Sullivan v. United States
Decision Date | 08 April 1908 |
Docket Number | 729. |
Citation | 161 F. 253 |
Parties | SULLIVAN v. UNITED STATES. |
Court | U.S. Court of Appeals — First Circuit |
Harvey H. Pratt (James E. Cotter and Joseph P. Fagan, on the brief) for plaintiff in error.
William H. Lewis, Asst. U.S. Atty., and Asa P. French, U.S. Atty.
Before COLT, PUTNAM, and LOWELL, Circuit Judges.
The plaintiff in error, herein called the defendant, was convicted under Rev. St. Sec. 5392 (U.S. Comp. St. 1901, p 3653), of false swearing in a proceeding for the naturalization of one Molloy. The false swearing charged in the indictment consisted of the defendant's testimony that he had known Molloy for over five years next preceding the hearing in Molloy's case, during which time Molloy had resided at Boston. To certain rulings of the court below the defendant excepted, and he has prosecuted a writ or error to this court.
The defendant's motion to quash was overruled by the Circuit Court, and the defendant excepted. In Betts v. United States, 132 F. 228, 231, 65 C.C.A. 452, 455, this court said:
'The law is settled that, with exceptional cases, where the federal courts have conformed themselves to the ancient local practice, error does not lie to the overruling of such a motion.'
Passing by the question, however, whether this motion to quash could be properly raised by the bill of exceptions, we think the motion was rightly overruled.
The defendant's exceptions to the introduction of evidence must also be overruled. There was no evidence of his duress, such as to exclude what he said to O'Neil, Waters, and Burke. The manifest of alien passengers was admissible. McInerney v. United States, 143 F. 729, 74 C.C.A. 655. There was evidence of the identity of Molloy, the passenger, with Molloy, the applicant for naturalization. No objection was made to the foundation laid by the government for the testimony of Burke concerning the certificate of naturalization seen by him in Molloy's possession. Had objection been taken, the defect, if any existed, might have been cured.
The only substantial question in the case is presented by the defendant's first and sixth requests for instruction, viz.:
The court refused to give these instructions, and the defendant duly excepted to the refusal, which he has assigned in his ninth assignment of errors.
The real question here presented is whether, under the rule of evidence in perjury cases, the manifest of itself was sufficient evidence to warrant the jury in finding a conviction of perjury.
Concerning the rule of evidence in perjury cases, and the reason upon which the rule is based, it is said:
Vin. 16 '(K) 328; The Queen v. Muscot, 10 Mod. 193; United States v. Wood, 14 Pet. 430, 438, 10 L.Ed. 527; Roscoe's Criminal Evidence (12th Ed.) p. 735; Regina v. Yates, Car. & Mar. 132.
The essence of the rule is that strong and clear proof is required to disprove the defendant's oath. The courts have always recognized the justice of the rule. The Supreme Court says:
'It is a right rule, founded upon that principle of natural justice, which will not permit one of two persons, both speaking under the sanction of an oath, and presumptively entitled to the same credit, to convict the other of false swearing, particularly when punishment is to follow. ' United States v. Wood, supra.
Under the rule, the proof sufficient to warrant conviction in a perjury case must be either (1) the testimony of two witnesses contradicting the defendant's oath, or (2) the testimony of one witness and corroborating circumstances, or (3) documentary proof which is equally strong and convincing.
In United States v. Wood the court considered that the documentary proofs in the form of the defendant's letters were proofs 'equivalent to the end intended to be accomplished by the rule,' and that the rule should not be so applied as to 'exclude all other testimony as strong and conclusive as that which the rule requires.'
In cases where oral testimony is offered to prove the perjury, corroborative evidence is required. In cases where documentary evidence is offered to prove the perjury, corroborative evidence is not required; but the documentary evidence must be as strong and convincing as where oral testimony is relied upon.
In the case at bar the documentary evidence offered to contradict the defendant's oath was the manifest.
Respecting this manifest Benjamin F. Maricle, a statistician employed in the inspector's department of the Immigration Bureau, testified as follows:
The manifest contains 22 questions which are asked each immigrant. These questions relate to name, age, and calling, nationality, etc. Question 15 reads as follows: 'Whether ever before in the United States; and, if so, when and where? ' To this question, as appears by the manifest, Molloy answered, 'No.'
The false swearing charged in the indictment, as we have already stated, consisted of the defendant's testimony that he had known Molloy for over five years next preceding the hearing in Molloy's naturalization case, during which time Molloy had resided in Boston; and the only evidence in contradiction of the defendant's oath is the answer made by Molloy in the manifest to the question whether he was ever before in the United States. An answer by the third party, not under oath, in a document of this kind, is manifestly insufficient under the rule to warrant a conviction of perjury.
And here again we may refer to United States v. Wood:
'It must be conceded no case has yet occurred in our own or in the English courts where a conviction for perjury has been had without a witness speaking to the corpus delicti of the defendant, except in a case of contradictory oaths by the same person; but it is exactly in the principle of the exception, which is by every one admitted to be sound law, that this court has found its way to the conclusion that cases may occur when the evidence comes so directly from the defendant that the perjury may be proved without the aid of a living witness.'
We do not think that the above examples from United States v. Wood were intended to be exclusive, but are given rather as illustrations. The whole spirit and reasoning of the opinion in that case is simply to the effect that when documentary evidence is relied upon in perjury cases it must be of a strong and convincing character, such as...
To continue reading
Request your trial-
Clark v. United States
...Clayton v. United States (C. C. A.) 284 F. 537; Allen v. United States (C. C. A.) 194 F. 664, 39 L. R. A. (N. S.) 385; Sullivan v. United States (C. C. A.) 161 F. 253. The lower court, however, though confessing some difficulty "to ascertain with mathematical certainty the state of her mind......
-
State v. Nanna
... ... State v. McFarland, 190 S.W. 9; ... State v. Lloyd, 7 S.W.2d 344; Fasulo v. United ... States, 47 S.Ct. 200; State v. Eisenhour, 132 ... Mo. 140. (2) There was no substantial ... Archer, 6 S.W.2d 912; State v. Evans, 267 Mo ... 163; State v. Hunter, 181 Mo. 316; Sullivan v ... United States, 161 F. 253; 14 C. J. 1428; 30 Cyc. 1452; ... Radcliffe v. Chanez, 110 P ... ...
-
United States v. Nessanbaum, 10940.
...however, to require documentary evidence as strong and convincing as where oral testimony is relied upon. See Sullivan v. United States, 1 Cir., 1908, 161 F. 253, holding the evidence insufficient where the document was the unsworn statement of a third person. In one case a conviction for p......
-
United States v. Lykes Bros. Steamship Co., Civ. A. No. 67-1692.
...Co., 196 F.2d 1002 (2nd Cir. 1906); and a ship's manifest, McInerney v. United States, 143 F. 729 (1st Cir. 1906); Sullivan v. United States, 161 F. 253 (1st Cir. 1908); United States v. Klissas, 218 F.Supp. 880, 883-884 (D. Md.1963) to be official records is not persuasive to cause this Co......