Thompson v. People
| Decision Date | 16 October 1899 |
| Citation | 59 P. 51,26 Colo. 496 |
| Parties | THOMPSON v. PEOPLE. |
| Court | Colorado Supreme Court |
Error to district court, El Paso county.
J. W Thompson was convicted of perjury, and he brings error. Affirmed.
W. D. Lombard and Crowell & McParlin, for plaintiff in error.
David M. Campbell, Atty. Gen., Calvin E. Reed, Asst. Atty. Gen Dan B. Carey, Asst. Atty. Gen., and Henry McAllister, Dist Atty., for the People.
The plaintiff in error was tried in the district court of El Paso county upon an information charging him with the crime of perjury. The trial resulted in a verdict of guilty. Motions for a new trial and in arrest of judgment were filed and overruled, and he was sentenced to confinement in the penitentiary for the term of five years. To review this judgment he brings the case here on error. The assignments of error present substantially three grounds for reversal: First, that the information is fatally defective in matters of substance; second, that the evidence introduced upon the trial was insufficient to sustain the verdict; third, that there was error in the trial in the admission of, and refusal to admit, certain testimony, and error in the giving and refusing of certain instructions.
In support of the first ground it is contended that the information is defective, because it does not appear, either by express averment or a statement of facts from which it might be presumed, that the district court of El Paso county had jurisdiction of the case in the trial of which the perjury is alleged to have been committed; and because it does not set forth in what manner the testimony of the defendant was material to the issue. The information, inter alia, states that: 'J. W. Thompson, on the 28th day of January, A. D. 1898, at the said county of El Paso, did then and there, before the First division of the district court of the Fourth judicial district of the state of Colorado, sitting within and for the county of El Paso, state of Colorado, the Honorable Horace G. Lunt, one of the judges of said court, presiding, in a certain criminal case and prosecution coming on to be heard on a certain issue between the people of the state of Colorado and J. H. Cremar, wherein the people of the state of Colorado were plaintiffs and the said J. H. Cremar was defendant, and which was then and there tried by a jury in that behalf, duly sworn, between the parties aforesaid, upon which said trial the said J. W. Thompson then and there appeared as a witness for and on behalf of the said defendant, J. H. Cremar, and was then and there duly sworn before the Honorable Horace G. Lunt, judge of said court as aforesaid, by E. K. Gaylord, the deputy clerk of said district court, that the evidence which the said J. W. Thompson should give to the court then and there and to the jury so sworn as aforesaid, touching the matters in question, should be the truth, the whole truth, and nothing but the truth, he, the said E. K. Gaylord, deputy clerk aforesaid, then and there having sufficient authority to administer the said oath to the said J. W. Thompson in that behalf; and at and upon the trial of the issue so joined between the parties aforesaid it then and there became and was a material question whether, upon the evening of August 11, 1897, after the shooting of one A. F. Meyers by the said J. H. Cremar, and while the said J. H. Cremar was leading the said A. F. Meyers from the store in which the said shooting had occurred, and upon the sidewalk in front thereof, the said A. F. Meyers handed to any one a pistol or revolver of any kind, saying at the time, 'Take this,' and that the said J. W. Thompson, being so sworn as aforesaid, then and there, in the trial of the said issue, upon his oath aforesaid, unlawfully, feloniously, falsely, corruptly, knowingly, willfully, and maliciously, before the said jurors so sworn as aforesaid, and the Honorable Horace G. Lunt, judge of said court, as aforesaid, did depose and swear, amongst other things, in substance and to the effect following; that is to say: That as the said A. F. Meyers came out of the door with the said J. H. Cremar, the said J. W. Thompson saw the said A. F. Meyers hand to some one a blue-barreled pistol, saying at the time, 'Take this,' whereas, in truth and in fact the said A. F. Meyers, as he came out of the said store, upon said occasion, or either in the store, or on the sidewalk in front thereof, or in any other place, did not hand to any one a blue-barreled pistol, or any other pistol or weapon of any kind,--all of which the said J. W. Thompson well knew; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the said the people of the state of Colorado.' It may be conceded that this general form of allegation would be bad by the rules of common law, but, referring to section 1272 of our Criminal Code (Mills' Ann. St.), it will be seen that in this state the common law has been modified.
This section provides that: 'In every indictment for perjury or subornation of perjury it shall be sufficient to set forth the substance of the offense charged upon the defendant, and before what court or authority the oath of affirmation was taken, averring such court or authority to have had full power to administer the same, together with the proper averment or averments to falsify the matter or matters wherein the perjury is assigned,' etc. It will be observed that by the provisions of this section it is sufficient to aver in the information that the court or authority before which the oath was taken had full power to administer the same. This section is substantially the same as St. 23 Geo. II. c. 11. Under that statute the English decisions are that it is only necessary to state the substance of the offense, the name of the court, and aver the court's authority to administer the oath. To the same effect are the decisions in this country under similar statutes. Lavey v. Reg., 17 Q. B. 496; Rex v. Callanan, 6 Barn. & C. 102; Reg. v. Dunning, L. R. 1 Crown Cas. 290; 2 Chit. Cr. Law, 507; Rex v. Dowlin, 5 Term R. 311; People v. Phelps, 5 Wend. 10; Halleck v. State, 11 Ohio 400; State v. Maxwell, 28 La. Ann. 361; People v. Greenwell, 5 Utah 108, 13 P. 89; Masterson v. State, 144 Ind. 240, 43 N.E. 138; Maynard v. People, 135 Ill. 416, 25 N.E. 740; State v. Green, 100 N.C. 419, 5 S.E. 422. While it is true that the information does not contain an express averment that the district court of El Paso county had jurisdiction of the case in which the alleged false testimony was given, it does aver that upon the trial of a certain criminal case, of which that court prima facie had cognizance, the plaintiff in error was duly sworn as a witness by the deputy clerk, and that he had sufficient authority to administer the oath. We think, therefore, that in this particular the information not only conforms to the requirements of the statute, but by necessary implication states that the proceeding in which the oath was administered was one over which the district court had jurisdiction. Nor is the information defective because of the failure to set forth how, or in what way, the evidence alleged to be false was material to the issue. It is well settled that it is sufficient if its materiality appears either from the facts alleged or by direct averment. 2 Bish. Cr. Proc. § 915; Williams v. State, 68 Ala. 531; Dilcher v. State, 39 Ohio St. 130; People v. Brilliant, 58 Cal. 214; Gandy v. State, 24 Neb. 717, 40 N.W. 302; 16 Enc. Pl. & Prac. p. 343, and cases cited in note 1.
The information avers that 'at and upon the trial of the issue so joined between the parties aforesaid it then and there became and was a material question whether, upon the evening of August 11, 1897, after the shooting of one A. F Meyers by the said J. H. Cremar, and while the said J. H. Cremar was leading the said A. F. Meyers from the store in which the said shooting had occurred, and upon the sidewalk in front thereof, the said A. F. Meyers handed to any one a pistol or revolver of any kind, saying at the time, 'Take this." And further avers that the plaintiff in...
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