State v. Wilson

• Citation: 83 Wash. 419,145 P. 455
• Decision Date: 08 January 1915
• Docket Number: 12179.
• Parties: STATE v. WILSON.
• Court: United States State Supreme Court of Washington

145 P. 455

83 Wash. 419

STATE v. WILSON.

No. 12179.

Supreme Court of Washington

January 8, 1915

Department 1. Appeal from Superior Court, Okanogan County; C. E Claypool, Judge.

W. C Wilson was convicted of perjury in the second degree, and he appeals. Reversed and remanded for new trial.

William C. Brown, of Okanogan, for appellant.

J. W Faulkner, of Okanogan, Neal & Neal, of Conconully, and Chas A. Johnson, of Okanogan, for the State.

CHADWICK J.

Appellant is charged by information with the crime of perjury in the first degree. A further statement of the charge is unnecessary to the determination of the case in this court. After a trial, appellant was convicted of the crime of perjury in the second degree. A judgment upon the verdict was rendered, and defendant was sentenced to imprisonment in the state penitentiary for a term of not less than six months nor more than two years.

Numerous errors are assigned, but few of them will require discussion in this court.

The court instructed the jury that an information charging perjury in the first degree includes the lesser crime of perjury in the second degree, and if the jury found to their satisfaction and beyond a reasonable doubt that all of the essential elements of the crime charged had been proven, except the materiality of the testimony charged to have been falsely given, the defendant would be guilty of the crime of perjury in the second degree, and that it should find accordingly.

At common law the crime of 'willful and corrupt perjury' is defined by Sir Edward Coke to be:

'A crime committed when a lawful oath is administered in some judicial proceeding to a person who swears willfully, absolutely and falsely in a matter material to the issue or point in question.' 4 Black. Com. 137; 3 Inst. 164.

'Perjury by the common law seemeth to be a willful false oath by one who, being lawfully required to depose the truth in any proceeding in a court of justice, swears absolutely in a matter of some consequence to the point in question, whether he be believed or not.' Ba. Abr. Tit. 'Perjury'; 1 Russ. Crimes (Int. Ed.) 294.

'Perjury, not speaking of its affinities, is the willful giving under oath, in a judicial proceeding or other course of justice, of false testimony material to the issue or point of inquiry.' 1 Bishop, N.C. Law, 468(4).

False swearing in any proceeding other than in a court of justice was not taken account of as a crime at common law. Perjury, however, was noticed and punished solely upon the theory that a false oath was 'an obstruction of justice.' At common law the false oath 'must be taken either in a judicial proceeding of the like nature, wherein the king's honour or interest are concerned.' 1 Russ. Crimes (Int. Ed.) 294.

'The law takes no notice of any perjury but such as is committed in some court of justice having power to administer an oath; or before some magistrate or proper officer invested with a similar authority, in some proceedings relative to a civil suit or a criminal prosecution; for it esteems all other oaths unnecessary, at least, and therefore will not punish the breach of them.' 4 Black. Com. 137.

'In the case of perjury, I take the circumstances requisite to be these: The oath must be taken in a judicial proceeding, before a competent jurisdiction; and it must be material to the question depending.' Lord Mansfield, in Rex v. Aylett, 1 T. R. 63.

Our Legislature has defined perjury:

'Every person who, in any action, proceeding, hearing, inquiry or investigation, in which an oath may lawfully be administered, shall swear that he will testify, declare, depose or certify truly, or that any testimony, declaration, deposition, certificate, affidavit or other writing by him subscribed is true, and who in such action, proceeding, hearing, inquiry or investigation shall state or subscribe as true any material matter which he knows to be false, shall be guilty of perjury in the first degree and shall be punished by imprisonment in the state penitentiary for not more than fifteen years.' Rem. & Bal. Code, § 2351.

This statute is clearly no broader than was the common law, and must, when considered in the light of other statutes, be held to apply in all cases where the alleged false oath is taken and testimony is given in or in aid of a judicial proceeding. Courts and Legislatures have recognized that perjury as defined at common law and by statute is not only complete within itself, but is exclusive of other offenses against the truth. Consequently the Legislature of this state and of other states have passed many special statutes, and many general statutes making certain offenses perjury that would not be so either under the common law or under the statute, for crimes are not to be created by construction. If there be a reasonable doubt, justice demands that it be resolved in favor of innocence of the party charged. State v. Hazeltine, 143 P. 436; State v. Furth, 144 P. 907.

An evidence of the legislative intent to reflect this principle in its work may be found in statutes making the following offenses perjury: Any willful, false swearing in any bank examination (section 3300); the taking of a false oath when registering for voting in a school district of the first class (section 4702); false statements by candidates at primary elections (section 4835); the swearing in of an illegal vote at an election (section 4838); a false sworn statement under the Sales in Bulk Law (section 5298); a false oath in procuring marriage licenses (sections 7164, 7165); a false oath to support the registration of a land title under the Torrens Act (section 8898); a false listing of property for taxation (section 9130). These offenses, in the absence of a special statute, would not be punishable under section 2351.

Section 2351 was passed in 1909. At the same time and as a part of the same act, the Legislature passed a general statute, which, as counsel states and so far as we know, is unknown to the law of any other state. It is an original conception so far as the law of this state is concerned.

'Every person who, whether orally or in writing, and whether as a volunteer or in a proceeding or investigation authorized by law, shall knowingly swear falsely concerning any matter whatsoever, shall be guilty of perjury in the second degree and shall be punished by imprisonment in the state penitentiary for not more than five years, or by imprisonment in the county jail for not more than one year.' Rem. & Bal. Code, § 2353.

Section 2351 defines a felony. Under section 2353, one may be punished as for a felony or a misdemeanor, as the trial judge may determine.

It is the contention of the state that, in so far as perjury may be committed 'in a proceeding or investigation authorized by law,' perjury in the second degree is included in a charge of perjury in the first degree. We cannot assent to this reasoning. If it were so, the Legislature has done a vain and useless thing. The adoption of section 2353 would serve no purpose and lead only to irreconcilable conflict and confusion; for if both sections can be made to apply to the same state of facts and cover any and 'all proceedings or investigations authorized by law,' and these words include a civil 'action' (section 2351) or a proceeding in a court of justice or in furtherance of its jurisdiction and its functions, any convicted person could contend for a sentence under the misdemeanor clause of section 2353. Thus a false oath taken in a court of justice, which from the earliest times has been held in disfavor and contempt (it was called 'willful and corrupt' perjury at common law), and punished by the severest penalties, would be reduced to a misdemeanor if the judge pronouncing the...