State v. Phillips
| Citation | 241 P.2d 503,172 Kan. 505 |
| Decision Date | 08 March 1952 |
| Docket Number | No. 38501,38501 |
| Parties | STATE v. PHILLIPS. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court.
In a prosecution for perjury, two witnesses or one witness and corroborating circumstances are necessary to establish the fact of perjury, and therefore a mass of circumstances with no witness as to the falsity of a sworn statement is not enough to support a conviction.
Don Wyman, of Hutchinson (Duane Roberts, of Hutchinson, on the briefs), for appellant.
John R. Alden, of Hutchinson (Harold R. Fatzer, Atty. Gen. and Fred C. Preble, of Hutchinson, on the briefs), for appellee.
In this action defendant was convicted of perjury in three counts. He has appealed.
A short explanatory statement will be helpful. Defendant and his wife were sued for damages growing out of an automobile collision. They filed answers and cross-petitions. They asked for damages against the plaintiff. In his cross-petition he alleged that he was by education, training and profession a physician, surgeon and chemical engineer earning prior to his injuries and capable of earning $500 per month, all of which he had lost by such injuries.
On the trial he took the stand and testified that he was a medical doctor by virtue of his graduation from the medical school of Tennessee University and that he was a graduate of Pennsylvania State College in chemical engineering. On cross-examination he admitted that he was Arthur Osborne Phillips; that he had never been to the two universities; that his entire college work consisted of two courses in bacteriology at the University of Buffalo. The civil case was then dismissed with prejudice. Three days later he was arrested and charged with perjury in three counts.
The first court was that at the trial of the civil action he testified falsely by swearing that his name was James H. Phillips when as a matter of fact it was Arthur Osborne Phillips.
The second count was that he testified falsely by swearing that he was a graduate chemical engineer; that he graduated from Pennsylvania State College, which was false.
The third count was that he testified falsely by swearing that he was a graduate of the School of Medicine of the University of Tennessee, which was false.
At the start of this trial the state introduced into evidence the court files in the civil case. After some objection by counsel for the defendant counsel for the state read from defendant's cross petition the following: "That this defendant is, by education, training, and profession, a physician and surgeon and chemical engineer, earning prior to said injuries, and capable of earning, $500.00 per month; all of which he has lost by reason of such injuries."
Attention of the jury was also called to the fact that in the title of the case defendant's name was listed as James H. Phillips.
A deputy clerk of the court then testified that she administered the oath to defendant in the civil action.
The court reporter in the civil action then took the stand. He proceeded to read excerpts from defendant's testimony in the civil action. This testimony showed that he testified at first his name was James H. Phillips. Subsequently without leaving the stand he testified on cross-examination that his name actually was Arthur Osborne Phillips. The reporter further testified as follows, detailing the testimony of defendant in the Bloom case:
Subsequently after cross-examination without leaving the stand he testified:
The reporter further testified:
Subsequently upon cross-examination and without leaving the stand he testified as follows:
The reporter testified no further. There was no cross-examination and counsel for the defendant objected to the admission of the reporter's testimony and asked that it be stricken from the record. The objection and motion were overruled. There was no further evidence on the part of the state.
Counsel for defendant demurred to the state's evidence on the ground it did not show that the matter about which the state claimed defendant testified falsely was material in the civil action and that there had been no corroboration of the alleged perjured testimony beyond the introduction of the transcript in the civil case and that defendant had retracted every statement he had made under oath which might have been construed to be perjury. This demurrer was overruled. Counsel then moved for a directed verdict on the same ground. This motion was overruled.
The jury found the defendant guilty on all three counts. The motion for a new trial was on account of illegal testimony permitting the court reporter to testify, verdict was not sustained by the evidence in not giving requested instructions, in instructing the jury that the facts alleged to have been testified to falsely by the defendant were material, in overruling defendant's demurrer to the state's evidence, in overruling defendant's request for a directed verdict, the verdict was the result of passion and prejudice, and in overruling defendant's objections to certain comments made by the county attorney in his argument to the jury. This motion for a new trial was overruled.
The defendant appealed from the overruling of his demurrer, the overruling of his motion for a directed verdict and the order overruling his motion for a new trial.
His specifications of error follow his notice of appeal.
Defendant argues first that his motion for a directed verdict should have been sustained because if he made any false statements under oath he recanted and told the truth before he left the stand.
He next argues for the same result because the state did not prove that any false statement he made was on a material issue in the Bloom case.
In the third place, he...
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