Commonwealth v. Giles

213 N.E.2d 476, 350 Mass. 102, 1966 Mass. LEXIS 694

• Court: Massachusetts Supreme Judicial Court
• Decided: January 13, 1966
• Status: Published

Opinions

Cutter, J.

The defendant was indicted upon two counts alleging perjury before the special commission created by Res. 1962, c. 146 (the Crime Commission). The first count set out that he “being required by law to take an oath . . . and being duly sworn did willfully swear . . . falsely in a matter relative to which such oath . . . was required wherein the question was asked in substance . . . whether . . . [he] had any connection with the Nessex Engineering Company [Nessex] in the period . . . since it was formed . . . and to this . . . [he] did willfully and corruptly testify ... in substance . . . that he had no personal or financial connection with Nessex . . . from the date it was formed to the present, well-knowing that his said testimony was false.”¹

A judge, sitting without a jury, found the defendant guilty on both counts. Execution of sentence was suspended pending a determination of issues of law raised by a report to this court under G. L. c. 278, § 30, on the basis of which the facts are stated.

On February 5, 1964, the defendant voluntarily appeared before the Crime Commission, and was informed that the commission had been conducting an investigation of Nessex, Stuart Engineering Associates, and others. “He was asked ‘with reference to either the investigation in general or the subject matter of the investigation as pertains to those two corporations and the two individuals if (he) desired to make . . . some statements.’ ”

“With reference to Nessex ... he was asked . . . what his connection with that company was ‘if any, in the period of time since it was formed to the present.’ To this question he answered: ‘I have had no personal or financial connection with Nessex . . . from the day it was formed to the present. ’ ” He was also asked whether he had “had any communications or dealings of any nature with Nessex,” and he answered, “I have not personally, no, not as an individual, no.” In answer to the question, “At any point between the formation of Nessex and the present time, did you receive any amounts of money from Nessex?”, he answered that he had “never received a salary or commission or money from Nessex for any other purpose than a loan . . . received from Nessex,” about 1956. Evidence relevant to whether these answers were true is summarized in the margin.²

The trial judge’s report presents in unduly general terms “questions of law” concerning G-. L. c. 268, § 1.³ Greater specification of the issues would have been appropriate. We consider the issues, however, as if the trial judge had stated them as follows:

1. Could the indictment properly be brought under the second clause of the first sentence of c. 268, § 1 (see fn. 3, the words following the letter [C] hereinafter referred to as “the second clause”), which must be distinguished from the first part of that sentence (hereinafter referred to as the “first clause”) ? 2. Was the indictment defective? 3. Was direct proof of the defendant’s knowledge of the falsity of his statements and of his intentional false testimony required, or could his knowledge and intention be inferred from other facts in evidence? To deal with the first and second issues requires consideration of what must be alleged and proved under the second clause.

1. The defendant contends that the indictment should have been under the first clause (see fn. 3, language following points [A] and [B]). Both counts were stated in substantially the words of the second clause (see fn. 3, at points [C] and [D]).

The first sentence of c. 268, § 1, has been in essentially its present form since 1902. See B. L. c. 210, § 1 (1902). The Beport of the Commissioners for Consolidating and Arranging the Public Statutes (see p. xviii, and pp. 1759, 1766) combined in one section two separate sections of the Public Statutes (1882), viz. c. 205, § 1 (as amended by St. 1892, c. 123), and § 2.⁴ These sections in the 1882 revision were in substantially the same form as in Rev. Sts. c. 128, §§ 1, 2 (1836), which are set out in the margin.⁵ See also Gen. Sts. c. 163, §§ 1, 2 (1860). Section 1 of the 1836 revision was based on St. 1812, c. 144, § 1.⁶ Section 2 arose from St. 1829, c. 56.⁷ The Commissioners appointed to revise the General Statutes, see their 1835 report, Part IV, p. 23, proposed (1) to put the earlier statutes in two adjacent sections and that what became Rev. Sts. c. 128, § 2 (see fn. 5), should read, “If any person, of whom an oath . . . shall be required, by the provisions of any act of incorporation, or by any general law of this Commonwealth, shall wilfully swear . . . falsely, in regard to any matter . . . respecting which such oath . ... is required, such person shall be deemed guilty of perjury ...” (emphasis supplied). The italicized words were omitted before the revision was enacted (see fn. 5).⁸ We regard the very substantial broadening of the language of the Commissioners ’ draft of § 2 as showing the legislative intention that all wilfully false (and relevant) statements under oath, otherwise than in or ancillary to judicial or adjudicatory proceedings,⁹ were to constitute perjury, where the oath reasonably should be regarded as “required by law.” We find substantial support for this view in the discussion of Pub. Sts. c. 205, § 2, in Avery v. Ward, 150 Mass. 160, 162-163, dealing with an oath concerning a statement of a loss under a fire insurance policy. ¹⁰

