Wheeler v. People
| Decision Date | 07 May 1917 |
| Docket Number | 8787. |
| Parties | WHEELER v. PEOPLE. |
| Court | Colorado Supreme Court |
Error to District Court, Boulder County; Neil F. Graham, Judge.
Zell Wheeler was convicted of perjury, and brings error. Affirmed.
Oscar A. Johnson and Guy D. Duncan, both of Boulder, for plaintiff in error.
Fred Farrar, Atty. Gen., and Ralph E. C. Kerwin Asst. Atty. Gen., for the People.
Plaintiff in error was tried and convicted in the District Court of Boulder County of the crime of perjury because of certain testimony he had therefore given in the trial of a criminal case in that court. Judgment was entered on a verdict of guilty, and the case now is here for review on error. Only a few of the numerous assignments of error have been urged.
It appears that one of the talesmen disclosed upon voir dire that he had been summoned as a special venireman, but had not served as a juryman, during the year previous to the trial of the plaintiff in error. He was challenged by the people, the challenge was resisted, and sustained by the court. This is the first assignment argued. It is neither shown nor alleged that the jury, as finally chosen, was not competent and impartial, or that the defendant exhausted his peremptory challenges before the jury was finally secured. Defendant was entitled to a trial by a competent jury, but not by any particular persons, even though those whom he preferred may have been competent. 24 Cyc. 324. As the court is the trier of the juror's qualifications, its decisions should not be disturbed, except upon abuse of a discretion thus exercised. Union Gold Mining Company v. Rocky Mt. Nat. Bank 2 Colo. 566; Collins v. Burns, 16 Colo. 7, 26 P. 145; Babcock v. People, 13 Colo. 515, 22 P. 817.
The case in which the alleged perjured testimony was given was one for assault with intent to murder. In the introduction to the clerk's record of the case it was made to appear that the defendants therein had been arraigned upon the charge of murder. The record itself, however, shows that in the information the defendants were charged with the offense of assault with intent to murder. At the beginning of the trial an attempt was made to correct this error nunc pro tunc which, however, seems to have been abandoned. Shortly afterward, the judge who presided at the trial of the case in which the improper entry occurred made and entered in open court an order correcting the record. The record so amended was introduced in evidence in the case at bar, over the objection and exception of plaintiff in error, on the ground that he had a right to rely upon the record as it stood previous to correction. This position is untenable. The court has inherent power to correct its own record so as to make it speak the truth. Breene v. Booth, 3 Colo.App. 470, 33 P. 1007; Pleyte v. Pleyte, 15 Colo. 44, 24 P. 579. Neither is the record subject to collateral attack. Moreover, the state of the record in a previous case does not concern the plaintiff in error, as perjury may be committed even in a trial the records of which contain error of a character to necessitate a reversal.
Error is assigned because the court refused to direct a verdict of not guilty on the ground that the alleged perjured testimony was immaterial. Perjured testimony to be material need not be directly to the main issue; if it has a tendency to prove any material fact in the chain of evidence, that makes it material. If it be substantially material it is sufficient. 30 Cyc. 1419. The term 'material matter' refers not only to the main fact which is the subject of inquiry, but also to any fact or circumstance which tends to corroborate or strengthen the proof adduced to establish the main fact. Thompson v. People, 26 Colo. 496, 59 P. 51; In re Franklin County, 5 Ohio Dec. 691; People v. Greenwell, 5 Utah 112, 13 P. 89. It was contended by the People that, on the morning of the assault, Wheeler was hired by the defendants and others to drive them from Erie to a point near Hecla Heights, in Boulder County, which he did, and that after they left his wagon they went to a straw stack and immediately began shooting at the Hecla mine property. To show that the defendants were at the place where the alleged offense was committed at the time it was committed was one of the material facts to be established. No other single fact in the chain of facts could well be more material.
It is also urged that there is a fatal variance between the language used in the information in stating the alleged false testimony, and the proof in this behalf adduced at the trial. The information charges that the defendant testified 'in substance and effect' that he did not know whether the defendants then on trial were among those who went with him in his wagon to a point near Hecla Heights on a certain morning in April, 1914. From the transcript of his evidence it is clear that he did substantially so testify. It is clearly manifest that he desired, and attempted, to convey the impression that the defendants might, or might not, have been with him at that time, but that he was...
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