State v. Woolley

• Decision Date: 04 May 1937
• Docket Number: No. 1103.,1103.
• Citation: 192 A. 1
• Parties: STATE v. WOOLLEY.
• Court: Vermont Supreme Court

192 A. 1

STATE

v. WOOLLEY.

No. 1103.

Supreme Court of Vermont. Windham.

May 4, 1937.

Exceptions from Windham County Court; Olin M. Jeffords, Judge.

Martha Woolley was convicted of perjury, and she brings exceptions.

Exceptions overruled.

Argued before POWERS, C. J., and SLACK, MOULTON, SHERBURNE, and BUTTLES, JJ.

Ernest W. Gibson, Jr., of Brattleboro (A. Luke J. Crispe, of Brattleboro, on the brief), for respondent. Ernest F. Berry, State's Atty., of Brattleboro, for the State.

MOULTON, Justice.

This case comes here upon exceptions by the respondent following her conviction of the crime of perjury. It is alleged in the information that she swore falsely when a witness for the State at the trial of Howard Moody for the murder of her husband, Prosper Woolley, by testifying that she did not see Moody knock her husband down and did not see him choke him. Moody was acquitted of the charge of murder, but found-guilty of an assault. The first question arises under the respondent's exception to the denial of her motion for a directed verdict, made at the close of all the evidence. The grounds for the motion might well have been stated with more particularity, but we think that it was sufficiently explicit to cause the court to understand the issue sought to be raised, which was the absence of the direct testimony of at least one credible witness, with corroboration, showing the falsity of the respondent's testimony. That the testimony was material to the issue in the Moody case is not denied.

The evidence upon which the State seeks to uphold the verdict tended to show the following facts: (1) That Moody and Woolley engaged in an altercation upon the porch of the latter's home, during which blows were struck; (2) that after Moody had left the scene, Woolley was found lying on the floor of the porch in a dying condition, although his death was not caused by asphyxiation or strangulation, but by heart failure brought on by excitement and physical exertion; (3) that he had certain abrasions and marks upon his head which might have been caused by blows of a fist, and other abrasions upon his arms and shoulders of a type which would be caused by striking or sliding against a hard surface; (4) that there was a discoloration on his neck, but no indentation, and a small internal hemorrhage in the neck muscle, which could have been caused by the hard pressure of a thumb; (5) that the respondent was the only other person in or about the house, and that she was, at least a part of the time, on the porch or where she could see the contestants through the window; (6) that, soon after the altercation, she stated to several witnesses who came to the house that Moody knocked her husband down and choked him, and, later on, said the same thing to the officers who came to interview her, and signed a written statement to that effect, and, still later, testified under oath, at the inquest, that Moody knocked him down, but did not, to her recollection, choke him.

The ancient rule which required, as a basis for a conviction of perjury, the testimony of two credible witnesses swearing directly to the falsity of the matter concerning which it was claimed that the accused was foresworn, and which, as Mr. Wigmore tells us (Wigmore, Evidence [2d Ed.] par. 2040), was a rule of the ecclesiastical law adopted by the common law upon the abolition of the court of the Star Chamber and the transfer of its jurisdiction to the King's Bench, has long since been relaxed, and it is now held that the testimony of one such witness, corroborated by the testimony of another or by circumstances, is sufficient, if thereby the crime is proved beyond a reasonable doubt. Commonwealth v. Butland, 119 Mass. 317, 324; Commonwealth v. Parker, 2 Cush. (Mass.) 212, 223; State v. Campbell, 93 Conn. 3, 104 A. 653, 656; State v. Ewen, 140 A. 449, 450, 6 N.J.Misc. 151; State v. Lupton, 102 N.J.Law, 530, 133 A. 861, 863; Woodward v. State, 198 Ind. 70, 152 N.E. 277, 278; People v. Alkire, 321 Ill. 28, 151 N.E. 518, 519; State v. Courtright, 66 Ohio St. 35, 63 N.E. 590, 591; People v. Henry, 196 App.Div. 177, 187 N.Y.S. 673, 676; Schwartz v. Commonwealth, 27 Grat.(Va.) 1025, 21 Am.Rep. 365, 366; Peterson v. State, 74 Ala. 34, 36; Pressley v. State, 18 Ala.App. 40, 88 So. 291, 293; Tindall v. State, 99 Fla. 1132, 128 So. 494, 497; Gordon v. State, 158 Miss. 185, 128 So. 769; Botner v. Commonwealth, 219 Ky. 272, 292 S.W. 805, 806; United States v. Wood, 14 Pet. 430, 438-440, 10 L.Ed. 527, 531-533; 1 Greenleaf, Evidence (16th Ed.) par. 257; Wigmore, Evidence (2d Ed.) par. 2042; 2 Wharton, Criminal Law (12th Ed.) par. 1585; Underhill, Criminal Evidence (4th Ed.) par. 757; Annotations 15 A.L.R. 634; 85 Am.Dec. 499; and see State v. Chamberlin, 30 Vt. 559, 564, 571. This, however, is the irreducible minimum where oral evidence is relied upon, and a conviction cannot be sustained upon the testimony of one uncorroborated witness. State v. Trask, 42 Vt. 152, 156, 157; State v. Sargood, 80 Vt. 415, 421, 68 A. 49, 130 Am.St.Rep. 995, 13 Ann.Cas. 367; Hammer v. United States, 271 U.S. 620, 626, 46 S.Ct. 603, 604, 70 L.Ed. 1118; State v. Ellison, 114 N.J.Law, 237, 176 A. 338; and see State v. Bissell, 106 Vt. 80, 95, 170 A. 102.

