West v. United States

• Citation: 258 F. 413
• Decision Date: 08 April 1919
• Docket Number: 3210.
• Parties: WEST v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

258 F. 413

WEST v. UNITED STATES.

No. 3210.

United States Court of Appeals, Sixth Circuit.

April 8, 1919

Robert J. Shank, of Hamilton, Ohio, for plaintiff in error.

James R. Clark, Asst. U.S. Atty., of Cincinnati, Ohio.

Before KNAPPEN and DENISON, Circuit Judges, and EVANS, District Judge.

KNAPPEN Circuit Judge.

On September 14, 1917, the Niles-Bement-Pond Company, which was interested in the Niles Tool Works Company, of Hamilton Ohio, filed bill in equity in the District Court for the Southern District of Ohio, against an Iron Molders' Union local and a large number of other defendants, including plaintiff in error herein, asking injunction (amongst other things) against threatening, intimidating, interfering with assaulting, and applying abusive language to the tool company's workmen and others wishing to work for it, and from congregating in the streets of Hamilton, Ohio; a strike affecting the employes of the tool company, being then in progress. The tool company was made a defendant. On the hearing of the application for preliminary injunction, plaintiff in error testified in open court that on the 10th day of September, 1917, he talked with a workman named Wise in front of the house of one Bruning, in Hamilton, telling Wise to join the union, that 'your brothers are in there; why don't you come over and be right, too,' but denying that he said anything would happen to Wise if he did not do so, or that he struck Wise or any one else.

An order for injunction made by the District Court was reversed by this court, with direction to dismiss the bill for lack of diversity of citizenship, resulting from a necessary alignment of the tool company as coplaintiff with the Niles-Bement-Pond Company, due to their mutual interest in the injunction suit. Iron Molders' Union Local No. 68 et al. v. Niles-Bement-Pond Co. (No. 3146, decided by this court Nov. 6, 1918) 258 F. 408, . . . C.C.A. . . . . Meanwhile, plaintiff in error was indicted in the court below for perjury in so testifying on the application for injunction. This writ is brought to review a conviction thereunder.

1. The testimony on the trial of the perjury charge showed that the oath taken by plaintiff in error on the hearing of the injunction application (over which Judge Sater presided) was actually administered in open court by the deputy clerk of that court. The indictment averred that the oath was taken before--

'his honor, John E. Sater, a legally appointed, qualified and acting United States Judge for the Southern District of Ohio, said court being a competent tribunal and said John E. Sater being a competent officer and person before whom such oath is authorized by the laws of the United States to be administered.'

The statute (U.S. Comp. St. 1916, Sec. 1687) provides that in an indictment for perjury:

'It shall be sufficient to set forth the substance of the offense charged upon the defendant, and by what court, and before whom the oath was taken, averring such court or person to have competent authority to administer the same, * * * and without setting forth the commission or authority of the court or person before whom the perjury was committed.'

The indictment was sufficient in form, and the deputy clerk had full authority to administer the oath in the court's presence. Comp. St. 1916, Sec. 1337. It was not necessary to allege the name of the clerk who administered the oath or that of the judge who took it. United States v. Walsh (C.C.) 22 F. 644, 646; United States v.

Howard (D.C.) 132 F. 325, 335, 341. The act of the clerk, in the presence of the court, was the act of the court. United States v. Howard, supra, 132 Fed.at page 341. Apparently the word 'and,' italicized above, means 'or.' United States v. Walsh, supra. If there is merit in the objection that the evidence of the administering of the oath was insufficient, it can only be because of a fatal variance between the indictment and the proof. There was no variance whatever, unless the indictment must be construed as alleging that Judge Sater personally administered the oath, as distinguished from being the judge, 'before' whom the oath was taken or 'before whom' it was 'authorized * * * to be administered.'

