WILBUR K. MILLER, Circuit Judge.
Blériot H. Lamarre and the appellant, Bennett E. Meyers, were jointly indicted for violating the District of Columbia statute 1 which denounces perjury and subornation thereof. Three counts of the indictment charged Lamarre with as many separate perjuries in his testimony before a subcommittee of a committee of the United States Senate constituted to investigate the national defense program, and three more counts accused Meyers of suborning the perjuries of his codefendant.
Lamarre pleaded guilty to all three charges when he was arraigned on December 19, 1947, a few days after the return of the indictment. Meyers entered a plea of not guilty and was tried before a jury in the District Court of the United States for the District of Columbia. At the conclusion of the government’s evidence, he moved for a judgment of acquittal, which the court denied. Meyers did not take the stand or introduce any evidence. Having been found guilty under each of the three counts against him, he appeals.
Meyers was an officer in the United States Army. In 1939, while stationed at Wright Field, near Dayton, Ohio, he organized under the laws of Ohio a corporation called Aviation Electric Corporation, and paid into its treasury the sum of $500 to cover its authorized capital consisting of 250 shares of common stock having a par value of $2 each. At his direction, a certificate for 224 shares was issued to Miss June Ballaou, an employee at Wright Field, and the remaining shares were divided between one David Johnson and one Robert L. Pine. The newly organized company engaged in manufacturing parts and accessories for airplanes, and soon had on hand orders from the Signal Corps of the United States Army aggregating about $20,000.
The appellant had become acquainted with Lamarre and his wife as early as 1936 or 1937 and apparently was fond of them. Late in 1939, he went to see Lamarre in California, where the latter was employed by an airplane company, and suggested that he come to Dayton to become associated with Aviation Electric in an executive capacity. The invitation was accepted and in January, 1940, Lamarre was made secretary-treasurer of the corporation and the Ballaou certificate for 224 shares was transferred to him without valuable consideration. A few months thereafter he became president of the company.
From its modest beginning in 1939 the operations of Aviation Electric Corporation expanded substantially and rapidly. It obtained contracts to furnish parts to large corporations engaged in producing aircraft for the United States Army. Meyers advanced considerable sums for working capital and took therefor the company’s promissory notes which were secured by the pledge and delivery to him of certificates, endorsed in blank, evidencing all its capital stock.
The appellant was transferred to Washington in 1941 and the next year became Deputy Chief of Procurement of Aircraft and Aircraft Parts for the Army Air Force. Meanwhile, Aviation Electric was operating successfully and profitably so that by the end of 1942 all Meyers’ loans had been repaid. Large profits were earned as long as the war continued, but the termination of actual hostilities so reduced the demand for its products that the corporation was dissolved in September, 1946.
Desiring to ascertain whether there had been instances of waste, fraud, corruption, mismanagement, excessive profits or inefficiency in the nation’s war effort, entailing as it did the hurried expenditure of billions of dollars for national defense, the United States Senate created the investigating committee to which reference has been made. In the course of an inquiry into government contracts with a large airplane supplier, the appellant testified before that committee. It developed during the hearing that Aviation Electric Corporation had been a sub-contractor on government work and that Lamarre had been its president from 1940 until its dissolution in 1946. In order to ascertain what connection, if any, the appellant had had with Aviation Electric, the subcommittee subpoenaed Lamarre, who testified on Saturday, October 4, and Monday, October 6, in 1947. That testimony [803]*803brought about the indictment which was the genesis of the case now before us.
Three of the indictment’s counts charged that Lamarre: (1) knowingly and willfully-testified falsely that Meyers “was not financially interested in or connected with the Aviation Electric Corporation of Dayton and Vandalia, Ohio,” during the years 1940 to 1947, inclusive; (2) knowingly and willfully testified falsely that a Cadillac automobile purchased in Washington by Meyers, and paid for bg Aviation Electric Corporation, was purchased for the corporation and for its use; (3) knowingly and willfully testified falsely that the sum of $10,-000, paid by means of Aviation Electric’s checks, for decorating and furnishing Meyers’ Washington apartment “was a gift from himself, Blériot H. Lamarre.”