The first sentence of Gr. L. e. 268, § 1 (fn. 3), thus is the outgrowth of two separate lines of statutory development, viz. (a) sections defining common law perjury in court, in adjudicatory proceedings (see Jones v. Daniels, 15 Gray, 438, 439-440, dealing with testimony before fence-viewers; Commonwealth v. Bessette, 345 Mass. 358, a contested proceeding under the civil service statutes), and in proceedings ancillary to judicial proceedings, and (b) sections dealing with false statements under oath where there was statutory or other legal justification for requiring an oath in particular circumstances. The language of the second clause (fn. 3, at points [C] and [D]), like that of its predecessors (see e.g. fn. 5), is sufficiently broad to include perjury in hearings before legislative and investigative bodies. See G. L. c, 3, § 27 (authorizing members of a General Court committee to “administer oaths to persons examined before such committee”), and § 28.

The Crime Commission (Res. 1962, c. 146) was “authorized to investigate, find facts . . . and file reports which may be used as a basis for legislative action. It . . . [lacked] power to apply the law or to prescribe punishment.” Commonwealth v. Benoit, 347 Mass. 1, 6. Sheridan v. Gardner, 347 Mass. 8, 12-13, app. dism. 379 U. S. 647. Gardner v. Massachusetts Turnpike Authy. 347 Mass. 552, 558-559. See Gardner v. Massachusetts Turnpike Authy. 348 Mass. 532. By Res. 1962, c. 146, it might “require . . . testimony under oath,” and apply for court orders compelling “the giving of testimony under oath . . . in furtherance of any investigation under . . . [the] resolve.” Proceedings before the commission were not “in a judicial proceeding” and also were not “in a proceeding in a course of justice ’ ’ within the meaning of the first clause (fn. 3, at points [A] and [B]). As has been indicated above, Avery v. Ward, 150 Mass. 160, 163 (fn. 10), asserted that the insurance claim oath there considered was not in a “proceeding in a course of justice,” thus in effect recognizing that this term dealt only with adjudicatory proceedings comparable to those discussed in Jones v. Daniels, 15 Gray, 438. The Crime Commission’s hearings were investigative and not adjudicatory. Thus perjury in the course of them could properly be reached only under the second clause. We hold that when the defendant was examined before the commission under oath, he was then “required by law to take an oath” and could be prosecuted under the inclusive language of the second clause (see fn. 3 at point [C]).

We reach this conclusion because of the breadth of the statutory language. The ordinary meaning of that language would put any person on notice that his conduct will he criminal if he wilfully lies under oath before a body such as the Crime Commission. That such language was made broad intentionally is abundantly confirmed by the 1835-1836 revision of the earlier provisions of St. 1829, c. 56. The second clause (fn. 3 at points [C] and [D]) cannot properly be construed as meaning only what the 1829 statute said, hut must he given the interpretation which naturally follows from its words as broadened in 1836. Although the second clause is broad enough to include of-fences covered by the first clause, in view of the 1902 combination of the two clauses in a single sentence, we construe the second clause as dealing with perjury not covered by the first clause. None of the later revisions of component parts of what is now G. L. c. 268, § 1, leads us to any different conclusion.¹¹

