State v. Stilwell

• Decision Date: 18 December 1923
• Parties: STATE v. STILWELL. [*]
• Court: Oregon Supreme Court

221 P. 174

109 Or. 643

STATE v. STILWELL. ^[*]

Supreme Court of Oregon

December 18, 1923

In banc.

Appeal from Circuit Court, Union County; Walter H. Evans, Judge.

F. E Stilwell was convicted of perjury, and appeals. Affirmed.

Colon R. Eberhard, of La Grande (Cochran & Eberhard and C. H. Finn, all of La Grande, on the brief), for appellant.

A. A. Smith, of Baker (I. H. Van Winkle, Atty. Gen and Ed. Wright, Dist. Atty., of La Grande, on the brief), for the State.

BEAN J.

The defendant, F. E. Stilwell, was indicted by the grand jury of Union county, and tried and found guilty of the crime of perjury. From a judgment of sentence he appeals, assigning errors.

The indictment is in the form found in appendix to volume 1 of Or. L., and charges in part as follows:

F. E Stilwell on the 9th day of June, 1919, in the county of Union and state of Oregon, on his examination as a witness duly sworn to testify the truth, in the trial of an action at law then pending in the circuit court of the state of Oregon for Union county, between F. E. Stilwell, plaintiff, and W. J. Welch, defendant, and F. E. Stilwell, plaintiff, and Chris Olson, defendant, which two causes were then and there tried together, did feloniously, knowingly, willfully and corruptly testify falsely in this respect--the said F. E. Stilwell testified that there was no written agreement between him and the defendant, W. J. Welch, in relation to the matter and said cause then and there in said court pending; that he never wrote one certain instrument of writing purporting to be an agreement between him and the said W. J. Welch, then and there marked "Defendant's Exhibit 2," and introduced and admitted in evidence in said cause; that he did not know whose handwriting the said instrument was in; that he did not know who wrote on said instrument the signature "F. E. Stilwell"; that W. J. Welch did not sign said instrument in his presence; and that he had not seen said instrument before, said instrument being in words, letters, figures, and characters as follows:

"La Grande, Oregon, March 12-17.

"This agreement entered into this 12th day of March, 1917, between F. E. Stilwell, party of the first part, and W. J. Welch, party of the second part, witnesseth: F. E. Stilwell agrees to graze about 300 head of cattle for second party at an agreed price of 65 cents per head per month. F. E. Stilwell further agrees to further salt and gather beef cattle when fat, and further agrees to gather all remaining cattle in the fall, and turn them over to second party at the T L Ranch free from any expense to second party, except the pasturage rate named above.

[Signed] F. E. Stilwell.

"W. J. Welch."

That in truth the defendant wrote said written agreement signed by himself, and that said W. J. Welch signed said instrument in the presence of the defendant; that the said statements and matter testified to by the defendant as above alleged were material in the cause, "F. E. Stilwell v. W. J. Welch," then on trial in said court; that said cause was an action brought by the said F. E. Stilwell against the said W. J. Welch in assumpsit to recover a balance alleged to be due on a pasturage bill alleged to be owing to the then plaintiff by the said W. J. Welch, and under the issues and in the pleadings of said cause it was claimed and alleged by the said plaintiff that there was no written contract; that he had taken a large number of cattle of the said W. J. Welch at 65 cents a month to graze for the season of six months upon an oral contract, while on the other hand it was claimed and alleged by the then defendant, W. J. Welch, that the said instrument of writing contained the terms of the agreement, and that it was not understood or agreed that the said W. J. Welch should pay the said 65 cents a month for the season, but should pay said rate per head for cattle for the time they actually grazed on the lands owned or controlled by the defendant herein and plaintiff in said action, and the testimony of the defendant aforesaid became and was material in said court.