Although the appellant was convicted on three counts, each of which charged him with suborning one of Lamarre’s perjuries, he received only one sentence.2 That being true, the judgment must be affirmed if appellant was properly convicted on any one of the three counts against him.3 We shall consider, nevertheless, appellant’s assignments of error with respect to all the counts.
1. As to Meyers’ financial interest in or connection with Aviation Electric Corporation.
On this subject, the first count of the indictment includes the following: “ * * * In jhe course of his [Lamarre’s] testimony it became material whether Bennett E. Meyers was financially interested in or connected with the'Aviation Electric Corporation of Dayton and Vandalia, Ohio, during the years 1940, 1941, 1942, 1943, 1944, 1945, 1946, or 1947; and being questioned in that regard, Blériot H. Lamarre on October 4 and October 6, 1947, and in the District of Columbia wilfully and contrary to his said oath testified falsely that Bennett E. Meyers was not financially interested in or connected with the Aviation Electric Corporation of Dayton and Vandalia, Ohio, during those years or any of them, whereas in truth, as Blériot H. Lamarre knew, Bennet E. Meyers was imam daily interested in and connected with the said Aviation Electric Corporation during each and all the years 1940,1941, 1942, 1943, 1944, 1945, 1946 and 1947.”
Appellant’s counsel earnestly assert and ably argue that Lamarre did not testify before the subcommittee that Meyers was not financially interested in or connected with Aviation Electric; but that, quite to the contrary, Lamarre told the subcommittee Meyers actually owned the business. If that contention be well founded, it is a complete defense to the charge that Meyers suborned the perjury alleged in the first count. It is elementary that one cannot be convicted of suborning a perjury which was not in fact committed; that is to say, there can be no subornation of perjury if there was no perjury. It is equally true that one cannot be convicted of suborning perjury if the alleged perjurious statement actually was not made by the alleged per-juror.
[804]*804No matter how unorthodox, unpatriotic, reprehensible or criminal the evidence may tend to show Meyers’ conduct to have been, his conviction under the first count cannot stand if Lamarre did not in fact testify as the count charged that he did. So, at the threshold of our consideration of the first count, we must decide whether Lamarre in fact told the subcommittee Meyers was not financially interested in or connected with Aviation Electric. If it be found that he did so testify, then it will be pertinent to see whether the statement was true or false; and, if false, whether Meyers suborned it.
Whether Lamarre represented to the subcommittee that Meyers was not financially interested in or connected with the company is to be determined by finding the meaning or significance which is fairly attributable to all Lamarre’s testimony before the subcommittee. A stenographically reported record of that testimony was put in evidence and is before us.
Appellant's insistence -that Lamarre did 'not say what the first count charged him with saying, but said exactly the opposite, is based on the fact that Lamarre was asked this question, “So you understood all of the time that for all practical purposes, he [Meyers] owned the business?”; and that Lamarre answered by saying, “That is right,” and then continued with other statements to that effect.
This bit of testimony, taken from its context and read without reference to or consideration of the remainder of Lamarre’s evidence, supports appellant’s contention that, regardless of the truth or falsity, of the statement which the first count attributed to Lamarre, he simply did not say what he is alleged to have said, but definitely stated exactly the contrary. So, if Lamarre’s answer to the quoted question were all he said on the subject, we should have no difficulty in accepting appellant’s argument, and in holding that Lamarre did not commit the first perjury charged against him and that, therefore, Meyers was wrongly convicted of suborning it.
