Fletcher v. State

123 P. 80, 20 Wyo. 284, 1912 Wyo. LEXIS 35

• Court: Wyoming Supreme Court
• Decided: April 25, 1912
• Docket: No. 674
• Status: Published

Opinion

Scott, Justice.

The plaintiff in error (defendant below) was charged by information duly filed in the District Court of Laramie County on June 4, 1909, tried, convicted and judgment pronounced against him for the crime of perjury. He brings the case here on error.

The charging part of the information is as follows: “That C. D. Fletcher, late of the county aforesaid, on the 21st day of December, A. D. 1908, at the County of Laramie, in the State of Wyoming, did before the District Court of the First Judicial District, sitting in and for the County of Laramie, in the State of Wyoming, Honorable R. N. Matson, judge of said court, presiding, on an issue within the jurisdiction .of said court duly joined and trial before a jury of the county in that behalf duly sworn, on a charge of felonious assault with intent to commit rape, between the State of Wyoming as- plaintiff, and Anthony Wilde as defendant, did then and there appear as a witness upon the hearing thereof, and was in due form of law sworn by said court having competent authority and full power to administer to him.the oath of a witness before said court; whereupon it then and there became and was a question material to said issue whether Anthony Wilde, defendant in said case, with a crew or gang of men began and commenced putting up ice in the ice house of C. D. Fletcher and Anthony Wilde on the 23rd day of December, 1907, and whether said Anthony Wilde, was present at said ice house of the said C. D. Fletcher and Anthony Wilde, engaged in putting up ice in said ice house, on the 25th day of December, 1907, and whether the said Anthony Wilde was injured at said ice house on the 25th day of December, 1907, and to this the said C. D. Fletcher did then and there feloniously, knowingly, wilfully, corruptly and falsely upon such oath as aforesaid swear, testify and say, in substance and effect, that the said Anthony Wilde, with said crew of men, began and commenced putting up ice at said ice house on the 23rd day of December, 1907, and that the said Anthony Wilde was present at said ice house and engaged in the work of putting up said ice on the 25th day of December, 1907, and that the said Anthony Wilde was injured at said ice house on said day, whereas in truth and in fact as the said C. D. Fletcher then and there well knew, said testimony and matters as aforesaid by him, testified to and declared to be true were false and untrue, and the said Anthony Wilde with said crew of men did not begin putting up ice in the ice house of C. D. Fletcher and Anthony Wilde on the 23rd day of December, 1907, but began putting up ice with said crew of men on the 30th day of December, 1907, and the said Anthony Wilde was not present at the said ice house and engaged in the putting up of said ice on the 25th day of December, 1907, and was not injured on'said day at said place; and so the said C. D. Fletcher did then and there in manner and form as aforesaid commit wilful and corrupt perjury; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Wyoming.”

Upon the trial of Wilde for the alleged felonious assault evidence of the state tended to show that the offense was committed at about two o’clock on thé afternoon of December 26, 1907. The evidence of Bernice Wells, the prosecu-trix, given in that case as shown by the transcript of her evidence here introduced tended to show that Wilde rode on horseback to the home of prosecutrix, dismounted and entered her house where she was alone between 12 and 1 o’clock in the afternoon, inquired if she had seen a horse of his for which he was in search, and upon her answer that she had not, rode away and returned about 2 o’clock riding a different horse which he hitched about 300 yards from and re-entered the cottage and committed the assault. The defense in that case was in the nature of an alibi, and to the effect that Wilde and his partner with a crew of men commenced putting up ice on December 23d and continued in such work for a period of 10 days and on December 25th, between 8 and 9 o’clock in the morning, in attempting to-loosen a saw which had been left in the ice during the preceding night Wilde fell and the saw injured him so that he was unable to ride horseback for sometime thereafter, and that in going to and from his house to his place of business he rode in a wagon always accompanied by someone. There was also evidence of the state tending to prove that the business of putting up the ice did not begin until the 30th day of December hnd that Wilde was not present at said ice house and engaged in putting up ice on the 25th day of' that month and was not injured on said date at that place.

1. It is assigned as'error that the evidence does not support the verdict. The burden was upon the state to prove beyond a reasonable doubt' all of the material averments constituting the crime charged. Among the material averments it was necessary to prove, first, the materiality of the evidence upon the issue in the trial of the case in which it was given; and, second, that defendant testified as alleged; and, third, that his evidence was knowingly and corruptly false. If the state failed in either of these essential requirements then the judgment must be reversed. There being no dispute as to what the alleged false evidence was, its materiality upon proof of other evidence given upon the trial of the assault case was a question of lay for the court. The defense in the assault case was in the nature of an alibi. That is the evidence upon which the perjury is assigned was given in support of the contention that Wilde, the defendant, in the assault case, was not at the home of the prosecutrix when the assault is claimed to have taken place, viz: on the 26th day of December, 1907. The evidence of what the defendant and the prosecutrix testified to at the trial of the assault case was admitted over objection to show the alleged false testimony and its materiality and the evidence there given by the prosecutrix was properly limited to the question of materiality by an instruction to the jury that it did not prove or tend to prove the falsity of the testimony upon which the perjury is assigned. (Dickerson v. State, 18 Wyo. 440, 463, 111 Pac. 857, 116 Pac. 448.)