It will be seen from the indictment that the alleged false testimony of the defendants was given by him upon the trial to prove the issue of the case of "F. E. Stilwell v. W. J. Welch" in the circuit court for Union county. The cause was tried at the same time that another action was tried; that of "F. E. Stilwell, Plaintiff, v. Chris Olson, Defendant." It appears from the record that defendant, F. E. Stilwell, originally commenced an action in the circuit court for Union county against W. J. Welch and Chris Olson. Afterward the action was dismissed as to the defendant W. J. Welch, and another action was instituted in that court by F. E. Stilwell as plaintiff against W. J. Welch as defendant. The first action mentioned was continued and prosecuted as against Chris Olson. During the proceedings of that case the name of the case "F. E. Stilwell, Plaintiff, v. W. J. Welch and Chris Olson, Defendants," was retained during most of the proceedings, the verdict being rendered and the judgment entered in the case designated F. E. Stilwell, plaintiff, v. Chris Olson. The clerk certified to the several papers and the original pleadings filed in the action and the copies of the orders and entry of judgment as the judgment roll in the case of F. E. Stilwell v. Chris Olson. At the time of trial of the civil cases it was stipulated by counsel for the respective parties that the two cases mentioned should be tried together at the same time, and they were so tried. In part of the journal entries made during the trial the names of the cases appear as "F. E. Stilwell v. W. J. Welch and Chris Olson, Defendants." Two separate verdicts were rendered and two separate judgments thereon were entered.

Upon the trial of the defendant in the criminal action the state offered and introduced the judgment rolls in the two civil actions mentioned above. The defendant by his counsel objected to the introduction of these exhibits on the ground of a variance from the allegations of the indictment, and at the appropriate time requested the court to instruct the jury to return a verdict of acquittal. This request was based largely upon the same grounds as the objections to the exhibit and also insufficiency of the evidence.

It will be noticed by the indictment that the testimony of the defendant, F. E. Stilwell, which is alleged to have been false, is alleged to have been given in the trial of an action at law then pending in the circuit court of the state of Oregon, for Union county, between F. E. Stilwell, plaintiff, and W. J. Welch, defendant, which action was tried together with the case of F. E. Stilwell, plaintiff, and Chris Olson, defendant. The fact that these two cases were tried at one and the same time, which appears to have been for the sake of economy, does not conclusively show that the two cases were consolidated. Section 526, Or. L., provides that, whenever two or more actions or suits are pending at one time between the same parties and in the same court upon causes which might have been joined, the court may order the same to be consolidated. That was not done in the civil cases mentioned, and it was only with the consent of the parties made by their counsel in open court that the two cases were tried at the same time. Therefore, the only reason for naming the other action of "F. E. Stilwell v. Chris Olson" in the indictment was for the purpose of correctly describing the proceedings in the trial of the action of "F. E. Stilwell, Plaintiff, v. W. J. Welch, Defendant." The latter is the judicial proceeding, which it was essential to accurately prove, in which the perjury in the present case is alleged to have been committed. Section 208, Or. L., provides that, after docketing the judgment, the clerk shall prepare and file in his office the judgment roll as provided in that section. Subdivision 2 provides that, in cases other than where judgment is entered upon default, the clerk shall "attach together in like manner the summons and proof of service, the pleadings, bill of exceptions, all orders relating to a change of parties, together with a copy of the entry of judgment, and all other journal entries or orders in any way involving the merits, and necessarily affecting the judgment." The judgment roll in the two civil cases named was prepared in accordance with section 208, and duly certified by the clerk, indorsed, and filed, and was introduced in evidence upon the trial of the present criminal action. Turner v. Hendryx, 86 Or. 590, 601, 167 P. 1019, 169 P. 109.

Subdivision 3 of section 208, Or. L., requires the clerk to indorse on the outside of the judgment roll inter alia the names of the parties to the action. In the second civil case mentioned in the indictment, on the judgment roll which was admitted in evidence in the criminal action, the clerk indorsed the names of the parties as "F. E. Stilwell, Plaintiff, v. Chris Olson, Defendant." This was a strict compliance with the statute in that respect. At the time of the trial and the rendition of judgment and for a long time prior thereto W. J. Welch was not a party to that action. The issues therein were made between F. E. Stilwell as plaintiff and Chris Olson as defendant, and the cause was tried and a verdict rendered and a judgment entered thereon as between the two parties last named. The fact that the cause was tried at the same time the case first mentioned in the indictment was, did not of itself make either of the parties to one action a party to the other. True, at one time W. J. Welch was a party defendant to the second case named. Therefore in the Olson case there was no material variance with the allegation of the indictment in the names of the parties to the action,...