Whether evidence of circumstances giving rise to an inference of the falsity of the alleged perjured testimony is sufficient to support a conviction of the crime is a question upon which there is a conflict of authority. Many decisions, and perhaps the weight of authority, hold that positive and direct evidence is necessary, and circumstantial evidence, standing alone, is not enough. Allen v. United States (C.C.A.) 194 F. 664, 39 L.R.A.(N.S.) 385; Clayton v. United States (C.C.A.) 284 F. 537, 539; Annotations 15 A.L.R. 634; 27 A.L.R. 857; 42 A.L.R. 1063. That the testimony must be direct and positive is stated in People v. Alkire, supra; Woodward v. State, supra; Commonwealth v. Parker, supra; State v. Ewen, supra; and other cases.

On the other hand, in a number of jurisdictions, the rule has come to mean "hardly more than the common-law rule that the defendant must be proved guilty beyond a reasonable doubt." Kahn v. United States (C.C.A.) 214 F. 54, 55, 56, certiorari denied 234 U.S. 763, 34 S.Ct. 997, 58 L.Ed. 1581. In Hann v. State, 185 Ind. 56, 113 N.E. 304, 306, it is said, "The direct evidence contemplated is not limited to a denial in ipsissimis verbis of the testimony given by the defendant, but includes any positive testimony of a contrary state of facts from that sworn to by him at the former trial, or which is absolutely incompatible with his evidence, or physically inconsistent with the facts so testified to. This evidence must be of such a character as to exclude every other reasonable hypothesis except that of the defendant's guilt. * * * If the evidence is composed of testimony as to certain circumstances which, although they be accepted as true, are not absolutely irreconcilable with the testimony of the defendant, any reasonable possibility which remains unnegatived, and which reconciles the circumstances shown with the statement in question, should be resolved in favor of the defendant and his innocence." See, also, People v. Follette, 74 Cal.App. 178, 240 P. 502, 512. Sometimes circumstantial evidence is of such character as to be virtually positive or direct (Maines v. State, 26 Tex.App. 14, 9 S.W. 51, 53), and it is said in Marvel v. State, 3 W.W.Harr. (Del.) 110, 131 A. 317, 319, 42 A.L.R. 1058, that the line between direct and circumstantial evidence is at times most shadowy; that evidence held to be direct by some courts is considered to be circumstantial by others; and that this is responsible for a part of the contrasting opinion.

There are two recognized exceptions to the rule that circumstantial evidence is not sufficient to support a conviction of perjury. One is where the respondent has sworn to matters, the falsity of which is not in its nature susceptible of direct proof, such as his recollection, knowledge, or the intent with which he did an act. People v. Doody, 172 N.Y. 165, 64 N.E. 807, 808; State v. Wilhelm, 114 Kan. 349, 219 P. 510, 511; State v. Faulkner, 175 Mo. 546, 75 S.W. 116, 127; Mallard v. State, 19 Ga. App. 99, 90 S.E. 1044; Allen v. United States, supra; and see 1 Greenleaf, Evidence (16th Ed.) par. 258. The other is where the falsity may be shown by the respondent's own letters, or other documents found in his possession and treated by him as containing evidence of the facts stated by him, or where there is a public record well known by him when he took the oath. United States v. Wood, supra, 14 Pet. 430, 10 L.Ed. 527, at page 533; Hammer v. United States, supra; Phair v. United States (C.C.A.) 60 F.(2d) 953, 954; 1 Greenleaf, Evidence (16th Ed.) par. 258; 2 Wharton, Criminal Law (12th Ed.) par. 1587.

In an increasing number of jurisdictions, it is held that a conviction may be sustained upon circumstantial evidence, when corroborated, if thereby the respondent's guilt is established by the degree of persuasion required in all criminal cases. Marvel v. State, 3 W.W.Harr.(Del.) 110, 131 A. 317, 319, 42 A.L.R. 1058; State v. Cerfoglio, 46 Nev. 332, 205 P. 791, 213 P. 102, 27 A.L.R. 848, 853, 854; Wolford v. Commonwealth, 218 Ky. 420, 291 S.W. 366, 367; Rex v. Natanson, (1927) 3 Dom. L.Rep. 308, 315; Ex parte Metcalf, 8 Okl. Cr.R. 605, 129 P. 675, 44 L.R.A.(N.S.) 513, 521. In Texas, under a statute requiring two witnesses or one witness strongly corroborated, circumstantial evidence is held to be sufficient. Miles v. State, 73 Tex.Cr. R. 493, 165 S.W. 567, 569; Maroney v. State, 45 Tex.Cr.R. 524, 78 S.W. 696, 697. And in Plummer v. State, 35 Tex.Cr.R. 202, 33 S.W. 228, it is said, "We hold that the falsity of the statement can be established by circumstantial evidence, but this must be done by the testimony of at least two credible witnesses, or by one credible witness strongly corroborated, as the...