United States v. Edmondson

• Decision Date: 30 May 1969
• Docket Number: No. 26628.,26628.
• Citation: 410 F.2d 670
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William B. EDMONDSON, Sr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

410 F.2d 670 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. William B. EDMONDSON, Sr., Defendant-Appellant.

No. 26628.

United States Court of Appeals Fifth Circuit.

April 25, 1969.

Rehearing Denied May 30, 1969.

Morel Montgomery (Court-appointed), Fred Blanton, Jr., Birmingham, Ala. (Associate Counsel), for defendant-appellant.

Macon L. Weaver, U. S. Atty., R. Macey Taylor, J. Richmond Pearson, Asst. U. S. Attys., Birmingham, Ala., for plaintiff-appellee.

Before RIVES, BELL and DYER, Circuit Judges.

RIVES, Circuit Judge:

Edmondson appeals from his conviction for perjury¹ and raises questions of sufficiency of the indictment, sufficiency of the evidence, and validity of the court's charge to the jury. We affirm.

Edmondson was president of American Southern Publishing Company, a corporation headquartered in Northport, Alabama. In an apparent effort to bolster the credit rating of his company, Edmondson allegedly had stationery printed bearing the letterhead of Georgia State Department of Education, Jack P. Nix, Superintendent of Schools, and fabricated two letters under that letterhead about which the alleged perjury centers. Both letters were addressed to Edmondson as President of American Southern Publishing Company. The first, dated August 10, 1966 (Exhibit No. 1), appears to be signed by Jack P. Nix, "State Superintendent of Education." It purports to confirm a verbal agreement "between you and the Georgia State Board of Education Professional Textbook Adoption Committee" for the purchase of 70,000 copies of a textbook, "This is Your Georgia," to be published by the Edmondson firm. The second letter, dated August 16, 1966 (Exhibit No. 2), six days after the first, purports to be signed by Hal W. Clements, "Director Division of Instructional Materials and Library Service," "as an official notification of your company's textbooks which were adopted by the State Board of Education * * *." The list attached to that letter showed "`This is Your Georgia' by Mrs. Bernice McCullar" at a net wholesale price f. o. b. Atlanta of $4.80. Facsimile copies of the two letters were included in the indictment as Exhibits 1 and 2.

I.

The indictment charged that Edmondson having been duly sworn testified in the first meeting of creditors concerning said exhibits as follows:

"MR. FULFORD Attorney for Receiver: I ask you to Cross-Examine sic this letter, which is addressed to you, August 10, in the letterhead Georgia State Board of Education, are you familiar with that, please, sir.

"A. Yes, Sir I am.

"Q. Did you receive that letter in the mail please, sir?

"A. Yes, I did.

"Q. I will ask you also, to examine Receiver\'s Exhibit No. 2 and tell us if you received that letter also, in the mail?

"A. Yes, sir, I did.

* * * * * *

"Q. All right, sir, now Mr. Edmondson, I want to ask you please sir, if you don\'t know as a fact, that you had stationery printed in the Plant down there by Claude Dean, to print up a letterhead for the Georgia State Department of Education and you had that written in your office from a typewriter yourself, and that there was never such a letter in existence, from the State of Georgia, or this one either Receiver\'s Exhibit No. 2?

"A. I did not.

* * * * * *

"Q. You tell us that you never instructed anyone, you never yourself signed that letter or instructed anyone to sign it. I want to be sure that you understand.

"A. I understand, and I answered that question.

"Q. Do you say that you had nothing to do with the fabrication of Receiver\'s Exhibit 1, and Receiver\'s Exhibit 2?

"A. Right.

* * * * * *

"Q. A series of questions were put to you by Mr. Fulford, and I will try my best to avoid duplicating them, or creating any interence sic, maybe our motives may be different.

Exhibit No. 1, I want you to hold it again. Was that letter prepared by you or by anyone in your presence at your direction, or whether in you sic, with your direction, with your knowledge?

"A. No.

* * * * * *

"Said defendant, then and there well knew that the foregoing answers were false and contrary to his oath to testify truthfully in said proceedings."

Edmondson moved to quash and dismiss the indictment because it did not charge that any of his answers were material to the matter under inquiry or investigation, and the court overruled that motion. For any of Edmondson's answers to constitute perjury, it is, of course, essential that the answer be material to the inquiry. That much appears from the very definition of the crime,² and is inherent in the federal concept of perjury. As said by the elder Justice Harlan speaking for the Court in Markham v. United States, 1895, 160 U.S. 319, 325, 16 S.Ct. 288, 40 L.Ed. 441:

"In 2 Chitty\'s Criminal Law, 307, the author says: `It is undoubtedly necessary that it should appear on the face of the indictment that the false allegations were material to the matter in issue. But it is not requisite to set forth all the circumstances which render them material; the simple averment that they were so, will suffice.\' In King v. Dowlin, above cited 5 T.R. 311, Lord Kenyon said that it had always been adjudged to be sufficient in an indictment for perjury, to allege generally that the particular question became a material question. So, in Commonwealth v. Pollard, 12 Met. 225, 229, which was a prosecution for perjury, it was said that it must be alleged in the indictment that the matter sworn to was material, or the facts set forth as falsely and corruptly sworn to should be sufficient in themselves to show such materiality."³

In the present case the indictment did not expressly allege that the matter sworn to was material. So the question is whether "the facts set forth as falsely and corruptly sworn to should be sufficient in themselves to show such materiality."⁴

Edmondson's testimony was taken at the first meeting of creditors in the bankruptcy proceeding in the matter of American Southern Publishing Company on November 14, 1966. As of that date the proceeding was a voluntary petition under Chapter 11 of the Bankruptcy Act.⁵ One of the purposes of the first meeting of creditors was to determine facts relevant to "the purposes of an arrangement providing for an extension of time for payment of debts in full." 11 U.S.C. § 707. The existence of a verbal agreement confirmed by letter for the production of 70,000 books at a fixed price was material to that inquiry, and the district court properly so held as a matter of law.

II.

Edmondson moved for a judgment of acquittal when the Government rested. His motion was overruled. He offered no other evidence. It is not disputed that Edmondson's testimony as alleged in the indictment was given under oath. The district court properly held that it was material. The other two essential elements of proof of perjury are: (1) that Edmondson's statements or some of them⁶ were in fact false; and (2) that Edmondson when he made the statements did not believe them to be true.⁷

The objective falsity of the statements made must be proved in conformity with the "two witness rule" peculiar to perjury cases. As Circuit Judge Washington has said for the D. C. Circuit:

"This rule is misnamed. It does not require the testimony of two witnesses. Properly stated it is that `the uncorroborated oath of one witness is not enough to establish, for purposes of conviction of perjury, the falsity of sworn testimony.\' Maragon v. United States, 1950, 87 U.S.App.D.C. 349, 350, 187 F.2d 79, 80, certiorari denied, 1951, 341 U.S. 932, 71 S.Ct. 804, 95 L.Ed. 1361. See Hammer v. United States, 1926, 271 U.S. 620, 46 S.Ct. 603, 70 L.Ed. 1118; Weiler v. United States, 1945, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495."

Young v. United States, 1954, 94 U.S. App.D.C. 54, 212 F.2d 236, 241.

Dr. Nix, the Georgia State Superintendent of Schools, whose purported signature was affixed to the letter dated August 10, 1966, Exhibit 1, testified, without dispute, that it was not his signature and that he did not authorize any other person to affix his signature, nor authorize or direct the preparation of the letter. Harold W. Clements, formerly with the Georgia Department...