Commonwealth v. Bradley

17 Pa. D. & C. 571, 1932 Pa. Dist. & Cnty. Dec. LEXIS 168

• Court: Dauphin County Court of Quarter Sessions
• Decided: December 14, 1932
• Docket: No. 356
• Status: Published

Opinions

Fox, J.,

— We have before us a motion for a new trial based upon the following reasons:

“1. The verdict is against the law.

“2. The verdict is against the evidence.

“3. The verdict is against the weight of the evidence.

“4. The Commonwealth failed to prove the falsity of the matter on which the perjury was assigned by the testimony of a credible witness and corroborative evidence aliunde which tended to show the perjury independent of any declaration or admission of the defendant and the person to be corroborated.

“5. The Commonwealth failed to prove any facts tending to show the falsity of the matter on which the perjury was assigned in corroboration of the testimony of a credible witness.”

In the trial of the case, it was admitted by the defendant that on April 13, 1932, he made an affidavit before Alderman Charters, of the City of Harrisburg, viz., that he had purchased intoxicating liquor from one Russel Alexander in the City of Harrisburg, and that, on April 19th, at the hearing before the said alderman of the charge of selling intoxicating liquor against the said Alexander, he testified he purchased such liquor from the said Alexander. The Commonwealth produced evidence that the defendant, on May 26, 1932, made a statement to Solomon Hurwitz, Esq., in the jail of Dauphin County, the defendant being then in jail on a charge other than the one in the instant case; the latter at that time had not been made. The statement was at once reduced to writing, signed and sworn to by the said defendant before a notary public, the substance of which writing was that the said affidavit made before the alderman in the information and the testimony given by this defendant at the hearing of the said Alexander were not true but were false. The written statement was admitted in evidence. Riley Shope, the notary public, was also called and testified that he, as notary public, took the affidavit as shown on the said statement. Russel Alexander, the only direct witness for the Commonwealth, testified that he has known Bradley for some time, but had not spoken to him for two years, and that he did not sell any intoxicating liquor to him on April 13, 1932, nor at any other time. On account of being confined to the hospital, the alderman did not appear.

In his defense, Bradley testified that on the evening of April 13,1932, he went to the residence of the said Alexander, who opened the door and sold him intoxieating liquor, and that what he swore to in the information and at the hearing, to wit, that said Alexander had sold intoxicating liquor to him, is the truth and that which he told Mr. Hurwitz and reduced to writing, to wit, Commonwealth’s exhibit No. 1, is not true.

The Commonwealth contends that the evidence of Russel Alexander, viz., that he never sold any intoxicating liquor to the defendant Bradley, is evidence of the perjury with which the defendant is charged, and the corroborating evidence of the said Hurwitz and Shope and the written statement, Commonwealth’s exhibit No. 1, signed and sworn to by the defendant, are sufficient to sustain the conviction. We have the direct evidence of one witness, Alexander, of the alleged perjury and one contradictory statement relating to the same by the defendant. We regard what was said to Hurwitz, the writing and the affidavit before Shope as one, all having been contained in Commonwealth’s exhibit No. 1, which is the testimony: 2 Wigmore on Evidence, Sec. 1331; Lessee of McCally v. Pranldin, 2 Yeates 340.

The question before us is, is the evidence sufficient to sustain a conviction of the defendant of the charge of perjury?

We find no case in our state, nor has our attention been called to any, directly deciding the precise question before us.

Perjury is a crime of such a serious nature and bearing such serious consequences that at common law a conviction could not be had on the evidence of one witness alone, and for centuries the law required two witnesses to prove it; later the rule was relaxed so that a conviction might be sustained on the testimony of one witness and the proof by other witnesses of any material circumstance in confirmation of the witness who gives the direct testimony of the perjury. Such is the rule in Pennsylvania. The general rule in our country and England now is that “there must be either two witnesses to prove such falsity or one witness with material and independently established corroborative facts:” 2 Wharton on Criminal Law (12th ed.), page 1838, Sec. 1585.

In the case of Williams v. Com., 91 Pa. 493, 501, the Supreme Court said:

“It is a general rule that the testimony of a single witness to the falsity of the matter on which the perjury is assigned is insufficient to convict on a charge of perjury. Two witnesses are not essentially requisite, for if any material circumstance be proved by other witnesses in confirmation of the witness who gives the direct testimony of perjury, it may turn the scale and warrant a conviction.”

The same rule is reaffirmed in the cases of Com. v. Rogo, 71 Pa. Superior Ct. 109, 115; Com. v. De Cost, 35 Pa. Superior Ct. 88; Com. v. Bobanic, 62 Pa. Superior Ct. 40.

Where the corroborating evidence consists of a statement by the defendant contradictory of his oath, two different views seem to be taken as to its sufficiency.