It is here urged that there is no evidence in this record independent of the transcript of the evidence given by Bernice Wells, the prosecutrix, upon the trial of the assault case, which as we have already stated was not competent as proving the falsity of Wilde’s testimony upon.which perjury is assigned, tending to show that Wilde, the defendant there, was at the cottage of the prosecutrix on the afternoon of the 26th of December, 1907, at the time and place and where-it was claimed in the assault case that the felonious assault occurred, and that for that reason there is a failure of proof. It was not necessary to prove that fact in the case here. It was sufficient that his presence at that time and place was ■in issue upon the trial of the assault case or in other words that that question constituted a material issue in the trial' of that case and that the evidence upon which the perjury is assigned'was corruptly and falsely'given during the trial and upon that issue.

It was said by this court in Dickerson v. State, supra, as follows: “In perjury it is not necessary that the alleged false testimony bear directly upon the issue. It is sufficient even though it be upon a collateral matter' or constitute material circumstances legitimately tending to prove or disprove facts which are in issue, or if it tend to strengthen or weaken the evidence in support of or against the issue upon the trial in which it was given.” As already stated the issue in the assault case was as to the presence of the defendant at the cottage of the prosecutrix on the afternoon of the 26th of December. The defendant here upon the trial of Wilde in the assault case testified in substance that they commenced putting up ice on December 23rd, and on December 25th, between the hours of 8 and 9 o’clock in the morning of that day, Wilde was injured at the ice house and that Wilde rode a horse every day up to the time of the injury in going from his home in Hartv'ille to and returning from the ice house, a distance of about 3)4 miles. This evidence tended to negative the claim that he rode to the cottage of the prose-cutrix on December 26th. Clearly if he was not at the ice house putting up ice and injured on December 25th he was not incapacitated from riding horseback on December 26th by reason of any injury or supposed injury received by him on December 25th. From the transcript of the evidence of the prosecutrix given by her upon the trial of the assault case she there testified that Wilde rode horseback to her house at about 1 o’clock in the afternoon of ■ December 26, 1907, remained a short time’ and left, returning again then riding a big bay horse, different from the former and which he hitched about 300 yards from and walked from the place where' he hitched the horse to the cottage and entered the same where hé assaulted her. The alleged false evidence was thus shown to have been material as affecting his ability to ride a horse to and his presence at her cottage on that day.

It was, however, incumbent upon the state to prove in the case here that issue was joined upon the trial of the assault case. The main issue in that case if any was the guilt or innocence of a felonious assault with which Wilde, the defendant therein, stood charged. Issues which arose in the trial of that case which were collateral and material to the main issue would constitute a basis for the assignment of perjury if false testimony was knowingly given thereon. If, however, there was no main issue or proof of issue joined then there could be no collateral issue thereto. In the case before us the information as shown by the bill of exceptions was introduced and read to the jury. The record of the arraignment and plea is as follows: “December 19, 1908, defendant arraigned; plead not guilty.” This record constitutes no part of the information but is a record of the plea interposed by the defendant. Sec. 6198, Comp. Stat., provides that “If the. accused plead ‘not guilty’ the plea shall be recorded on the indictment or information.” By the terms of this statute the plea shall be recorded on the information or indictment. Such record forms no more a part of the information than it does of an indictment. The information is separate and distinct from the record of the plea, and exists, independent of the plea before and after the record of the latter. The information or indictment and the plea of not guilty thereto or its equivalent constitutes the issue for trial. In the case here the bill shows that the information was admitted in evidence and read to the jury but no record of the plea of not guilty by the defendant, or that, circumstances arose so as to authorize the court to enter such plea (sec. 6197, Comp. Stat.) was offered in evidence.. The record of the plea upon the information as above did not go to the jury upon the introduction of and reading the information to the jury. The statute makes the distinction between the information and the record of the plea. It is uniformly held that there can be no valid trial on a charge of felony without a plea of not guilty. (1 Bishop New Cr. Proc., sec. 773) for there is then no issue for trial. (12 Cyc., 344; 2 Ency. PI. & Pr. 770.) Assuming this to be the correct rule as applicable to procedure in a felony case we need not discuss what it would be in a misdemeanor case, for the defense in the assault case was an alibi. If not guilty upon this defense of the felonious assault the defendant was not guilty of any of the lesser degrees of the crime there charged, and for that reason the failure to prove issue with reference to the felonious assault would raise no presumption of issue for trial of a misdemeanor. We are therefore of the opinion that the verdict is not sustained by the evidence in the absence of proof of joinder of issue in the assault case and that the court erred in. overruling defendant’s motion for a new trial upon this ground.

