Commonwealth v. Parker

56 Mass. 212

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1848
• Status: Published

Opinion

Dewet, J.

The defendant was indicted for perjury, in giving his testimony before the grand jury, on a complaint accusing George F. Farley of the like offence, alleged to have been committed by him in his answer as trustee, in an action instituted by Samuel Farrar against Lemuel Parker and George F. Farley, as his trustee. The jury having found a verdict against the defendant, the case now comes before us upon exceptions by him, to various rulings of the presiding judge at the trial.

In order to convict the defendant of perjury, it was neces sary to establish the fact of the materiality of the testimony given by him, and also to show its falsity, by competent evidence. The sufficiency of the evidence, on each of these points, was denied by the defendant; and the judge before whom the trial took place was requested to instruct the jury accordingly. These points have been fully argued before us; and, upon the questions thereby presented and various other points raised during the progress of the trial, the opinion of the court will now be stated.

1. As to the materiality of the testimony of Parker, which is alleged to be false. It must appear that the matter sworn to was material. But the materiality of the evidence must depend upon the nature of the question in issue. If the fact stated in the testimony was really foreign from the purpose, and had no bearing upon the point in issue, in the case on trial, such statement cannot authorize a conviction for perjury. But if it has a direct bearing, so far as to corroborate the evidence concerning the material matter, it is that species of testimony, which may involve the party in the crime of perjury; for its falsity is equally prejudicial to the party affected by it, and equally criminal, as if the matter stated had distinctly applied to the very point in issue.

It becomes necessary, therefore, to examine with particularity the precise question pending before the grand jury, and in reference to which the defendant was called to testify. The allegation made against Farley was, that he had sworn falsely and corruptly in his answer in the trustee case already alluded to._ The testimony of the government shows distinctly, that the main point, in which perjury was imputed to Farley, was that arising under his answer, wherein he stated, that in pursuance of a previous agreement between Samuel Parker and himself, he had appropriated $579 (a sum of money which he had received as the proceeds of certain real estate) in part discharge of demands he had against Parker, (except about $20, which he paid over or accounted to him for, about the time he received the money,) and in the further statement “I know tha; I appropriated, paid over, or accounted to said Samuel for, all the money so received by me as aforesaid.” The defendant alleges, and so testified, that no agreement was ever made by him with Farley authorizing the latter to apply the $579 $o received, in discharge of any debts or liabilities of the defendant, and that in fact no such application was ever made.

The evidence tended to show an indebtedness from Samuel Parker to Farley, the amount of which was a subject of controversy, and that while such indebtedness continued, Samuel Parker procured and delivered to Farley a conveyance from Lemuel Parker to Farley, as security for such indebtedness, of a house in Lowell, and of a sale by Farley of the house, by means of which he realized $579, and of a subsequent settlement between the parties in the year 1846, which is alleged by the one party and denied by the other to have embraced the $579. This sum, and the question whether it had been duly accounted for, were the subjects of inquiry in the trustee suit, in which Farley was a party and made his sworn answers.

The defendant, in support of his complaint against Farley for perjury, testified that Farley had never appropriated, paid over, or accounted for, this sum of $579, in pursuance of any agreement between him and Farley. He denied that the $579 constituted any part of the settlement. He proceeded to state the items which constituted his indebtedness to Farley, obviously for the purpose of showing, that the entire amount of those items would be discharged without any application of the $579. In this state of the inquiry before the grand jury, the defendant was asked, “ Was there not any contract or agreement between yon and Farley for the payment of more than legal interest ? ” After objecting to the question as irrelevant, and this not being a satisfactory answer to the inquiry, the defendant replied, “ No, there was not.” He was then asked, “ In any shape or in any form? ” and he again replied in the negative. It seems very clear, that this evidence was material, and that the statement made was calculated directly to corroborate and sustain the position assumed by the witness upon the main point or issue. If no such agreement for extra interest existed, then the whole amount of Farley’s demand might be demonstrated to have been fully discharged, independent of the $579 received from the sale of the house. If, on the other hand, the defendant had stipulated to pay large sums to Farley for usurious interest, those sums might have exhausted the $579, or some considerable portion of it. The usurious interest, if such was promised to be paid, and if the funds had been placed in Farley’s hands, as well to pay the unlawful as the lawful interest, would so much increase the demand of Farley, as materially to affect the amount which Parker might have stipulated, and which Farley says he did stipulate, to pay him. How far the circumstance, that the contract was an illegal one, and incapable of being enforced as an executory contract, presents any objection or affects the case, Avill be considered in another stage of the inquiry.