It is not entirely clear that the indictment requires such construction. But, assuming that the intention was to charge that Judge Sater personally administered the oath, we think that, upon the record in this case, the variance was not fatal. Were there reason to believe that plaintiff in error was misled to his prejudice, in preparation for defense or otherwise, by an allegation, express or implied, however unnecessarily made, that Judge Sater personally administered the oath, the case would be different; but the record removes all reasonable possibility of misleading or surprise, for not only was there no suggestion of that nature on the trial, but the testimony that the clerk administered the oath was received without objection and was uncontroverted, and plaintiff in error expressly admitted, as a witness, that he gave on the hearing of the injunction application the precise testimony introduced by the government through the stenographer who took it. The frame of the indictment is such as to preclude all possibility of a second prosecution for the same offense.

Section 1691 of the Compiled Statutes provides that--

'No indictment * * * shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.'

And section 269 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1163 (Comp. St. Sec. 1246)), as amended February 26, 1919 (40 Stat. 1181, c. 48), declares that--

'On the hearing of any * * * writ of error * * * in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.'

While neither of these sections attempts to sanction a violation of substantial rights, or to disregard prejudice (Markham v. United States, 160 U.S. 319, 16 Sup.Ct. 288, 40 L.Ed. 441), yet an immaterial and nonprejudicial variance between allegation and proof is not cause for reversal. See Matthews v. United States, 161 U.S. 500, 16 Sup.Ct. 640, 40 L.Ed. 786, where a variance of one day in the date on which the testimony was alleged to have been given in open court trial was held immaterial; Hogue v. United States, 192 F. 918, 114 C.C.A. 11, where an obviously clerical mistake in using the name 'clerk,' instead of 'court,' was held not vital, the court failing 'to find by such mistake that plaintiff in error was in any wise misled or prejudiced'; Daniels v. United States, 196 F. 459, 464, 465, 116 C.C.A. 233, where we held that evidence that bankrupt may have owed the payee $200 was not a material variance from the charge in the indictment that the debt owed did not exceed $50, the exact amount not being material; and see United States v. Howard, supra, where it was held (132 F. 334, 335) under what is now section 1691, supra, that leaving blank the day of the month on which the perjury was alleged to have been committed did not vitiate the indictment.

In our opinion, the objection of variance is without substance.

2. On the trial of the perjury charge below there were introduced the Niles-Bement-Pond Company's petition (or bill) for injunction; the motion to dismiss made by defendants other than the tool works, on the ground, among others, of lack of diversity of citizenship; the plea of abatement of the defendants other than the tool works, alleging lack of jurisdiction by reason of collusion between the Niles-Bement-Pond Company and the tool works to give such jurisdiction; and the order allowing the preliminary injunction from which the appeal was taken to this court. The motion to dismiss was denied before the hearing of the application for temporary injunction was taken up. The plea in abatement does not appear to have been formally passed upon.

Plaintiff in error contends that the record showed no jurisdiction in the court below over the hearing of the injunction application, that plaintiff in error thus could not have been guilty of perjury, and that his motion to dismiss should have been granted. The decision of this court, since the conviction below, directing the dismissal of the bill for lack of jurisdiction is invoked.

It is the well-established general rule that perjury cannot be predicated of a false oath in a proceeding before a court which had no jurisdiction to inquire into the matter which was the subject of that proceeding, ^[1] as, for example, where the proceeding in which the oath was taken was one wholly unauthorized by law (State v. Gates, 107 N.C. 832, 12 S.E. 319), or where it did not appear that there was pending any writ or entry forming the basis for the testimony (State v. Hanson, 39 Me. 337), or where the special tribunal before whom the testimony was taken was illegally appointed and without authority to act (Com. v. Hillenbrand, 96 Ky. 407, 29 S.W. 287), or where testimony was taken under a wrongly assumed authority to try a case on its merits rather than merely to take the examination of a party (Hamm v. Wickline, 26 Ohio St. 81).

To this general rule there are a number of limitations, as, for example, where a court has jurisdiction of the subject-matter and of the parties, and the testimony given is material to the inquiry then before the court, false swearing is perjury although the proceedings may be so irregular or erroneous as to require reversal on appeal (State v. Walton, 53 Or.at page 567, 99 P....