We turn first to the subcommittee counsel’s examination of Lamarre, in the course of which he made the statement upon which appellant now relies as a defense to the first count, in order to see whether the context4 of the statement limits the absolute [805]*805meaning which it appears to have when standing alone. The setting in which the statement appears shows that in making it Lamarre was referring to the occasion in 1940 when a large part of the stock had just been transferred to him and endorsed back to Meyers to serve as collateral. It is, however, perfectly clear from the evidence as a whole that Lamarre did not intend to be understood as meaning that from 1940 until 1947 Meyers was for all practical purposes the owner of the business. For example, when Lamarre was asked, “It [the stock] belonged to Meyers all the •time?”, he answered, “No, sir, it did not.” He was then asked, “Well, then, when did it become yours, actually yours ?” and he replied, “When the notes were paid off.” He added, “It had always been mine as a matter of fact.”
Even if this were not so, and if it be conceded arguendo that Lamarre unqualifiedly stated with respect to the entire period involved that Meyers had no financial interest in or connection with the corporation, it would remain true that he also later testified to the subcommittee that Meyers had no interest at any time after Lamarre’s association with the company began except as a creditor, and that he ceased to have even that interest after 1942.5 The criminal nature of perjury is not removed, the Supreme Court has said, by the fact that the perjurer later in the proceeding states the truth; that is to say, recantation following perjury does not destroy its criminality. United States v. Norris, 1937, 300 U.S. 564, 573, 57 S.Ct. 535, 81 L.Ed. 808. We see no reason why the principle should not apply with even greater force when perjury follows truthful testimony and so is the last and unrecanted choice of its author. In the present case, even if the true statement (that Meyers was for all intents and purposes the owner of the business) be given the full implication and effect which appellant finds in it, and so be regarded as applying to all the years involved, it was followed by falsehood when Lamarre emphatically and repeatedly swore Meyers had no sort of interest in the company after 1942. His last choice was perjury.
From the quotations shown in the margin as note 3, it will 'be observed that, just before making the statement which appellant says absolves him, Lamarre stated, “I would not say” it was Meyers’ stock. And shortly after having made the statement upon which appellant relies, Lamarre insisted that the endorsed certificates were held for Meyers only so long as the company owed him money, that he considered the stock as income to himself, that it did not belong to Meyers all the time but actually became his [Lamarre’s] when the notes were paid.6 Although he had given no consideration to Meyers or to any other person [806]*806for the shares transferred to him at Meyers’ instance, he told the senators, “It had always been mine as a matter of fact” and •that he felt under no obligation to pay Meyers for it.
A reading of all Lamarre’s testimony on the subject shows convincingly and beyond any doubt that he was trying to get the subcommittee to believe Meyers had no actual or beneficial stock ownership in the company, and that he bore to it merely the relation of creditor, a relation which ended in 1942. This is true despite the fact that he said he understood Meyers owned the company for all practical purposes. That statement may not be isolated and thereby given a meaning wholly different from the clear significance of the testimony considered as a whole. Appellant himself states the law to be that a charge of perjury “may not be sustained by the [807]*807device of lifting a statement of the accused out of its immediate context and thus giving it a meaning wholly different than that which its context clearly shows.” He cites Fotie v. United States, 8 Cir., 137 F.2d 831, and other cases to the same effect. The principle is sound, but has no application here. It is the appellant who seeks to sustain his defense “by the device of lifting a statement of the accused out of its immediate context and thus giving it a meaning wholly different than that which its context clearly shows.” Since a charge of perjury may not be sustained in that manner, it follows corollarially that a defense to a charge of perjury may not be established in that fashion.
From the evidence as a whole we have no difficulty in concluding that Lamarre told, and intended to tell, the subcommittee that Meyers held no stock in the company, either actually or beneficially, after the shares were issued to Lamarre in 1940; that Meyers had no interest of any kind after that except he was a creditor and held the capital stock as collateral; and that after 1942 Meyers had no sort of interest in or connection with the company. Having so determined, it is next necessary to ascertain whether that statement was false and known to be false to Lamarre when he testified, so as to stamp it as perjury.
Not only did Lamarre plead guilty to the charge of perjury made against him because of his representation to the subcommittee that Meyers was not interested in or connected with the corporation; he also testified fully and freely at Meyers’ trial that he Had knowingly and willfully falsified in that respect before the subcommittee, and that in fact Meyers was at all times the real owner of the company.