The defendant relies considerably upon Commonwealth v. Louis Constr. Co. Inc. 343 Mass. 600, 606-607, where one Recine was indicted (as the original papers show) for allegedly false testimony “in a proceeding in the course of justice before a special [investigating] committee of the Senate.” The indictment obviously was under the first clause (see fn. 3 at point [B]). This court reversed a conviction and held that it did not appear how the one false answer “was material to any matter . . . under investigation,” and went on to say that “ [m] ateriality must not only be alleged hut proved by the Commonwealth.” Recine argued in that case, not only (1) that the materiality of evidence sought had not been shown, but also (2) that the hearing was not a “judicial proceeding” or a “proceeding in the course of justice,” or one in which an oath was “required by law.” This court did not discuss the second contention. The legislative history of G. L. c. 268, § 1, reviewed above, did not come to our attention. We do not regard the case as determining whether the indictment of Recine under the first clause was proper.

2. The second clause (see fn. 3, at points [C] and [D]) requires, in language different from that used in the first clause (fn. 3, at point [B]), proof of facts showing that a false answer is material. Under the second clause, a false answer, to constitute perjury, must be “in a matter relative to which such oath ... is required.” This language implies that relevance to the subject matter of the inquiry is an element of the offence. Whether questions, allegedly falsely answered, were relevant and material is a question of law. Sinclair v. United States, 279 U. S. 263, 298-299. Russell v. United States, 369 U. S. 749, 755-756.

Materiality in respect of perjury means relevance in the sense that the answer might tend in reasonable degree to affect some aspect or result of the inquiry. This court, in discussing an indictment for perjury in a judicial proceeding, said that a wilfully false answer “if it be of no importance and immaterial ... is not perjury, because it does not affect the issue,” although “ [i]t is enough if . . . [the answer is] circumstantially material, though not in itself sufficient to establish the issue.” Commonwealth v. Pollard, 12 Met. 225, 228-230. See Commonwealth v. Grant, 116 Mass. 17, 20-21. See also Carroll v. United States, 16 F. 2d 951, 953-954 (2d Cir.), cert. den. 273 U. S. 763; Dolan v. United States, 218 F. 2d 454, 458 (8th Cir.), cert. den. 349 U. S. 923; United States v. Collins, 272 F. 2d 650, 653 (2d Cir.); LaRocca v. United States, 337 F. 2d 39, 43 (8th Cir.); United States v. Marchisio, 344 F. 2d 653, 665 (2d Cir.); Am. Law Inst., Model Penal Code (Tent. draft No. 6, May 6, 1957) § 208.20, and comments, pp. 104-115; Perkins, Criminal Law, 390-392. The language just quoted is generally applicable to false answers in the course of legislative inquiries (United States v. Lattimore, 215 F. 2d 847, 851-852 [Ct. App. D. C.]), although what is material and relevant to a legislative inquiry (like that of the Crime Commission) frequently will cover a much wider range than what is pertinent to strictly defined issues in many, if not most, judicial and other adjudicatory proceedings. See Attorney Gen. v. Brissenden, 271 Mass. 172, 184-185. We hold that, in a prosecution under the second clause (see fn. 3 at points [C] and [D]), in respect of testimony before a legislative body, the Commonwealth must prove facts from which it can be determined that any allegedly false answer was directly or circumstantially relevant and material to the authorized legislative inquiry and within the scope of that inquiry.¹²

The cases cited also indicate that the test of relevancy and materiality is not whether the false testimony did in fact influence a pertinent determination. Instead, it must be decided whether, viewed objectively, the testimony directly or circumstantially had a reasonable and natural tendency to do so. See LaRocca v. United States, 337 F. 2d 39, 43 (8th Cir.); United States v. Marchisio, 344 F. 2d 653, 665 (2d Cir.). See also United States v. Hirsch, 136 F. 2d 976, 977 (2d Cir.), cert. den. 320 U. S. 759. Cf. United States v. Icardi, 140 F. Supp. 383, 388-389 (D. D. C.); United States v. Cross, 170 F. Supp. 303, 309-310 (D. D. C.). Upon the evidence summarized in the report (see fn. 2) if it was not controlled by other evidence, the trial judge should properly have ruled (and we assume that he did so rule) that inquiry, concerning the relations of a State representative (who later served as Commissioner of Public Safety) to a corporation for which he approached at least one State employee, was material to the Crime Commission’s duty to investigate “the existence and extent of . . . corrupt practices in government.” Res. 1962, c. 146.

