State v. Perry

• Citation: 91 N.W. 765,117 Iowa 463
• Parties: STATE OF IOWA v. ALFRED S. PERRY, Appellant
• Decision Date: 07 October 1902
• Court: United States State Supreme Court of Iowa

91 N.W. 765

117 Iowa 463

STATE OF IOWA v. ALFRED S. PERRY, Appellant

Supreme Court of Iowa, Des Moines

October 7, 1902

Appeal from Woodbury District Court.--HON. F. R. GAYNOR, Judge.

THE defendant was accused in the indictment of perjury, it being alleged therein that on or about the 14th day of June, in the year of our Lord 1901, in the county of Woodbury and state of Iowa in a criminal proceeding entitled "The State of Iowa vs. Fred Perry," the said Fred Perry was charged and accused, on preliminary information, of the crime of indecent exposure of his person; that the said criminal proceeding was then and there pending in the police court of the city of Sioux City, Iowa and before R. H. Munger, the duly elected, qualified, and acting judge of said police court, and said criminal proceeding was one which the said R H. Munger, as judge of the police court aforesaid, had full and complete authority and jurisdiction to hear, try, and determine; that said judge had authority to and did administer oath in said proceeding; that the accused willfully, falsely, and corruptly testified: "I was not at or near 512 West Eighth street, Sioux City, Iowa on June 12, 1901. I was at John Ritter's saloon, on Jones street all the afternoon of June 12, 1901, and until late in the evening. I was not on the West Side on June 12 1901,"--whereas he was at said place, and not at the saloon, as stated; which said matter, so sworn to by the said Fred Perry before the said R. H. Munger, judge, aforesaid was material matter in the hearing, trial, and investigation then going on before the said R. H. Munger, aforesaid, in reference to the charge of indecent exposure against the said Fred Perry, then and there being heard, investigated, and tried as aforesaid. The defendant was convicted, and appeals.

AFFIRMED.

T. P. Murphy for appellant.

Chas. W. Mullan, Attorney General, and Chas. A. Van Vleck, Assistant Attorney General, for the State.

OPINION

LADD, C. J.

Was an averment of the precise date of the offense essential to the sufficiency of the indictment? Not unless time was a material ingredient of the crime. Section 5285, Code. That it was not, appears from the numerous decisions to the effect that strict proof that the perjury charged was committed on the day alleged is not essential, save when necessary to identify a record, deposition, or affidavit in which the oath was taken When a copy of the record or the other paper containing the oath alleged to be false is set out in haec verba in the indictment, and the alleged originals are produced, bearing a different date, the variance is held fatal on the ground that the record or paper offered is not identified as the one intended. If, however, the charge is not based on a record or other writing under oath, and the statement asserted to be false might have been made on either the date alleged or that proven, and would have constituted perjury if taken at either time, then the variance is regarded by the weight of authority as wholly immaterial. Matthews v. U.S., 161 U.S. 500 (16 S.Ct. 640, 40 L.Ed. 786; Keator v. People, 32 Mich. 484; State v. Fenlason, 79 Me. 117 (8 A. 459); Com. v. Soper, 133 Mass. 393; Dill v. People, 19 Colo. 469, (36 P. 229, 41 Am. St. Rep. 254.) See State v. Lewis, 93 N.C. 581. Here the defendant was accused of giving false testimony on a preliminary examination, and, had a particular date been alleged, another could have been proven. Time, then, was not a material part of the offense, and it was not necessary to precisely state it in the indictment. As directly in point, see Lucas v. State, 27 Tex. Ct. App. 322, (11 S.W. 443); Com. v. Davis, 94 Ky. 612 (23 S.W. 218). In State v. Phippen, 62 Iowa 54, 17 N.W. 146, the assessor did not have authority to administer an oath at the time alleged, and for this reason the indictment failed to charge the commission of a crime.

II. Another criticism is that the indictment neither states the time when nor the place where the indecent exposure occurred. Neither the facts constituting such offense nor defendant's guilt thereof should have been averred. He may have been entirely innocent of the crime charged, and yet have committed perjury on the hearing. It was "sufficient to set forth the substance of the controversy or matter in respect to which the offense was committed." Section 5296, Code. State v. Schill, 27 Iowa 263.

III. The record of the police court in which the proceedings were had entitled "The State of Iowa vs. Fred Perry," and also the information on which the prosecution was based were received in evidence over defendant's objections. The latter, except the verification, may be set out: "Information. The State of Iowa for the use and Benefit of the City of Sioux City. The City of Sioux City vs. Fred Perry. In the Police Court of the City of Sioux City, before Robert H. Munger, Judge. The above-named defendant is accused of the crime of indecent exposure, for that on the 12th day of June, A. D. 1901, at Sioux City, in the county of Woodbury, state of Iowa said defendant did unlawfully and willfully expose his person in a lewd and indecent manner in a public place in said city, in the presence of four little girls; Contrary to the statutes in such case made and provided. [Signed] Mrs. J. P. Brown." Counsel insist that there is a fatal variance between the proof and the averment in the indictment. By reverting to the latter it will be noted the allegation is with respect to a criminal proceeding entitled "The State of Iowa vs. Fred Perry," wherein the said Fred Perry was "charged and accused on preliminary...