Lamarre testified further at the trial that, during the years involved, his own salary as secretary and treasurer, and later as president, was fixed at sums varying from $20,000 to $30,000 per annum and that it was so shown on the books of the corporation. Company checks were regularly drawn to Lamarre’s order in payment of his ostensible salary but in fact he was allowed to keep as his own only a modest compensation. By far the larger part of the salary credited to Lamarre on the books of the corporation was remitted by him to Meyers, usually in the form of cashiers’ checks. A similar arrangement was followed with respect to the salary of T. E. Readnower, Lamarre’s brother-in-law, whose apparent salary was $18,600, of which some $15,000 went to Meyers. By this device and other subterfuges, such as the purchase of an automobile and the furnishing of an apartment, Meyers received more than $150,000 from the company during the years involved, in addition to the repayment to him of the sums which he advanced from time to time for working capital. The checks by which Aviation Electric paid the purported salaries, and the cashiers’ checks by which the money was transmitted to Meyers, were in evidence and in our view constitute sufficient corroboration of Lamarre’s testimony that he testified falsely before the subcommittee.
Meyers’ subornation of this perjury was proved by the evidence of Lamarre that on the day before his first appearance before the subcommittee the appellant instructed him to swear “Meyers had no financial interest or any other interest other than the money that he had loaned to the corporation and which had been repaid to him by the middle of 1942.” It thus appears that, contrary to appellant’s contention, the evidence showed Lamarre actually made the statements and representations to the subcommittee which the first count charged; that his testimony was false and was given knowingly and willfully; and that Meyers suborned the perjury. ■
2. As to the count which charged Lamarre with perjury concerning the purchase of the Cadillac automobile.
As to this count7 the indictment charged the following: “ * * . * In the course of his [Lamarre’s] testimony on these dates it became material whether a Cadillac automobile which he testified Bennett E. Meyers had purchased with funds of the Aviation Electric Corporation of Dayton and Vandalia, Ohio, on or about January 1, 1942, had been purchased for [808]*808the personal use of Bennett E. Meyers or for the use-of the said Corporation. The fact was, as Blériot H. Lamarre then knew, that that automobile had 'been purchased for the personal use of Bennett E. Meyers. Blériot H. "Lamarre nevertheless wilfully and contrary to his said oath testified falsely before the subcommittee on the dates and at the place aforesaid that that Cadillac automobile had been purchased for the Aviation Electric Corporation and for the use of the Aviation Electric Corporation.” With respect to this charge the appellant makes in his brief the following categorical comment: “The transcript disclosed that Lamarre had given no testimony whatsoever that the car had, or had not, 'been purchased for the personal use of Bennett _E. Meyers or for the use of the said Corporation.’ Thereds not a word in this transcript of any testimony by Lamarre, false or true, that the car referred to had been purchased for the personal use of appellant or for the use of the Corporation.” A factual issue is thus raised which is to be resolved by resorting to the record.
Lamarre swore to the subcommittee that at the end of 1941 he asked General Meyers to buy an automobile for him and that Meyers did buy in Washington the Cadillac sedan; that it remained in Washington for several weeks because when he came for it the weather was bad and he was forced to return to Dayton on a train. He also testified substantially as follows: he left the car with Meyers until he later was able to transport it to Dayton, where it was used as the company car 8 'by him and Curnutt, Meyers’ father-in-law, who also was an Aviation Electric employee. Aviation Electric paid for the* automobile and carried it on its books as an asset until 1944 or 1945, when Curnutt bought it from the company at its then book value of $1,400. The sale was made because the company had no further use for the car. It is, therefore, plain that Lamarre told the subcommittee substantially what the second count of the indictment charged.
At the trial Lamarre testified that his statements to the subcommittee were false and that in truth Meyers telephoned him from Washington and instructed him to send a company check for approximately $3,000 as he wanted to purchase a Cadillac; that the check was sent and the automobile was purchased but that the company never had possession of it.