3. Because the indictment under the second clause of the first sentence of c. 268, § 1, was expressed in substantially the statutory language, it adequately alleged all the elements of the offence there defined. Commonwealth v. Pentz, 247 Mass. 500, 505. Commonwealth v. Bracy, 313 Mass. 121, 123. See Commonwealth v. Bessette, 345 Mass. 358, 360. See also Commonwealth v. Binkiewicz, 342 Mass. 740, 747. As Judge Frank (concurring) said in United States v. Silver, 235 F. 2d 375, 378 (2d Cir.), “[I]f the statute, without mentioning materiality, implies that element, then so does the indictment; the shorthand expression sufficient in the one is equally sufficient in the other.” Any suggestion to the contrary in Russell v. United States, 369 U. S. 749, 759-769, does not represent the Massachusetts law concerning criminal pleading, and, in any event, may rest upon the difference between (a) a prosecution for perjury during a legislative inquiry and (b) one for contempt for refusal to answer questions in such an investigation. See People v. Matula, 52 Cal. 2d 591, 598-600.

As to the testimony alleged to be false, the indictments were sufficiently specific. They could have been amplified, in the discretion of the trial judge, by a bill of particulars, if one had been requested. See Gr. L. e. 277, § 40.

4. The defendant incorrectly contends that there must be direct proof that he knew that his testimony was false. Knowledge may be inferred by the trier of the fact from circumstantial evidence, which reasonably tends to show that knowledge existed. Commonwealth v. Holiday, 349 Mass. 126, 128. In perjury cases, such knowledge may be inferred from the falsity of the statement itself, at least if considered in relation to the facts relating to the defendant’s opportunity to have knowledge. Young v. United States, 212 F. 2d 236, 241 (Ct. App. D. C.), cert. den. 347 U. S. 1015. United States v. Magin, 280 F. 2d 74, 77-78 (7th Cir.), cert. den. 364 U. S. 914. United States v. Nicoletti, 310 F. 2d 359, 361-364 (7th Cir.), cert. den. 372 U. S. 942. People v. Dixon, 99 Cal. App. 2d 94, 96-97. Pendleton v. State, 239 Ind. 341, 349. State v. Chamberlin, 30 Vt. 559, 571. See Perkins, Criminal Law, 682; Katz v. United States, 281 Fed. 129, 130-131 (6th Cir.). We assume that, in any perjury case, if the trier of the fact should conclude that a defendant believed his statements to be true, wilful perjury by him would not have been shown. See Commonwealth v. Pollard, 12 Met. 225, 227-228; Commonwealth v. Brady, 5 Gray, 78, 79.

The report shows that there was direct evidence concerning (1) the defendant’s testimony before the commission and (2) what the facts were (fn. 2). The discrepancies between the defendant’s testimony and the evidence stated in the report warranted the trial judge in concluding that the testimony was false. From this evidence, also, the trial judge could reasonably infer that the defendant knew that his testimony was not true.¹³

5. The issues treated as raised by the report are answered: (1) The indictment was properly brought under the second clause of the first sentence of C. L. c. 268, § 1. (2) The indictment was proper in form. (3) Knowledge by the defendant that his statements were false could be inferred from other facts shown in evidence.

So ordered.

1 The second count was similar, except (1) that the question dealt with was whether the defendant “had ever received any amounts of money from Nessex,” and (2) it was alleged that the defendant ‘ ‘ didr willfully and corruptly testify ... in substance . . . that he had never received a salary or commission or money from Nessex for any . . . purpose other than a loan, well-knowing that . . . [this] was false.”