In 1 Greenleaf on Evidence, Sec. 259, it is said:

“If the evidence adduced in proof of the crime of perjury consists of two opposing statements of the prisoner, and nothing more, he cannot be convicted. For if one only was delivered under oath, it must be presumed, from the solemnity of the sanction, that that declaration was the truth, and the other an error or a falsehood; though the latter, being inconsistent with what he has sworn, may form important evidence, with other circumstances, against him. And if both the contradictory statements were delivered under oath, there is still nothing to show which of them is false, where no other evidence of the falsity is given.”

In Schwartz v. Com., 68 Va. 1025, 21 Am. Rep. 365, the court in a well-considered opinion, at pages 1030-1032, said:

“If the second oath, deliberately taken, is insufficient to overcome the first, why should a mere admission have that effect? When a witness deliberately asserts a fact to be true as within his knowledge, and in a few minutes thereafter deliberately and intentionally asserts the very reverse as within his knowledge, all ground of innocent mistake being excluded, he thereby indirectly but unequivocally affirms the falsity of the first. Do we discredit the first any sooner, or believe the second the more readily, because the witness tells us that one was intentionally false and the other true? We believe neither of them. We place no confidence in either statement, from an absolute inability to determine which is true, or whether either is true. If the witness is afterwards put on his trial for perjury, our difficulties are in nowise removed. We are still in doubt which is the true and which is the false. . . .

“When we speak of corroborative evidence, we do not mean such as emanates from the mouth of the prisoner himself, but evidence aliunde, evidence which tends to show the perjury independently of his own declarations. The whole law in reference to perjury is based upon the idea that when there is witness against witness, oath against oath, there must be other evidence to satisfy the mind.”

The same doctrine is held in Reg. v. Boulter, 3 Car. & K. 236, and in State v. Buckley, 18 Ore. 228, 22 Pac. 838.

In the ease of State v. Hunter, 181 Mo. 316, 80 S. W. 955, in quite a full discussion upon the subject, the court, at pages 335-337, said:

“ ‘The additional evidence need not be such as, standing by itself, would justify a conviction in a case where the testimony of a single witness would suffice for that purpose; but it must be at least strongly corroborative of the testimony of the accusing witness’ [State v. Heed, 57 Mo. 252; State v. Hill, 91 Mo. 423; State v. Blize, 111 Mo. 464].”

“The equilibrium [speaking of the result after admission of direct testimony of the prosecution’s one witness, and denial by the accused] must be destroyed by material and independent circumstances, before the party can be convicted.

“What is meant by corroborative evidence is said to be aliunde evidence which tends to show the perjury independent of the prisoner’s declarations or admissions [State v. Buckley, 18 Ore. 228; Gabrielsky v. State, 13 Tex. App. 428; 2 Wharton’s Criminal Law (10th ed.), Sec. 1319].” See, also, Schwartz v. Com., 68 Va. 1025, 21 Am. Rep. 365.

In Peterson v. State, 74 Ala. 34, the court, inter alia, said:

“There can be no conviction of the crime of perjury on the unaided testimony of a single witness. This would be oath against oath. There must be two witnesses, or one with strong corroboration. . . . This corroboration, to be sufficient, must be of the very act — the corpus delicti — the giving of material testimony which is wilfully and corruptly false. And when, as in this case, it is alleged the accused has made two sworn statements which are in irreconcilable conflict, if there is no strong corroboration of one of the versions, how can it be affirmed the other is false? Previously contradictory statements, made with or without oath, may be very important evidence, in connection with other circumstances, against the accused; but, no matter by how many witnesses the different and conflicting statements may be proved, this is not corroborative proof of the corpus delicti.”

In the case of State v. Buckley, 18 Ore. 228, 233, 22 Pac. 838, the court said:

“There must be at least one witness and corroborating circumstances; that is, one witness testifying to the main fact in issue, and then another witness, or corroborating circumstances, tending to prove the main fact. What is meant by corroborating evidence in this connection is evidence aliunde — evidence which tends to show the perjury independent of the prisoner’s declarations.”

In Gildersleeve v. Atkinson, 6 N. M. 250, 260, the court, in speaking of corroborative evidence, said:

“Such evidence as tends, in some degree, of its own strength and independently, to support some essential allegation or issue raised by the pleadings testified to by the witness whose evidence is sought to be corroborated, which allegation or issue, if unsupported, would be fatal to the case; and such corroborating evidence must of itself,, without the aid of any other evidence, exhibit its corroborative character by pointing with reasonable certainty to the allegation or issue which it supports.”

In the case of State v. Guild, 10 N. J. L. 163, 187, it is said: “To corroborate is to strengthen, to confirm by additional security, to add strength.1”

The contrary view is contained in the following:

“The rule is well established, without a decision to the contrary, that proof that one accused of perjury made statements which conflict with the statement upon which the perjury is founded, is sufficient corroboration of a single witness so as to warrant a conviction. And this seems to be true, whether the contradictory statements proved were under oath or not or whether they were spoken or were contained in a writing:” R. C. L. Perm. Supp. 5035, Sec. 17.

