United States v. Pettus

• Decision Date: 27 November 1897
• Docket Number: 2,052.
• Citation: 84 F. 791
• Parties: UNITED STATES v. PETTUS.
• Court: U.S. District Court — Western District of Tennessee

84 F. 791

UNITED STATES v. PETTUS.

No. 2,052.

United States Circuit Court, W.D. Tennessee.

November 27, 1897

Chas B. Simonton, U.S. Atty., and Thos. M. Scruggs, Asst. U.S Atty.

Geo. B Peters, C. P. Roberts, G. T. Fitzhugh, and T. H. Jackson, for defendant.

HAMMOND J.

The suggestion of the district attorney that the vice of the argument in favor of this demurrer is in treating this indictment as if it were one charging frauds committed at the election, whereas it is only an indictment for perjury committed in giving testimony in a contested election case is quite true, as to several of the grounds of demurrer, and much of the argument. But it is not true as to all of them. It applies to the third, fourth, seventh, and eleventh grounds of the demurrer, and they are therefore overruled.

The corner stone of this indictment is the pendency of an election contest for a seat in congress before the house of representatives at Washington; and we need not go behind that, into any inquiries as to the election itself. The charge here is that perjuries were committed by the defendant in giving his testimony in that proceeding; and whether considered in relation to the jurisdiction of the court, or the sufficiency of the indictment, all that need be averred is that there was a contest pending, and that the alleged false swearing was done in that proceeding, which is sufficiently averred in this indictment.

The tenth ground of the demurrer is overruled, because the Revised Statutes of the United States (section 5392) omits the word 'knowingly' and only uses the word 'willfully,' which, presumably, was considered as including the other. At all events, the omission of the word was, no doubt, intended to settle the aggravated controversy in the books about distinctions between the two words, 'knowingly' and 'willfully'; and now, under the statute, only the word 'willfully' need be used.

The twelfth ground of the demurrer is also overruled, because it is not conceived to be absolutely necessary that the proceeding in which the alleged perjury was committed shall be ended before an indictment can be had. It is true that one of the authorities cited by defendant's counsel says that it is customary to withhold the indictment until it has been ended, but it is not decided that an indictment will not lie until the original proceeding has been concluded.

But the first, second, fifth, sixth, eighth, and ninth grounds of the demurrer are well taken, and will be sustained. They may all conveniently be treated together.

There are no pleadings known to the criminal law which require greater precision, certainty, and particularity than those relating to the crime of perjury. 2 Russ, crimes, p. 631. To such an extent had this requirement of particularity gone that at one time it was almost impossible to draw an indictment for perjury which would stand the scrutiny of courts in respect of its precision; and therefore statutes have been passed, both in England and the American states, for the purpose of eliminating all that which was considered unnecessarily exacting in this regard. Yet there remains, in the substantial averments of an indictment for perjury, a requirement for accuracy, certainty, and particularity that cannot be avoided by even the most liberal of these statutes. Our own statute (Rev. St. Sec. 5392 et seq.) is one of the simplest and most liberal of modern statutes relating to the offense; but it will be found, I think, that it has preserved to the fullest extent the essential elements of the old crime, and the forms of indictment under it must still conform to the demands of the offense as defined in this statute. We have another statute which enacts that no indictment shall be deemed insufficient because of any defect or imperfection in matter of form, but all matters of substance are still required. Rev. St. 1025.

It is entirely true that perjury may be predicated of a false statement that has any tendency to prove or disprove the matter in issue, and even of that which only circumstantially tends to prove or disprove it, as where a party willfully misstated the color of a man's coat, or willfully misstated the credit of another witness. 2 Russ.Crimes, 642. And therefore the question of materiality often depends almost entirely upon the competency, relevancy, or admissibility of the circumstance to which the false oath related; and, however trivial the circumstance may seem, yet, if it be material, the indictment will lie. But whether the indictment be founded on an oath like that, or others of a graver import, in perjury, as in all other offenses, a fundamental requirement is that the defendant shall, from the allegations of the indictment, understand precisely what he is called upon to defend. This is a constitutional requirement with us, which not even a statute can evade or avoid. Const. Amend. art. 6.

In an indictment for perjury committed in an insolvent debtor's court, it was alleged that the defendant swore, in substance, that his schedule contained a full, true and perfect account of all debts owing to him at that time, and this is all there was in the indictment; but Lord Tenterden, after consultation with all the other judges, held that it was insufficient, because it was quite impossible that the defendant could know, from allegations so vague and indistinct, what was to be proved against him, and this allegation conveyed no information whatever of the particular charges against which the defendant ought to be prepared to defend himself. Rex v. Hepper, Ryan & M. 210. And, to show what is meant by this, it will be found in Whart, Prec. Ind., that such an indictment should go on, and aver, not only that the schedule did not contain a full and true and perfect account of all debts owing to him at the time, but should have distinctly averred those which had been left out; as, in the form given, where the charge was that the schedules did not contain a true inventory of his estate as sworn to, it properly averred in the indictment that he was interested in and owned, individually, and as a partner, the following estate, to wit (here enumerating the items of property which had been omitted from the schedules). Whart. Prec. Ind. 584. That is precisely the matter with this indictment. It does not, certainly, in the first count, contain the least information, by any averment, of any particular fraud, trick, or other unfairness at the election which would notify the defendant of the untruthfulness of his oath in respect of which he was called to defend it. If it be conceded that the issues between the contestant and the contestee, pending before the house of representatives, were of the broadest character, so that they would include and make material the allegation of falsity contained in this court, the count does not point out with certainty and particularity any fact or circumstance which is to be relied upon by the government to show that the defendant's oath was false. You do not have to put the evidence of the fact in the indictment, undoubtedly; but you do have to point out the fact or the conduct or the act to which the evidence will relate, with such specific averment as will enable the defendant to know what he has to defend. This count avers the false oath to have been that the defendant was present during the whole time the vote was proceeding and while the ballots were being counted, and that there was not any fraud or unfairness practiced by any of the election officers at the said poll, and that there was not any fraud, trick, or other unfairness at the said election, that he knew of, and none of his own knowledge, and that, to his knowledge, the votes, as cast, were fairly and honestly counted. And then comes this averment of negation:

'Whereas, it was not and is not true, and at the time of so swearing the said Henry E. Pettus did not believe it to be true, that there was not any fraud or unfairness practiced by any of the election officers at the said poll, and that there was not any fraud, trick or other unfairness at the said election, and that he knew of none of his own knowledge, and that, to his knowledge, the votes, as cast, were fairly and honestly counted.'

This amounts properly to an allegation of the falsity of the oath but that is not enough. The indictment should have gone on, and pointed out to the defendant, with sufficient certainty to notify him what he was called upon to defend, the particular fraud, trick, or unfairness that would be proved within his knowledge to show that he had sworn falsely, and, as to the second averment, the particular unfairness and dishonesty in counting the vote. There is not one word or syllable in this indictment to give him any such information, and it is not possible for that count to be sustained under the most liberal...