There was ample corroboration of Lamarre’s testimony that the automobile was bought for and used by Meyers. The manager of the garage at Hotel 2400, where Meyers’ apartment was located, testified that early in 1942 the appellant stored in the hotel garage a new 1942 blue Cadillac which he kept there until he left on August 27, 1944. The car was kept as “live storage,” meaning that it was cleaned nightly and used almost daily by Meyers or his wife. The storage was charged to Meyers and the garage manager never saw anyone drive the car other than Meyers and his wife.
Calvin Mettee, who was a corporal in the army, testified he was assigned to the appellant as a chauffeur in the spring of 1942. He told of the new blue 1942 Cadillac being in the hotel garage and that it was his duty [809]*809to see that the car was clean, brushed out and ready to go at all times. During the year 1942 it was never out of the garage for longer than a week. If 'bore District of Columbia license tags during 1942, 1943 and 1944. When Meyers married again in 1943, the witness was instructed to explain to Mrs. Meyers how to drive the blue Cadillac. Mrs. Meyers personally used the car in 1943 and at times the witness would drive her on shopping tours or to social functions. It was stored in the hotel garage thoughout the year 1943 and until the summer of 1944 when Meyers was transferred to Wright Field. Mettee was transferred there also. At Meyers’ direction he flew in an army airplane from Dayton to Washington in order to drive the blue Cadillac to Dayton where he delivered it to Meyers’ quarters. At appellant’s order, he arranged for the transfer of the title of the automobile, from Curnutt to Meyers or his wife. The car was constantly in appellant’s possession while at Wright Field. When Meyers retired from active service in 1945, he directed Mettee to drive the 1942 Cadillac from Dayton to his residence at Bayville, Long Island, which was done..
In the latter part of October, 1947, after Mettee had been released from the army, he went from his home in Rochester, Pennsylvania, to Huntington, New York, to see Meyers, at the latter’s request. At Meyers’ suggestion he registered at the hotel under an assumed name. Meyers told him that he was being investigated and that Lamarre was trying to blackmail him. He asked Mettee to testify, if he were questioned, that he had obtained from Lamarre authority to drive the blue Cadillac on the occasions when he did drive it, and to say that during the winter of 1942 and 1943 Lamarre drove the car from Dayton to Washington but due to heavy weather he could not return and was forced to leave the car in Washington, and that the witness did not know how the car was taken to Dayton. Meyers told him that if his testimony concerning the automobile turned out to be of any value he would give him $2,000.
Proof of subornation was furnished when, with respect to a conversation between Meyers and Lamarre in a hotel lobby on October 3, 1947, Lamarre was asked, “Was there any discussion about a Cadillac automobile?”, to which he answered: “I was to say that the Cadillac automobile was purchased for the company by Meyers on my instructions and that I had gone to Washington a few weeks after the car was delivered and I had driven it back to Dayton, and that on several occasions I had driven the car to Washington, but because of bad weather I had gone back on the train and it remained here in Washington for some time and then later on when I came in again I would pick the car up and drive it home.” He was then asked, “Was that the truth?”, to which he replied, “No, it was not.”
Our conclusion is that the second count was sustained. Lamarre testified to the subcommittee in the manner charged; his testimony was admitted by him, and otherwise proved, to be false; and evidence was introduced that Meyers suborned the perjury.
3. As to furnishing and decorating the apartment.
On this subject the pertinent portion of the indictment is as follows: “ * * * In the course of his [Lamarre’s] testimony on these dates it became material whether the cost of redecorating the apartment of Bennett E. Meyers at 2400 Sixteenth Street, N. W., Washington, D. C., in the year 1941, in the approximate amount of $10,000 had been paid for out of the funds of the Aviation Electric Corporation of Dayton and Vandalia, Ohio. Knowing the facts to be that it had, Blériot H. Lamarre wilfully and contrary to his oath falsely testified before the subcommittee on the dates and at the place aforesaid that the aforesaid redecoration and cost of redecoration of the said apartment of Bennett E. Meyers was a gift from himself, Blériot H. Lamarre.”