The following cases are cited as authority for the foregoing rule: 1 Wharton’s Criminal Evidence (10th ed.), page 791; Dodge v. State, 24 N. J. L. 455; Powell v. State, 5 Ala. App. 150, 59 So. 328; Brooks v. State, 91 Ark. 505, 121 S. W. 740; Davis v. State, 7 Ga. App. 680, 67 S. E. 839; Hereford v. People, 197 Ill. 222, 64 N. E. 312; State v. Swafford, 98 Iowa 362, 67 N. W. 284; Com. v. Parker, 2 Cush (Mass.) 212; Hemphill v. State, 71 Miss. 877, 16 So. 261; State v. Blize, 111 Mo. 464, 20 S. W. 210; State v. Molier, 12 N. C. 263; Rex. v. Mayhew, 6 Car. & P. 315.

We have examined each of the cases cited and we are of the opinion that some sustain the rule and that others do not.

In Wharton’s Criminal Evidence, supra, it is said: “The testimony of a witness to falsity is sufficiently sustained by a written admission of the defendant.”

In the ease of Dodge v. State, supra, it is said that proof that the defendant has made statements verbally or in writing, whether under oath or not, conflicting with the statement under oath upon which the indictment is founded is corroborating evidence on the indictment for perjury, and such evidence in connection with the evidence of other witnesses is sufficient to warrant a conviction. It will be noted that the language used is in the plural, viz., statements. In Powell v. State, supra, it was likewise held that incriminating statements made by the defendant in connection with the positive testimony of the direct witness were entirely sufficient to sustain a conviction. Again the use of the word is in the plural, statements. In Davis v. State, supra, it was held that the testimony of the direct witness corroborated by the confession of the defendant would have been sufficient to authorize the jury to convict. There was, however, in the case evidence by several other corroborating witnesses. In Brooks v. State, supra, it was held that the direct evidence was fully corroborated by the evidence of two corroborating witnesses as to the falsity of the testimony of the defendant. In Com. v. Parker, supra, it was held that direct testimony as to the perjury is corroborated by writings of the defendant showing the falsity of his testimony. In the case of Hemphill v. State, supra, it was held that where a defendant swore to a fact before the grand jury, and contradicted that statement under oath on the trial of him who was indicted as the result of his testimony before the grand jury, and the one so indicted testified that the statement before the grand jury was false, a conviction was sustained. In the case of State v. Blize, supra, it was held that a statement of the accused under oath directly contradicting the evidence which he was accused of falsely giving was evidence very strongly corroborative of a witness who testified to its falsity and was ample to sustain a conviction. In the case of State v. Swafford, supra, it was held that the direct evidence of false testimony given by the defendant was sufficiently corroborated by admissions made by him that the evidence was false, to several different people, there being other corroborating evidence. In the case of State v. Molier, supra, it was held that the falsity of the oath made by the defendant and directly proved by one witness was corroborated by four other witnesses. In Rex. v. Mayhew, supra, it was held that perjury is sufficiently proved by the direct evidence of one witness as to the falsity of the defendant’s sworn statement, corroborated by an account or letter written by the defendant contradicting the statement made under oath.

We are of the opinion that not all of these cases sustain the rule as above laid down. There is little or no discussion in any of them upon the subject. They are naked declarations of the sufficiency of the corroborating evidence. We are inclined to give greater weight to the former view.

In the instant case, the defendant, when seen by an attorney in jail, made the declaration that what he previously swore to before the alderman was false; he saw and heard the statement reduced to writing; at the trial he testified that his testimony given before the alderman was the truth and his statement made in the jail was false. It is impossible from his testimony alone to determine which is the truth. To determine that we must resort to other evidence and that would be the evidence of the main witness. This would be reversing the requirement. Instead of the corroborating testimony strengthening the direct testimony, the latter would be strengthening the former. The mind is left in doubt as to which is the lie. How, then, is the direct testimony strengthened? Does it rise to the degree of corroboration required to sustain this heinous offense? The corroboration cannot be taken lightly; it must be reasonably certain and essential. We are of the opinion that it does not strengthen the testimony of the main witness and does not rise to the required degree of corroboration.

We do not regard it as proof of such a material circumstance in confirmation of the witness who gave the direct testimony of perjury as required by our own courts, as laid down in the cases of Williams v. Com. and Com. v. Rogo, supra.

Wherefore we are of the opinion that the corroborating testimony submitted by the Commonwealth did not rise to the standard required by the law and that the conviction should not be permitted to stand and that a new trial should be granted.

And now, December 14,1932, upon due consideration, the verdict of the jury is set aside and a new trial is granted.