2. The question of more difficulty in the present case is that arising upon the other point, namely, the competency and sufficiency of the evidence relied upon to establish the falsity of the testimony given by the defendant. If we are to adopt the rule sometimes stated as the proper one upon this point, to Avit, that there must be two witnesses SAvearing directly to the fact, this objection might be strongly relied upon.

A brief reference to a few leading authorities will clearly show, that this rule, if it ever existed, has been much qualified. The rule, as stated by Parker, C. J., in the case of The Queen v. Muscat, 10 Mod. 193, is as follows: “ There is this difference betAveen a prosecution for perjury and a bare contest about property, that in the latter case the matter stands indifferent; and therefore a credible and probable witness shall turn the scale in favor of either party : but in the former, presumption is ever to be made in favor of innocence ; and the oath of the party will have a regard paid to it, until disproved. Therefore, to convict a man of perjury, a probable, a credible witness is not enough ; but it must be a strong and clear evidence, and more numerous than the evidence given for the defendant; for else there is only oath against oath.” In the case of Woodbeck v. Keller, 6 Cow. 118, it is said, that if there be only one witness, and circumstances strongly corroborative, it is enough. In the case of The State v. Hayward, .1 N. & M’C. 547, it was held, that two witnesses are not necessary to disprove the fact sworn to by the defendant; but when there is but one witness, some other evidence must be adduced in addition to his testimony. The rule, as stated by Mr. Greenleaf, 1 Greenl. Ev. § 257, is this : “ The evidence must be something more than sufficient to counterbalance the oath of the defendant and the legal presumption of his innocence. But it is not precisely correct to say, that these additional circumstances must be tantamount to another witness. The same effect being given to the oath of the prisoner, as though it were the oath of a credible witness, the scale of evidence is exactly balanced, and the equilibrium must be destroyed by material and independent circumstances, before the party can be convicted: ” — thus adopting the views of the court as held in 6 Cowen, above cited. The case of The United States v. Wood, 14 Peters, 440, has gone, perhaps, still further; holding that no living witness, not even one, is absolutely requisite ; but that documentary or written evidence may be of such a character, as to produce that high degree of evidence, requisite to overcome the oath of the defendant and the presumption of innocence. The treatises of Phillips and Russell, 1 Phil. Ev. 115, and 2 Russ. 548, seem fully to sustain the general rule, that where there are corroborating circumstances, proved by independent evidence, the proof is sufficient. The case of Rex v. Mayhew, 6 C. & P. 315, seems to be quite analogous to the present, as to the point there settled, namely, that “ even a letter, written by the defendant, contradicting his statement upon oath, would be sufficient to make it unnecessary to have a second witness.”

Without extending these citations further, we may safely assume, that the rule requiring two living witnesses, in contradiction to the statement of the defendant, if it ever existed, nas long since been relaxed; and that all that is requisite to a conviction of perjury is, that, in addition to one directly opposing witness, there should be established, by independent evidence, strong corroborating circumstances, of such a character as clearly to turn the scale and overcome the oath of the defendant and the legal presumption of his innocence.