During his appearance before the subcommittee on the morning of Saturday, October 4, 1947, Lamarre said he had never made Meyers a present of a value of more than $100 and that all gifts from him and his wife, such as those made at Christmas, amounted to no more than $400. After lunching with Meyers and one of the latter’s attorneys, he volunteered at the be[810]*810ginning of the afternoon session this statement: “There is one thing I would like to say before we proceed. That is, you laid a great deal of stress this morning on what you called gifts to General Meyers. I would like to amplify my statements on that, because at the time I did not consider it a gift, but it was after General Meyers had come to Washington, he had an apartment decorated, and I paid for the decoration of that apartment, and the furnishings.” 9
He said to the subcommittee that the cost of furnishing the apartment was paid by Aviation Electric checks, which was true; but he sought to transform the transaction from a company expenditure into a personal gift from him by belatedly charging it to his own salary account, after originally charging it to expense. It was indeed true, therefore, as 'he told the senators, that the checks, although drawn by the company, were charged against his personal salary.
At the trial of Meyers, Lamarre admitted the expenditure was by the company and not by him. His confession was corroborated because the essential falsity of his testimony before the subcommittee is shown in this: although bookkeeping entries were made to charge $10,000 to his salary account, that account itself was false, and fraudulently set up.
His actual and comparatively meagre salary could not cover the decorating cost. [811]*811There was no real difference in result to the company between the device of setting up a fictitious salary and remitting most of it to Meyers in cashiers’ checks, and the device of charging to a fictitious salary account company checks drawn for Meyers’ personal benefit. The latter was simply another method of secretly channeling Aviation Electric’s money to Meyers. The company’s books and cancelled checks furnish corroboration of Lamarre’s testimony that he had sworn falsely with respect to furnishing the apartment. Moreover, Miss Davis, the decorator, told the jury she dealt with Meyers only, although Lamarre told the subcommittee he informed her of his desire to present the appellant with the cost of the decoration. Miss Davis said Meyers told her “that he would give me checks on a little company that he owned or had an interest in — I don’t remember just the words, but they satisfied me enough so that I was willing to take the check.” She added that he gave her the name of the company as “the Aviation Electric Corporation of Dayton or Vandalia.”
Appellant asserts Lamarre’s characterization of the payment as a gift was made under the prodding of the subcommittee; a partially true but wholly immaterial assertion.10 He originally and voluntarily described the transaction so that in law and in the fair meaning of language it amounted to a gift even though he disliked the word. Lamarre was reluctant to use the word “gift” only because he thought of a gift “as some item you give a man,” and his position before the subcommittee was that the $10,000 was a payment of a moral obligation, a return due because of Meyers’ favors to him. Moreover, as has been pointed out, Lamarre entered a plea of guilty with respect to this charge. As he had done with respect to the first two counts, Lamarre testified that he committed this perjury at Meyers’ suggestion and solicitation.
From what has been said, we find the third count to have been established. Lamarre gave before the subcommittee the testimony charged as perjury; its falsity was proved by him and by corroborative evidence; and there was proof that Meyers suborned it.
In addition to his reasons for reversal which have been discussed and disposed of in the foregoing portion of this opinion, appellant argues his conviction should be set aside because the subcommittee before which Lamarre gave his perjured testimony was not lawfully constituted as such, and therefore was not “a competent tribunal” spoken of by the perjury statute. He discerns a variance between the indictment’s allegation that the Senate committee “on April 19, 1947, created a subcommittee” and the proof from the committee chairman and counsel that a subcommittee was created in mid-April by the chairman, who announced to the full committee the names of the senators whom he had appointed as members of it. Appellant says the subcommitte was invalid because it was not created by a resolution of the full committee. The argument lacks substance because the evidence shows it is the unvarying practice of the Senate to follow the method of creating and appointing subcommittees which was employed in this" instance. After consideration of all appellant’s points with respect to the subcommittee sitting on October 4, we conclude that it was legally constituted.
