State v. Lupton

• Decision Date: 26 June 1926
• Docket Number: No. 8.,8.
• Citation: 133 A. 861
• Parties: STATE v. LUPTON.
• Court: New Jersey Supreme Court

133 A. 861

STATE

v. LUPTON.

No. 8.

Supreme Court of New Jersey.

June 26, 1926.

Error to Court of Quarter Sessions, Cumberland County.

Albert Lupton was convicted of perjury, and he brings error. Reversed.

Argued May term, 1926, before GUMMERE, C. J., and KALISCH and CAMPBELL, JJ.

H. Byron Lore, of Bridgeton, for plaintiff in error.

Thomas G. Tuso, of Vineland, for the State.

KALISCH, J. The plaintiff in error was convicted in the Cumberland county court of quarter sessions on an indictment charging him with perjury. On this conviction he was sentenced for a term of imprisonment, at hard labor, not less than one year, and not more than two years.

The perjury alleged was assigned upon certain testimony given by the defendant below, who was a witness subpoenaed by the state in a proceeding, before the Cumberland county grand jury, instituted against one Luther Garton, accused of selling liquor for beverage purposes, and before which inquisitorial body the defendant testified, in substance, to this effect:

"I never purchased any liquor from Luther Garton for beverage purposes; neither have I seen any other person purchase any liquor for beverage purposes from the said Luther Garton."

This testimony is alleged to have been false and corruptly given.

It was stipulated between counsel, in order to avoid calling grand jurors as witnesses, that the defendant did testify, as above stated, before the grand jury.

Samuel Swift, a witness sworn on behalf of the state, testified that between the 1st day of July and the 9th day of August the defendant came to the house to see Garton after 6 o'clock in the evening, and when asked, "What did Lupton get from anybody at the house, 33 Lemon street, Bridgeton, in the month of July or August, 1924, if you know?" the answer was: "He got liquor?supposed to be," and that his wife was present at the time. He further testified that the defendant came there twice, and at the first time he got one quart, for which he paid $2; that his wife was not present, and at the second time he got two quarts, when his wife was present, and for which liquor he paid $4; that on a later occasion he saw Garton sell to Lupton in the barn on the premises one pint of liquor, for which Lupton paid Garton $1; and that a man named Rodman was present. Rodman was not called as a witness.

Swift's wife was called to testify, on behalf of the state, manifestly for the purpose of corroborating her husband's statement that she was present in the kitchen on the second occasion, when, as he testified, his wife was present, and Garton, then and there, in her presence, "handed out" two quarts of liquor to Lupton, for which the latter paid Garton $4, but she flatly denied that she saw any such thing take place in the kitchen, and denied most emphatically that she saw liquor pass from Garton to Lupton there or at any other place or time or to anybody else.

Bearing in mind that the issue was whether the defendant Lupton testified falsely and corruptly when he said: "I never purchased any liquor from Luther Garton for beverage purposes, neither have I seen any other person purchase any liquor for beverage purposes from the said Luther Garton," it became and was essential, in order to establish the commission of the offense of perjury by the accused, in the statement of a material fact made by him to the grand jury, for the state to establish by the testimony of more than a single witness that his statement was untrue.

Roscoe, in his valuable work on Criminal Evidence, at page 765, says:

"It is a general rule that the testimony of a single witness is insufficient to convict on a charge of perjury. This is an arbitrary and peremptory rule, founded upon the general apprehension that it would be unsafe to convict in a case where there would be merely the oath of one man to be weighed against that of another. 2 Stark. Ev. 626 (2d Ed.); 2 Russ by Grea. 649; Hawk. P. C. b. 1, c. 69; 4 Bl. Com. 358. But this rule must not be understood as establishing that two witnesses are necessary to disprove the fact sworn to by the defendant; for, if any other material circumstances be proved by other witnesses, in confirmation of the witness who gives the direct testimony of perjury, it may turn the scale and warrant a conviction. Rex. v. Lee, 2 Russ by Grea. 650."

Greenleaf, in volume 1 (Lewis' Ed. 1896), under the caption "perjury," paragraph 257, says:

"In proof of the crime of perjury, also it was formerly held that two witnesses were necessary, because otherwise there would be, nothing more than the oath of one man against another, upon which the jury could not safely convict. But this strictness has long since been relaxed; the true principle of the rule being merely this, that the evidence must be something more than sufficient to counterbalance the oath of the prisoner and the legal presumption of his innocence. The oath of the opposing witness, therefore, will not prevail, unless it be corroborated."

In Com. v. Parker, 2 Cush. (Mass.) 213, the rule was laid down as follows:

"In order to authorize a conviction of perjury, it is necessary, in addition to the testimony of one witness to the falsity of the statement alleged as the perjury, that strong corroborating circumstances, of such character as clearly to turn the seale, and overcome the oath of the party charged, the legal presumption of his innocence, should be established by independent evidence."

In Dodge v. State, 24 N. J. Law, 455, Green, C. J., speaking for the Supreme Court, at page 461, said:

"Proof that the defendant has made statements verbally or in writing, under oath or not under oath, conflicting with the statement under oath upon which the indictment is founded, is competent evidence on an indictment for perjury, and such evidence, in connection with the testimony of one other witness, has been held suilicient to warrant a conviction. Rex. v. Mayhew, 6 Car. p. 315; Roscoe on Crim. Ev. 686; State v. Molier, 1 Dev. [12 N. C], 213 [263]. Wharton's Cr. Law (2d Ed.) 307."

At the close of the state's case, counsel of defendant moved for the direction of a verdict on the ground that the only evidence produced on the part of the state was the uncorroborated testimony of the witness Samuel Swift. This motion was refused, and an exception was taken,' and an assignment of error and a specification of cause for reversal were predicated on the exception taken, and though the motion was addressed to the discretion of the court, and is not reviewable on...