2 Nessex was formed in 1954 to design and execute various forms of engineering work. The defendant, from 1946 to 1961, was a member of the House of Representatives. In Í961 he became Commissioner of Public Safety. At some time, he “made contacts with” the supervisor of surveys “of the Department of Public Works in behalf of Nessex.” In 1955, he indorsed a Nessex note for $9,000. He hired premises for Nessex and hired from Nessex an office in 1956. He sold property in Methuen to Nessex. His wife had worked for Nessex prior to her marriage and continued to do so. The defendant was “on and off” the payroll of Stuart Engineering Associates after 1958. There were “interchanges of personnel between Stuart and Nessex.” Nessex cheeks were signed by its treasurer, the defendant’s brother-in-law. Nessex paid for the defendant’s membership in at least one Boston club and gave checks “covering fees and expenses of” the defendant at one club, marked on the club’s records in the defendant’s name. Sales by a florist, shown on the latter’s books as sales to the defendant, were paid for “by Nessex checks.” Nessex cheek book stubs “bear handwriting identified as that of” the defendant. Luggage purchased by a person identified as the defendant was paid for by a Nessex check. The stub was in the defendant’s hand. A Nessex cheek paid for airplane tickets to Florida for the defendant and his wife. Other checks were made out to the defendant’s church “for its building fund” and “to a college in which his son was a student.” The defendant was listed as an employee of Nessex in an insurance program.

3 Section 1 reads as follows, “Whoever, being lawfully required to depose the truth [A] in a judicial proceeding or [B] in a proceeding in a course of justice, wilfully swears . . . falsely in a matter material to the issue or point in question, or [G] whoever, being required by law to take an oath . . . wilfully swears . . . falsely [D] in a matter relative to which such oath ... is required, shall be guilty of perjury. [E] Whoever commits perjury on the trial of an indictment for a capital crime shall be punished by imprisonment in the state prison for life or for any term of years, and [F] whoever commits perjury [Gr] in any other case shall be punished by imprisonment in the state prison for not more than twenty years or by a fine ... or by imprisonment in jail ... or by both such fine and imprisonment . . .The letters in brackets found in § 1, as quoted above, have been inserted only for convenience in referring to the language immediately following such letters respectively.

4 The Commissioners said of § 1, at p. 1766 of their report, “Pub. Sts. e. 205, § 1 seems to be objectionable in its present form, for it is doubtful whether by it the legislature intended merely to prescribe the penalty for the common law crime of perjury or both to define the crime and to prescribe the penalty. If the former, the clause ‘being lawfully required to depose the truth in any proceeding in a course of justice’ is superfluous. If the latter, the definition is defective inasmuch as it does not contain all the essential elements of the crime. The section has been so drafted as to fully define the crime and prescribe the penalty. See Jones v. Daniels, 15 Gray, 438; Avery v. Ward, 150 Mass. 160.”

5 Chapter 128, § 1, reads, “Every person who, being lawfully required to depose the truth in any proceeding in a course of justice, shall commit perjury, shall be punished . . ..” Then follows a statement of penalties. Section 2 reads, ‘ ‘ If any person, of whom an oath shall be required by law, shall wilfully swear falsely, in regard to any matter or thing, respecting which such oath is required, such person shall be deemed guilty of perjury.”

6 Chapter 144, § 1, provided that “if any person being lawfully required to depose the truth in any proceeding in a course of justice, shall commit any manner of wilful perjury, every person so offending . . . shall be punished . . .. ” The penalties were then listed.

7 Chapter 56 provided “ [t]hat if any person, of whom an oath is required by the provisions of . . . acts . . . [of] incorporation, or by any general law . . . shall wilfully and falsely swear ... in regard to any matter or thing respecting which such oath is required to be made, such person shall be deemed guilty of Perjury, and on conviction thereof . . . shall be punished in the same manner as perjury is now punished . . ..”

8 See Journals of the Committees on the Revised Statutes, p. 360 (July 23, 1835), and Amendments to the Report of the Commissioners Appointed to Revise the General Statutes Adopted by the Committees on the Revised Statutes, Part IV, p. 156.