The legal principles adopted by the presiding judge, and the rule prescribed by him, in reference to this point, seem to have been well authorized, and in accordance with the best legal authorities, which we have for our guide. Upon this ruling, the further question was, and indeed that alone seems to present the only real ground for argument, on the part of the defendant, whether the letter ruled upon as corroborating evidence furnished the evidence, that would authorize the jury to find the defendant guilty. The only inquiry here seems to be, not whether the court "would have given the same effect to the corroborating evidence that the jury have done, but whether there was competent evidence to authorize the finding of the jury.

The letters of the defendant, relied upon by the government, certainly corroborated the testimony of Farley, and contradicted that of the defendant, where he stated to the grand jury, that there was no agreement for the payment of more than legal interest in any shape or form. The letter of the defendant to Farley, of the 12th of July, 1834, contains a direct promise to pay more than legal interest, upon a demand then held by Farley, if the payment could be delayed. The letter of the 18th of August, 1834, after apologizing for not paying the note to Farley, during that week, says: “ I conclude you are not very desirous to receive the amount immediately, if you get your bonus, which I will see done.” Various other letters were read in evidence, bearing upon the fact of the indebtedness of the defendant to Farley, and upon the manner in which their dealings were conducted. The letters particularly referred to above would only apply to the money loaned before the 18th of August, 1834. All this evidence was submitted to the jury, and, under proper instructions as to the degree of evidence required to establish the falsity of the testimony given by the defendant before the grand jury, and in which the perjury was charged. In this state of the case, we do not feel authorized to set aside the verdict, and grant a new trial for any error in respect to this point.

It was .rged in the argument, that this alleged contract for the payment of usurious interest was illegal; and, therefore, that if there had been an agreement on the part of the defendant to pay extra interest, it would constitute no valid contract; and that, for this reason, it would not be perjury to deny wholly the making of such agreement, however false in fact the statement might be. The case of Rex v. Dunston, Ryan & Moody, 109, was cited to this point. How far this ground might .have availed the defendant under other circumstances, and in a case like that cited, we do not decide. If it be true, that such contract would have been voidable as between- the parties, and incapable of being enforced, and therefore the denial of it not a falsehood, and not material if made in reference to a claim or demand sought to be enforced as between such parties, that is not the present case ; nor does it settle the rule, as to the nature and effect of such a contract, in the case of a creditor seeking to avoid such usurious contract made by his debtor with a third person; and much less that of a creditor seeking by the trustee process to withdraw money paid by his debtor upon a usurious contract. We apprehend, that under the trustee process, no creditor could require Farley to pay over to him any money actually paid the former as usurious interest, either by Samuel Parker or Lemuel Parker, whatever other penalties he might incur. As between such parties, the extra interest actually paid to Farley, under a usurious contract, might be properly stated as forming part of his demand, to which he had, with the consent of Parker, applied the proceeds of the sale of the real estate. Such application and payment, although upon a usurious contract, would discharge Farley from the trustee process. It was, in this view, a material inquiry, whether or not any such usurious agreement was made, and whether any demand of this character existed, which might increase the total amount of the demand of Farley, to which the $579 might have been applied ; and a false answer in relation to it might therefore subject the defendant to punishment for perjury.

“The remaining points raised by the exceptions present no questions of difficulty, and may be more summarily disposed of.

3. The objection taken to the ruling of the judge, excluding the testimony of Lemuel Parker, that Samuel Parker had no interest in and was not the owner of the house sold, is one that is unavailing. The testimony proposed to be given had no tendency to contradict Farley, as Farley only testified as to the declarations of Samuel Parker to him about the title, and his authority to convey the same. For any other purpose than to contradict Farley, the testimony would be irrelevant, and it was, as we think, properly excluded.

4. The certificate of Coburn, offered in evidence as the original of a certain paper delivered to Farley by Lemuel Parker, was also properly rejected. No notice had been given to Farley to produce the paper in his hands, and no sufficient ground was shown for the admission of a copy.

The result, therefore, is, that all the exceptions are overruled, and that judgment must now be rendered on the verdict.

*

This verdict was afterwards set aside, and a new trial ordered, on tie ground of newly discovered evidence; and on such trial, the defendant was acquitted.