indictment for perjury, or subornation of perjury, it is sufficient to set forth the substance of the controversy or matter in respect to which the offense was committed, and in what court and before whom the oath alleged to be false was taken, and that the court, or the person before whom it was taken, had authority to administer it, with proper allegations of the falsity of the matter on which the perjury is assigned; but the indictment need not set forth the pleadings; record, or proceeding with which the oath is connected, nor the commission or authority of the court or person before whom the perjury was committed."

In the indictment under consideration "the controversy or matter in respect to which the offense was committed," was the case of State v. Abendroth, referred to in the indictment only by designating the court, the judge, the names of the parties and the docket number, as follows:

"in a matter then and there concerning a case before said Court (District Court of the Third Judicial District in and for the County of Ada, State of Idaho, and the Hon. Charles F. Koelsch, District Judge presiding), to wit: The case of State of Idaho, Plaintiff, vs. W. H. Abendroth, Defendant, Docket No. 722, of the Docket of said court. . . . " (Emphasis inserted.)

The question is whether the indictment, so worded, sets forth the substance of State v. Abendroth. An examination of the authorities considering statutes for all practical purposes the same as section 19-1326, I. C. A., discloses two divergent and irreconcilable lines of authority. One line, that followed in California, follows People v. Ah Bean, 77 Cal. 12, 18 P. 815, wherein it is held that in an information for perjury, charging that defendant was duly sworn in a certain case "then and there at issue to-wit the case of The People v. Martine," and setting out defendant's testimony therein, with an averment of its materiality, sufficiently "sets forth the substance of the controversy in respect to which the offense was committed" as required by Penal Code of California, section 966. To similar effect are, People v. Collins, 6 Cal.App. 492, 92 P. 513; People v. Dunstan, 59 Cal.App. 574, 211 P. 813; Williams v. State, 14 Okla. Crim. 100, 167 P. 763; State v. Reidt, 54 S.D. 178, 222 N.W. 677; Atkinson v. State, 133 Ark. 341, 202 S.W. 709.

The other line of authority is to the effect that the statutory requirement that the substance of the controversy or matter in respect to which the offense was committed is not met by an averment merely giving the name of the case, the court, the docket number and such matters, but that substantially what was the matter in controversy must be shown, that is, the substance of the case or the issue involved must be set forth, which principle is supported by the following authorities:

In State v. See, 4 Wash. 344, 30 P. 327, it is said:

"This indictment, it will be observed, does not describe the proceeding at which the alleged perjury was committed. The first part of the indictment, eliminating the parenthetical portion, is as follows: 'Said John See, (upon a proceeding wherein the state of Washington was plaintiff and John See was defendant) why said John See should not be punished for contempt of said court in disobeying a subpoena served upon him,' etc. It will readily be seen that no proposition at all is stated here, and that the defendant, before he can determine what is meant, must not only supply an ellipsis, but must supply the substantive part of the sentence, which we think, even under the liberal provisions of the Code, he should not be compelled to do, especially where there was a timely interposition of a demurrer."

In State v. Argo, 118 Tenn. 377, 100 S.W. 106, the court said:

"Shannon's Code, sec. 7093, provides: 'It shall be...