9 Examples of earlier statutes requiring oaths otherwise than in or in connection with judicial proceedings were St. 1818, c. 114, § 3; St. 1828, c. 96, § 27, and c. 97, § 4; St. 1829, e. 53, § 6. See St. 1802, c. 136, § 4, later in Eev. Sts. c. 126, § 38.

10 Mr. Justice Knowlton said that the interpretation of the words “required ¡by law,” was ‘ ‘by no means free from difficulty. It has been said that the provision ‘might seem from its very general language to embrace all eases where an oath had been lawfully administered in the execution of official duty.’ Jones v. Daniels, 15 Gray, 438. But in the same case it is suggested that . . . the original statute . . . (St. 1829, c. 56) seems to have had reference to oaths required by special provisions of statute. Both of these remarks were entirely outside of the question involved in . . . [that] case . . . and_ we are not aware that the statute has ever been before the court for construction. The fact that in so general a revision of our laws as that of 1835 the language was considerably changed, and the further fact that the law has been twice re-enacted in substantially the form in which it was put in that revision, make the original statute of less importance than might otherwise be attached to it.” Mr. Justice Knowlton also said that, in the Avery case, the oath, “ [a]lthough not taken ‘in any proceeding in a course of justice,’ so that if false it would have subjected the affiant to punishment for perjury at the common law, or under . . . [Pub. Sts. c. 205, § 1], . . . was within the reason of the [common law] rule . . . [because] taken in a preliminary proceeding . . . [to] proceedings in court .... [T]he . . . purpose of the statute will best be conserved by so construing it that the requirement in the present case shall be deemed to have been a requirement ‘by law,’ such that it would have subjected the assured to punishment for perjury if he had wilfully sworn falsely.”

11 Little, if any, weight can be given to statutes passed long after the 1835 revision. The implication, however, of G. L. c. 3, § 28 (originally St. 1878, c. 51, § 1), is that false testimony before a legislative committee constitutes perjury. A contrary implication could be found, of course, in express statutory provisions, also enacted long after 1835, that false testimony before a particular investigatory body shall constitute perjury. See St. 1908, c. 562, S 5, as affected by St. 1909, c. 486, § 21 (Boston Finance Commission); St. 1912, c. 719, § 9 (Commission on Economy and Efficiency), as affected by St. 1916, c. 296, § 1, and St. 1917, c. 165, § 2. Such provisions may have been included in particular statutes from an excess of caution. When the 1917 statute was revised to appear as G. L. c. 7, § 11, the express provision concerning perjury was omitted, possibly in reliance on G. L. c. 268, § 1. No substantive change seems to have been intended. See Preliminary Report of the Commissioners to Consolidate the Laws (1918) (Res. 1916, c. 43), pp. 70-71.

12 We thus reject the Commonwealth’s contention (see note to 1859 edition of Commonwealth v. Knight, 12 Mass. 273, 277) that the crime defined by the second clause of the first sentence of c. 268, § 1, although described in the statute and its predecessors (fns. 3 and 5) as perjury, is essentially a lesser offence (not requiring proof of facts showing relevance or materiality) similar to the offence, essentially false swearing, discussed in Plummer v. State, 90 Ga. App. 773, 776-780; Commonwealth v. Hinkle, 177 Ky. 22, 23-24; State v. Ellenstein, 121 N. J. L. 304, 324; State v. King, 165 Ore. 26, 30-31. See United States v. Silver, 235 F. 2d 375, 377-378 (2d Cir.), cert. den. 352 U. S. 880; United States v. Marchisio, 344 F. 2d 653, 666 (2d Cir.). Cf. People v. Clemente, 285 App. Div. (N. Y.) 258, 260-261, affd. 309 N. Y. 890.

13 We do not regard the report (which merely summarizes what may be only a part of the evidence) as presenting questions, argued by the defendant, concerning (1) the adequacy of the proof of falsity, and (2) whether older rules as to such proof still remain in effect. See Commonwealth v. Fine, 321 Mass. 299, 302-303, and cases cited; United States v. Marchisio, 344 F. 2d 653, 664-665 (2d Cir.); Wigmore, Evidence (3d ed.) §§ 2040-2042.