State v. Storey
| Decision Date | 12 April 1921 |
| Docket Number | 22,149 |
| Citation | 182 N.W. 613,148 Minn. 398 |
| Parties | STATE v. FRANK STOREY |
| Court | Minnesota Supreme Court |
Defendant was indicted by the grand jury of Beltrami county charged with the crime of perjury, tried in the district court for that county before McClenahan, J., and a jury, and found guilty as charged in the indictment. Defendant's motion for a new trial was denied. From the judgment and sentence, defendant appealed. Affirmed.
Perjury -- proof by circumstantial evidence.
1. Perjury may be proved by circumstantial evidence, if it establishes guilt beyond a reasonable doubt.
Evidence of unrelated crime.
2. The trial court did not receive evidence that the defendant had committed another unrelated crime.
Employment of convicted witness by prosecutor.
3. Where a witness, on cross-examination, admits that he has been convicted of crime, it is proper on redirect examination to mitigate the odium of his conviction by showing that after he paid the penalty, he was received into the employ of the attorney who prosecuted him.
Evidence of sharing in bribe admissible.
4. Testimony tending to show that defendant participated in the fruits of bribery in connection with the case in which he is alleged to have given false testimony was proper.
Charge to jury.
5. There was no error in the charge of the court.
Walter F. Dacey and W. H. Gurnee, for appellant.
Clifford L. Hilton, Attorney General, James E. Markham, Assistant Attorney General, and Graham M. Torrance, County Attorney, for respondent.
Defendant was convicted of perjury, alleged to have been committed while testifying as a witness for the state on the trial of Joseph Thiebault of the charge of keeping an unlicensed drinking place in the village of Baudette. Defendant appeals.
1. The first claim is that the state failed to establish the falsity of defendant's testimony.
There was evidence tending to prove the following facts: In May, 1919, the county attorney of Beltrami county sent defendant and John Musolf from Bemidji to Baudette to make investigation as to illegal sale of liquor. They were there from May 7 to May 12 inclusive. On returning, defendant made a detailed report, showing that he had bought liquor from five persons whom he named in his report. One of those named was Thiebault. In each case defendant turned in a sample of the liquor bought which he had sealed and labeled. On May 21, while standing on the street in Bemidji a party of five men passed by. Defendant mentioned their names and mentioned Thiebault as one of them. Soon after that, defendant went to Duluth. Before leaving for Duluth, he was subpoenaed to appear before the grand jury on September 9. He told parties in Duluth that a man whom he named had told him there was $200 in it if he could fix those cases at Bemidji. A short time before September 9 he told another party he did not think he was going to Bemidji as a witness at all, and added: "If Torrance (the county attorney) happens to ask you that, if you see me in here, why tell him no, you didn't see me." He did not go to Bemidji until the afternoon of September 11. Then he did not go to the court house. After being there some time, he called on the county attorney and told him he had made a mistake as to three of the men charged. These three had entered pleas of not guilty. Two others who pleaded guilty he had no difficulty in identifying. Nevertheless, Thiebault and the others were indicted. Before Thiebault's case was called and while a case against one Dewey was on trial, defendant told another operator that there was $50 apiece in it in the Dewey case, that if they cleared all the cases there was $2,000 in it, and "another $2,000 when we get to Fergus Falls." When asked how the cases could be cleared, he said: "Just not identify the men and no jury in the world can throw a conviction on them." When he took the samples of liquor at Baudette, he put them in separate bottles and sealed the bottles with sealing wax and made an imprint on the wax with a Yale lock key. He was told by the county attorney to produce the key on the trial. He did not do so. When placed on the stand, he said he bought whiskey in the place charged as Thiebault's place on five successive days, and that always the same man was behind the bar and sold the liquor. There is evidence of another witness that, during all this time, Thiebault was in entire charge of this place and was the only man who tended bar or worked about the place. When defendant was asked on the trial of the Thiebault case whether Thiebault was the man who sold him the liquor, he said he was not. It is in this that the state charges perjury.
Under ordinary rules of evidence the verdict would be amply sustained. So strongly impressed was the trial judge who tried the Thiebault case that this defendant committed perjury that, after hearing his testimony, he ordered his arrest, acting under G.S. 1913, § 8564.
But defendant contends that the proof required to establish the fact of perjury is greater than is required to establish other crimes, that the books place "perjury and treason in a class by themselves insofar as proof is concerned."
There are old decisions that, to convict of perjury, two witnesses must testify directly to the falsity of defendant's oath. See Jones, Ev. (2d ed.) § 900.
This rule has been generally relaxed, but the greater number of decisions still sustain the rule that the positive testimony of at least one witness should be required, and, if there is but one such witness, that his testimony must be corroborated as to material facts, that "oath against oath" is never sufficient. 1 Russell, Crimes, p. 508; 3 Wigmore, Ev. §§ 2032, 2040 (); Greenleaf, Ev. § 257; Underhill, Crim. Ev. 468; Commonwealth v. Butland, 119 Mass. 317; State v. Gibbs, 10 Mont. 213, 25 P. 289, 10 L.R.A. 749; Gandy v. State, 27 Neb. 707; State v. Blize, 111 Mo. 464, 20 S.W. 210; People v. McClintic, 193 Mich. 589, 160 N.W. 461, L.R.A. 1917 C, 52; Galloway v. State, 29 Ind. 442; U.S. v. Hall, 44 F. 864; Williams v. Commonwealth, 91 Pa. St. 493; U.S. v. Wood, 14 Pet. 430, 11 L.Ed. 527.
To illustrate: In a case in California, where the rule is statutory, it was charged that, in a prosecution of another for larceny of a cow, defendant falsely testified that he met the cow on the road at a certain time near the residence of the party charged with the theft and that the person so charged then took her up as an estray. The court said: "To support the charge of perjury as to the alleged false statement of defendant that he met the cow at the time stated upon this particular public highway, it was necessary to produce the positive testimony of one witness at least that such meeting did not take place, as that the defendant was not at that time at that place, or that the cow was not there." People v. Wells, 103 Cal. 631.
The reason of the rule is stated in Thomas v. State, 51 Ark. 138, 10 S.W. 193, as follows:
This reason is a survival of what Mr. Wigmore calls the "quantitative theory of testimony." Witnesses are to be counted and their testimony, to an extent at least, is measured by force of numbers, not by weight. See Allen v. U.S. 194 F. 664, 667, 114 C.C.A. 357, 39 L.R.A. (N.S.) 385.
In State v. Courtright, 66 Oh. St. 35, 41, 63 N.E. 590, 591, the reason was stated as follows:
In Best, Evidence, §§ 605, 606, this reason is given:
In this case we are not primarily concerned with the question whether the direct testimony of one witness,...
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