The argument that a quorum was not present on October 4, 1947, because only one of the three senators then present had been among the five originally appointed in April, obviously confuses the creation of the subcommittee with the appointment of its personnel. On October 6, 1947, however, only two senators were present at the hearing. Since they were a minority of the subcommittee, they could not legally function except to adjourn. For that reason, the testimony of Lamarre given on that day cannot be considered as perjury nor can appellant be convicted of suborning it.
[812]*812But practically all Lamarre’s testimony was given on October 4, when a quorum was present. The proceedings of that day contain the perjurious statements described in all three counts, and his examination on October 6 was largely repetitious.
A further ground for reversal is the court’s alleged error in denying appellant’s motion before trial to dismiss the indictment. It is asserted that the section of the District of Columbia Code, under which the indictment was laid, “has nothing whatever to do with any perjury or subornation of perjury committed in connection with an inquiry by a committee of the House of Representatives or Senate of the United States.” In other words, appellant says only the federal perjury statute, 18 U.S.C.A. §§ 231, 232 [1948 Criminal Code, 18 U.S.C.A. §§ 1621, 1622], was applicable. To accept the argument would be to overrule our decisions in O’Brien v. United States, 1938, 69 App.D.C. 135, 99 F.2d 368, and Behrle v. United States, 1938, 69 App. D.C. 304, 100 F.2d 714, which we are not prepared to do.
Appellant’s assignment of error concerning the court’s conduct, his criticism of the court’s charge to the jury, and his com'plaint concerning government counsel’s argument to the jury, do not impress us as requiring discussion; but we deem it proper to refer, as briefly as possible, to the proposition advanced in the first division of the dissenting opinion which is filed herewith.
At the opening of the dissent it is said, "The testimony given by Lamarre before the Senate Committee was presented to the jury upon the trial in so unfair and prejudicial a fashion as to constitute reversible error.”
The reference is to the fact the William P. Rogers, chief counsel to the senatorial committee, who had examined Lamarre be-for the subcommittee and consequently had heard all the testimony given by him before that body, was permitted to testify as to what Lamarre had sworn to the subcommittee. Later in the trial the government introduced in evidence a stenographic transcript of Lamarre’s testimony at the senatorial hearing.
In his brief here the appellant characterizes this as a “bizarre procedure” but does not assign as error the reception of Rogers’ testimony. The dissenting opinion, however, asserts it was reversible error to allow Rogers to testify at all as to what Lamarre had said to the subcommittee, on the theory that the transcript itself was the best evidence of Lamarre’s testimony 'before the subcommittee.
That theory is, in our view, based upon a misconception of the best evidence rule. As applied generally in federal courts, the rule is limited to cases where the contents of a writing are to be proved.11 Here there was no attempt to prove the contents of a writing; the issue was what Lamarre had said, not what the transcript contained. The transcript made from shorthand notes of his testimony was, to be sure, evidence of what he had said, but it was not the only admissible evidence concerning it. Rogers’ testimony was equally competent, and was admissible whether given before or after the transcript was received in evidence. Statements alleged to be perjurious may be proved by any person who heard them, as well as by a reporter who recorded them in shorthand.
A somewhat similar situation was presented in Herzig v. Swift & Co., 146 F.2d 444, decided by the United States Couit of Appeals for the Second Circuit in 1945. In that case the trial court had excluded oral testimony concerning the earnings of a partnership on the ground that the books of account were the best evidence. After pointing out the real nature and scope of the best evidence rule,12 the court saidj 146 F.[813]*8132d at page 446: “ * * * Here there was no attempt to prove the contents of a writing; the issue was the earnings of a partnership, which for convenience were recorded in books of account after the relevant facts occurred. Generally, this differentiation has been adopted by the courts. On the precise question of admitting oral testimony to prove matters that are contained in books of account, the courts have divided, some holding the oral testimony admissible, others excluding it. The federal courts have generally adopted the rationale limiting the ‘best evidence rule’ to cases where the contents of the writing are to be proved. We hold, therefore, that the district judge erred in excluding the oral testimony as to the earnings of the partnership.”
