Williams v. People

• Decision Date: 15 May 1899
• Citation: 26 Colo. 272,57 P. 701
• Parties: WILLIAMS v. PEOPLE.
• Court: Colorado Supreme Court

57 P. 701

26 Colo. 272

WILLIAMS v. PEOPLE.

Supreme Court of Colorado

May 15, 1899

Error to district court, El Paso county.

M. F Williams was convicted of perjury, and appeals. Reversed.

W. S. Morris and J. K. Goudy, for plaintiff in error.

Henry McAllister, Jr., David M. Campbell, Atty. Gen., Calvin E Reed, Asst. Atty. Gen., and Dan B. Carey, Asst. Atty. Gen for the People.

CAMPBELL C.J.

The defendant was convicted of the crime of perjury, and he prosecutes this writ of error to set aside the sentence for the following reasons: First, the information, as filed, did not charge a criminal offense, and particularly was this true after the court withdrew from the jury's consideration a portion of the charges therein set out; second, the information was not signed by any officer authorized by the statute to present and sign such pleadings; third, the admission, over defendant's objection, of hearsay testimony offered by the people.

1. Among other essential elements of the crime of perjury, under our statute (Gen. St. 1883, § 787; 1 Mills' Ann. St. § 1270), which, of course, must be set out in an information is that the oath or affirmation was taken or made 'wilfully, corruptly and falsely.' The charging part of the information here is that the defendant 'feloniously, unlawfully, corruptly, and falsely' did testify, etc. Why the statutory language was not used, we do not know. The practice of departing from it, and employing what the pleader conceives to be equivalent terms, cannot be too strongly condemned. Making experiments in matters of such grave importance, though successful in the present case, should not be encouraged. By using the exact language much time of the courts would be saved that otherwise is consumed in unnecessary investigation. It will be observed that 'wilfully' is not in the information, and this omission is said to be fatal. The strict rule requiring a statutory offense to be stated in an information or indictment in the exact language of the statute is not in force in this jurisdiction, yet, when the legislature makes use of certain words descriptive of the offense, these or equivalent expressions must be employed. Unless, therefore, in the place of 'wilfully' the information contains a word or words of the same legal import, this information is fatally defective, because this is one of the words of description of the statutory offense of perjury. It is claimed by the prosecution that the word 'corruptly,' found in the information, and the allegation at the close thereof to the effect that the testimony given by the defendant was false and untrue, as he then and there well knew, are of the same legal import. We do not concur in this view. Neither 'knowingly' nor 'corruptly' is its equivalent, nor do both of them comprehend its full meaning in the statute. 'Wilfully' is a word of stronger meaning than either. 'Corruptly' means viciously or wickedly. One may do a thing knowingly without any improper or evil purpose. 'Wilfully,' as employed in criminal and penal statutes, usually means something more than intentionally or voluntarily. It implies that the act done which it characterizes is designedly done with some bad purpose or intent, without justifiable excuse. In Potter v. U.S., 155 U.S. 438, 446, 15 S.Ct. 144, Mr. Justice Brewer refers with approval to the definition of Chief Justice Shaw found in the case of Com. v. Kneeland, 20 Pick. 206, 220, wherein the learned chief justice said: 'The word 'wilfully,' in the ordinary sense in which it is used in statutes, means, not merely 'voluntarily,' but with a bad purpose.' Mr. Bishop, in his work on Criminal Law (volume 1, § 428), says: 'It is more frequently understood * * * as signifying an evil intent without justifiable excuse.' See, also, Felton v. U.S., 96 U.S. 699, 702; U.S. v. Edwards, 43 F. 67; State v. Preston, 34 Wis. 675; U.S. v. Three Railroad Cars, 1 Abb. 196, Fed. Cas. No. 16,513. But the word 'feloniously,' which is found in this information, supplies the place of the omitted word 'wilfully.' 'Feloniously' no longer possesses the distinctive or restricted meaning it had at the common law. Under our constitution (article 18, § 4), a felony is any criminal offense punishable by death or imprisonment in the penitentiary, and an act that is done feloniously is one that is done with a more or less deliberate purpose or intent to commit a crime of the nature of a felony. In Allen v. Inhabitants, 3 Wils. 318, it is said, among other things: 'Here he has alleged in his declaration, and proved at the trial, to the satisfaction of the jury, that the same was committed and done feloniously, and that fact which was committed feloniously was certainly done wilfully, unlawfully, and maliciously, for doing an act feloniously, is doing it malo animo, viz. with malice. Therefore Sergeant Burland concluded that the declaration was perfectly right, and of that opinion was the whole court, and gave judgment for the plaintiff.' In Weinzorpflin v. State, 7 Blackf. 186, 195, it is said: 'The particular departure from the language of the statute urged against the indictment is the omission of the word 'unlawfully.' * * * 'Feloniously' is substituted for it in this indictment, and is not only tantamount to it, but is a word of far more extensive and criminal meaning. The act complained of could not have been feloniously and not unlawfully done.' Webster's definition of 'felonious' is: 'Having the quality of felony; malignant; malicious; villainous; traitorous; perfidious; in a legal sense, done with intent to commit a crime.' In the Century Dictionary 'feloniously' is thus defined: 'In a felonious manner; wickedly; with deliberate intent to commit a wrongful act, the act being in law such as constitutes a crime of the class termed felonies.' See, also, State v. Bush, 47 Kan. 201, 27 P. 834; Moore, Cr. Law, § 791, and notes; State v. Pennington, 3 Head, 119. From these and other authorities that might be cited it seems clear that 'feloniously' is, to say the least equivalent in meaning to 'wilfully,' as used in this statute. The strongest meaning claimed for the latter is intentionally or designedly, and with a deliberate intent to do a wrongful act without justification. 'Feloniously' certainly includes all of these elements, and the perjury charged could not have been feloniously and not willfully committed. The additional point under this head is that, when the court withdrew from the jury all questions save the charge concerning the date of a certain bill of sale, there was nothing left of the information averring that the testimony about it was given either willfully, corruptly, or falsely. The plain grammatical construction of the language used is against such position, and we do not deem the point worthy of further mention.

2. It appears from the record in this case that the attorney of this judicial district (Henry M....