United States v. Burkhardt

• Decision Date: 22 June 1887
• Citation: 31 F. 141
• Parties: UNITED STATES v. BURKHARDT.
• Court: U.S. District Court — District of Oregon

31 F. 141

UNITED STATES v. BURKHARDT.

United States Circuit Court, D. Oregon.

June 22, 1887

Syllabus by the Court

At the close of the instructions to the jury the court, in response to a question from a juror, said the jury might give the verdict in the case in which the defendant committed the alleged perjury such consideration as they thought it entitled to, when it also appeared from the record of the prior action, and the other evidence before the jury, that the jury therein must have disregarded the evidence of the defendant herein alleged to be false. Held, that the instruction was erroneous; and, although the verdict of guilty appeared to be fully justified by the evidence, the court could not say, on a motion for a new trial, that the error had no appreciable influence on the result, and therefore granted a new trial.

Lewis McArthur, for the United States.

W. W Page, for defendant.

DEADY J.

The defendant is accused by the grand jury of this district of the crime of perjury. The indictment states that on November 29, 1886, the case of Elizabeth Stapleton v. Oakland Home Ins. Co., an action to recover damages for the loss of the New Couch Hotel, destroyed by fire in this city on July 10 1886, was on trial in this court, when it became and was material to the determination of the issue therein whether said building was destroyed by the procurement of said Elizabeth, and whether the furniture contained therein had been removed therefrom by said Elizabeth prior to said fire that the defendant, being then duly sworn as a witness in said case, willfully and falsely swore that about two weeks before said fire, and about two days before said Elizabeth and her family left said building for the seaside, at Ilwaco, Washington Territory, Timothy Stapleton, her husband, with the aid of the defendant, and the knowledge and assistance of said Elizabeth, removed the furniture, bedding, crockery, carpets, cooking utensils, and cutlery from said hotel, with the exception of the bedsteads, and the mattresses thereon, and a sufficient amount of bedding, crockery, cutlery, and cooking utensils for four or five persons who remained in the building after the Stapletons left the same, to the Ash-street dock, in Portland, and then and there shipped the same, by the Oregon Railway & Navigation Company, to Ilwaco; whereas, in truth and in fact, as the defendant well knew when he so testified, none of said articles excepting five or six pairs of blankets, a small stove, two pulu mattresses, and sufficient cooking utensils and dishes to accommodate the Stapletons and their children while camping at Ilwaco, were so removed or shipped, but were destroyed by fire in and with said hotel on July 10, 1886. The defendant pleaded not guilty to the indictment, and was tried thereon May 24, 1887, and found guilty. He now moves for a new trial in arrest of judgment.

On the argument nothing was said in support of the motion in arrest of judgment; and the burden of the argument for a new trial was the refusal of the court to allow the defendant to offer proof on the question whether the Stapletons did cause the New Couch Hotel to be burned, and the remark of the court, in refusing to admit evidence on the subject, that the question had been decided in their favor in Stapleton v. Oakland Home Ins. Co., and was altogether immaterial in this case.

Certainly there was no error in the exclusion of this evidence, or rather in refusing to allow the defendant to go into the question. As was said by the court at the time, if Burkhardt was indicted for falsely swearing on the trial of John Doe for the murder of Richard Roe,...