Wilde v. State

Citation123 P. 85,20 Wyo. 302
Decision Date25 April 1912
Docket Number675
PartiesWILDE v. STATE
CourtUnited States State Supreme Court of Wyoming

ERROR to the District Court, Laramie County; HON. CHARLES E CARPENTER, Judge.

Anthony Wilde was charged with and convicted of the crime of perjury the charge of perjury being based upon alleged false testimony given upon a trial of the accused for an alleged felonious assault upon one Bernice Wells with an intent to commit rape. The other material facts are stated in the opinion.

Reversed.

William B. Ross, for plaintiff in error.

The same points were made in the brief as in the case of Fletcher v. State, it being contended that the legal propositions referred to in the Fletcher case were applicable to this case. In addition thereto counsel for plaintiff in error contended that error was committed in excluding the testimony of one Crawford with reference to the sale of certain ice tools to Fletcher and Wilde on December 19th, and the testimony of one Koch to prove the payment of a lumber bill by one Bright, the latter having testified that he had bought lumber of Koch on a certain date. Also that the testimony of other witnesses was improperly excluded, and that of certain witnesses for the prosecution improperly admitted. It was also contended that the court improperly refused to instruct the jury that the information failed to charge the crime of perjury under the laws of this state, and that a verdict of not guilty should be returned.

The following legal propositions were also urged: A litigant's position on the trial cannot be shifted on appeal. (Elliott's App. Proc. secs. 489-498; 2 Cyc 670-676; Blanchard &c. Co. v. Colvin, (Ind.) 69 N.E. 1032; Callaway v. Mellett, (Ind.) 44 N.E. 198; Sanders v. Stimson, (Wash.) 75 P. 974; Descher v. R. Co., (Mo.) 98 S.W. 737; Berry v. People, (Ill.) 66 N.E. 1072; R. Co. v. Wood, (Ind.) 14 N.E. 572; In re Atwood, 38 N.Y.S. 338; Chicago v. Wildman, (Ill.) 88 N.E. 559; Donaldson v. State, (Ind.) 78 N.E. 182; Earl Fruit Co. v. Thurston C. & W. Co., (Minn.) 62 N.W. 439.) The record and judgment in the former case wherein the alleged perjury was alleged to have been committed and the evidence of the alleged false testimony were admissible on this perjury trial only as matter of inducement to show the proceeding in which the alleged perjury was committed, the regularity of such proceeding, and the jurisdiction of the court; it could not be considered as proof of the perjury. The failure to show that Wilde was at the place of the alleged assault on December 26th or 27th was a fatal defect of proof in the perjury case. It is necessary on a trial for perjury to show by satisfactory evidence that the alleged false testimony was material, and by a reasonable doubt that it was false. (30 Cyc., 1446, 1417-1418, 1421; 2 Whart. Cr. Law, sec. 1325; Dickerson v. State, (Wyo.) 111 P. 857; Reavis v. State, 6 Wyo. 240; State v. J. B. 1 Tyler, 269; State v. Lawson, (N. C.) 4 S.E. 134; State v. Vandemark, (Conn.) 58 A. 715; Ex parte Meyer, (Cal.) 40 P. 953; Liggett v. State, (Tex.) 83 S.W. 807. Citing also several cases cited in the brief in the case of Fletcher v. State.)

D. A. Preston, Attorney General, and Charles L. Rigdon, County and Prosecuting Attorney of Laramie County, for the state.

In addition to the points made in the brief for the state in the case of Fletcher v. State it was contended that no error was committed in respect to any of the matters objected to by counsel for plaintiff in error.

SCOTT, JUSTICE. BEARD, C. J., and POTTER, J., concur.

OPINION

SCOTT, JUSTICE.

The plaintiff in error (defendant below) was charged, tried, found guilty and judgment pronounced against him for the crime of perjury. He brings the case here on error.