2. It was contended by the prosecution that Wilde and his partner commenced cutting ice on December 30th and two of the witnesses for the state so testified and that it continued for a period of and took ten days to complete the work and that they quit on January 8, 1908. This testimony would place Wilde at the place of cutting the ice at least until the night of January 8th. Testimony was offered by the defendant to show that Wilde started for Cheyenne in the morning and that he arrived in Cheyenne at about 7 p. m. of that day. This offer was rejected. The evidence tends to show that the cutting of the ice was immediately under the supervision and direction of Wilde from the time the work commenced until completed. The witnesses agree that the period of ten days was consumed in putting up the ice. The witnesses for the defense testified that the work commenced on December 23rd, and was continuous-, except one Sunday, the crew laid off and spent in Hartville. The witnesses for the state testified that the work commenced December 30th, was continuous and lasted for a period of ten days and that the crew laid off and spent one Sunday in Hartville and that Wilde was injured on January 2nd. It is apparent that if Wilde had personal charge and supervision of the ice crew continuously from the time it commenced work until it quit then the ice crew was not at work on January 8th if he was on his way to Cheyenne on that day and this would have a material bearing upon the state’s theory that the work commenced on December 30th and that Wilde was injured on January 2nd instead of on December 25th as contended by Wilde. We are of the opinion that the court erred in rejecting the testimony.

3. The coúrt refused defendant’s request to instruct the jury that the material averments of the information as to the incidents of the 23rd and the 25th of December must he proved beyond a reasonable doubt and that if they entertained any reasonable doubt that those incidents became material on the assault' case they must acquit. The refusal of the court to so instruct is here assigned as error.

It is admitted by plaintiff in error in his brief that where there is no dispute in the proof bearing upon the materiality of the evidence upon which perjury is assigned its materiality is for the court. It is so held by this court in Dickerson v. State, supra. When, however, the question as to whether such evidence was given is,in dispute the question as to whether it was given is a question of fact for the jury and its materiality if the jury find that it was given is one for the court. It is referred to in the decisions and text books in the latter case as being a mixed question of law and fact, hut in so far as its materiality is concerned it still remains one of law. The testimony upon which the materiality of such evidence depends if in dispute must be submitted to the jury for it is then a question of fact and properly comes within the province of the jury. The evidence bearing upon the materiality in the case here was not in dispute for the testimony given as charged in the information was not disputed upon the trial and the court erroneously ruled upon its materiality in the case in which it was givén in the absence of proof of issue therein, basing its ruling alone upon the evidence given in that case and here introduced. It follows that the refusal to instruct as requested was proper upon the record here presented since it was not shown that issue was joined in the assault case.

4. It is here urged that the court erred in giving instruction No. 1 at the request of the state. There was no objection or exception to the giving of this instruction. The question is not for that reason here for review and need not be considered.

5. The court at the request of the state over the objection of the defendant gave to the jury the following instruction, viz:

“If you find from the evidence beyond a reasonable doubt that the defendant was sworn as a witness by T. J. Fisher, Clerk of the District Court of the First Judicial District, on a trial of a charge of felonious assault with intent to commit rape between the State of Wyoming as plaintiff and Anthony Wilde as defendant, pending before the District Court of the First Judicial sitting in and for the County of Laramie and the State of Wyoming; that T. J. Fisher was Clerk of said court at said time; that said oath was in compliance with law; that upon said trial the defendant testified upon oath in substance and effect that Anthony Wilde with a crew of men began putting up ice at the ice house of Fletcher and Wilde on the 23rd day of December, 1907; or that the said Anthony Wilde was present when said ice was being put up at the ice house of Fletcher and Wilde on the 25th day of December, 1907, and that he was injured at said place when said ice was being put up on said 25th day of December, 1907; and that said testimony was false and that defendant knew it to be false at the time he so testified, then you must find the defendant guilty.” The averment in the information that the defendant “did then and there appear as a witness * * * and was in due- form of law sworn by said court having competent authority and fqll power to administer to him the oath of a witness before said court” was supported by proof that the oath was administered by the court through and by its clerk. The court usually acts in such matters by its clerk who is authorized to administer such an oath (sec. 5157, Comp. Stat.) and in doing so he acts under the direction of the court. (Sec. 4281, Comp. Stat.) The error is not inherent in the instruction but in giving it at all upon the facts as disclosed by the record. In the absence of proof of issue in the assault case the evidence was insufficient to support the verdict here and it became wholly immaterial as to where Wilde was or what occurred on the 23rd or 25th of December. Whether Wilde was injured of was putting up ice on the 25th could not be material in the absence of proof of such issue.

6. Objection was made to the evidence of the official stenographer as to what the defendant here and the prosecu-trix in the assault case swore to upon the trial of that case on the ground that the stenographer did not testify that the translation of his stenographic notes was correct or that the stenographic notes of the evidence were correct. Inasmuch as the judgment must be reversed and a new trial granted upon other grounds without discussing this question at length we suggest that it is safer to lay a complete foundation for the admission of such testimony by inquiry as to the correctness of the notes from which the stenographer is permitted to read. Carefulness and prudence should be the guide of a prosecutor so as to avoid a question or mistake that might result in rendering futile his efforts to secure a valid conviction.

Eliminating the question of the competency of the stenographer’s notes upon the showing made by this record we are of the opinion that for other reasons hereinbefore stated the judgment-should be reversed and that the case should be remanded for a new trial. Reversed.

Beard, C. J., and Potter, J., concur.