A contention identical with that made in the dissenting opinion here was rejected by the United States Court of Appeals for the Second Circuit in 1912 in Brzezinski v. United States, 198 F. 65, 66. In that opinion the court said: “The first fact for the government to prove was the giving of the testimony charged in the indictment. It called the stenographer who took the notes of the proceedings before the grand jury. He testified that he took down the questions and answers that were put to Brzezinski on that day; that he made a transcription in typewriting from the notes, made this transcription himself, did not dictate it. * * * An assistant United States attorney who was present in the' grand jury room also testified to the substance of what Brzezinski said on that occasion. It is contended that the court erred in admitting this testimony on the ground that it was ‘not the best evidence.’ This is a frivolous objection. Any one who has heard an oral statement made and remembers it may testify to what was said. $ * »
The Court of Appeals for the Third Circuit held, in Re Ko-Ed Tavern, 1942, 129 F.2d 806, 810, the best evidence rule does not have the application which the dissent here seeks to give it: “As to Light’s half ownership of the bankrupt corporation, William Kochansky, president of the company, testified at the hearing before the referee that he and Light each owned fifty per cent of the capital stock of the corporation but that no stock certificates had ever been issued to either of them. The appellant objected to this testimony on the ground that the books of the 'bankrupt corporation were the best evidence of the matter under inquiry and that the parol evidence offered was inadmissible because the nonproduction of the books had not been satisfactorily explained. It is quite apparent that the appellant misconceives the scope of the ‘best evidence’ rule. That rule is applicable when the purpose of proffered evidence is to establish the terms of a writing. See 4 Wigmore on Evidence, 3rd Ed., § 1178. In this case there was no attempt to prove by parol either book entries or the terms of written instruments. * * *»
To the same effect is Boitano v. United States, 1925, 7 F.2d 324, 325, in which the Ninth Circuit said: “ * * * it was equally competent to prove that testimony [of the plaintiff in error] by a witness who was present at the trial and heard the testimony given, regardless of whether the testimony was reported or whether it was not. 22 C.J. 344.”
As we have pointed out, there was no issue as to the contents of the transcript, and the government was not attempting to prove what it contained; the issue was what Lamarre actually had said. Rogers was not asked what the transcript contained but what Lamarre’s testimony had been.
After remarking, “ * * * there is a line of cases which holds that a stenographic transcript is not the- best evidence of what was said. There is also a legal cliche that the best evidence rule applies only to documentary evidence”, the dissenting opinion asserts that the rule is outmoded and that “the courts ought 'to establish a new and correct rule.” We regard the principle set forth in the cases which we have cited as being, not a legal cliche, but an established and sound doctrine which we are not prepared to renounce.
With the best evidence rule shown to be inapplicable, it is clearly seen that it was neither “preposterously unfair”, as the appellant asserts, nor unfair at all, to permit the transcript of Lamarre’s evidence to be introduced after Rogers had testified. [814]*814Since both methods of proving the perjury were permissible, the prosecution could present its proof in any order it chose.
There is no substance in the criticism, voiced by the appellant and in the dissent, of the fact that Rogers testified early in the unduly protracted trial and the transcript was introduced near its close. Appellant’s counsel had a copy of the transcript from the second day of the trial, and had full opportunity to study it and to cross-examine Rogers in the light of that study. The mistaken notion that, had the transcript been first put in evidence, Rogers’ testimony would have been incompetent is, of course, based on the erroneous idea that the best evidence rule had application.
It is quite clear that Meyers was in no way prejudiced by the order in which the evidence against him was introduced, nor does it appear that his position before the jury would have been more favorable had the transcript been offered on an earlier day of the trial.
The matters discussed in the second division of the dissenting opinion have been covered adequately, we think, in the earlier portion of this opinion.
Since we perceive no prejudicial error in appellant’s trial, the judgment entered pursuant to the jury’s verdict will not be disturbed.
Affirmed.