1. The facts in this case with a few exceptions, and the assignments of error are essentially the same as those in Fletcher v. State, No. 674, 123 P. 80, this day decided. The information charged that the evidence upon which the perjury is assigned was given upon the trial of State v. Wilde on December 21, 1908, in the District Court of Laramie County. In that case defendant was charged with felonious assault upon one Bernice Wells near Hartville, Laramie County, Wyoming. Upon the trial of that case the State fixed the time of the assault as the afternoon of the 26th of December, 1907, and in her cottage. The defense in that case was an alibi. The information here charges that "on an issue within the jurisdiction of said court duly joined and trial before a jury" * * * "it then and there became and was a question material to said issue whether the said Anthony Wilde with a crew or gang of men began and commenced putting up ice in the ice house of Chris Fletcher and Anthony Wilde on the 23rd day of December, 1907, and whether the said Anthony Wilde was present when said ice was being put up at said ice house on the 25th day of December, 1907, and whether the said Anthony Wilde was injured at said place on said 25th day of December, 1907, and to this the said Anthony Wilde did then and there feloniously, knowingly, wilfully, corruptly and falsely, upon his oath as aforesaid, swear, testify and say in substance and effect, that he (meaning the said Anthony Wilde) with a crew of men began putting up ice on the 23rd day of December, 1907, at said ice house, and that he (meaning the said Anthony Wilde) was present where said ice was being put up at said ice house on said 25th day of December, 1907; whereas in truth and in fact" &c. It will be observed that no evidence given upon that trial showing the materiality of the alleged false testimony is set out in the information, but it is alleged that it was material to an issue there duly joined and upon trial before a jury. In such case the materiality became and was a matter of proof. (Dickerson v. State, 18 Wyo. 440, 463, 111 P. 857, 116 P. 448.)

2. It was the theory of the prosecution that the work of putting up ice did not commence until December 30th. If that theory is correct then Wilde was not injured at the ice house on December 25th, and was not thereby incapacitated from work or riding horseback on December 26th, 1907. On the other hand it was contended by the defense that the work of putting up the ice commenced on December 23rd and the injury was received on December 25th.

The witness Deercorn testified on behalf of the defense that a few days before Christmas he hired a horse to Wilde & Fletcher to be used by them in putting up ice. He was inquired of as to what if anything he said to Wilde at that time. An objection to this evidence was substained, whereupon the following offer was made by the defendant, to-wit: "The defense offers to prove by this witness that at the time when they hired this horse in question, as testified to as having been hired by Fletcher & Wilde, that he notified them that he must have the horse back again by Christmas that year." The state objected to this evidence on the ground that it was incompetent, irrelevant and a self serving statement. The objection was sustained and exception was reserved. The witness also testified that he was a partner of one Testoline in the business of keeping a livery stable at Hartville. Upon inquiry by the State as to whether he reported to Testoline every day the business of that day he replied that he so reported sometimes every day and sometimes once in two or three days, and that Testoline kept an account of what he reported to him and that every time that Wilde and Fletcher got a horse he reported it to Testoline and that the latter put it down in his book. That he knew Testoline's handwriting and upon being handed a book said that it looked like his handwriting. The following questions were then asked and answers given, viz.:

Q. The 29th of December, isn't it (indicating item in book)?

A. Yes.

Q. He has got a horse there charged to Fletcher and Wilde, hasn't he, on the 29th?

A. If the book says so. I never had it in my head.

Q. Look the book through and see if that is the first time you find any entry with regard to a horse in that book? By General Donzelman (attorney for the defendant): "I object to this kind of cross-examination. It is not proper cross-examination. By the Court: "The objection is overruled." To this ruling the defendant reserved an exception.

Q. When you come to the first date when a horse was charged to Fletcher and Wilde, call my attention to it. This is the first item (indicating item in book) when any horse is charged to Fletcher and Wilde?

A. Yes.

Q. What date is that according to the book?

A. The 29th.

Q. Of what month?

A. December.

Q. 1907?

A. Yes.

Q. All right, find the next one that is charged there what is this item?

A. The 30th."

We have given a part only of the cross-examination as to the contents of this book. Upon being interrogated by the defendant the witness testified that he didn't know whether the entries in the book were true or not and that it was not a partnership book. The defendant moved to strike out all the evidence of the witness relating to the data in the book. The motion was denied, to which the defendant excepted. The contents of the book were not admissible in evidence upon the showing here made. The time of the entries may or may not have corresponded with the times of the occurrences referred to therein, and no evidence was offered or introduced showing that such entries were correctly made, or, if so, that the witness was bound thereby. It was highly improper to introduce the contents of this book in the manner resorted to by the State, for in any view, upon the evidence adduced, its contents would be incompetent, for it would have no tendency to contradict or impeach the witness. If permitted it would require the weight to be given to the evidence of...

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