State v. Buckley

22 P. 838, 18 Or. 228, 1889 Ore. LEXIS 87

• Court: Oregon Supreme Court
• Decided: December 10, 1889
• Status: Published

Opinion

Stkahan, J.

It will be seen from the foregoing statement that the defendant was convicted of the crime of perjury on proof of his own contradictory statements in reference to the same transaction, made on several occasions when he was not under oath, and finally when he was examined as a witness in the police court. When he was not under oath he made statements to the police officers of the city of Portland tending to show that one Brown had made a felonious assault upon him with a knife; but, when the charge against Brown was examined in the police court, and the defendant was sworn aDd examined as a witness, he said he could not remember who cut him in the abdosnen, nor could he remember the facts or circumstances attending the same; and it is upon these statements, under oath, that he did not remember, that the perjury is assigned.

Numerous common law authorities hold that upon an indictment for perjury there must be two witnesses. One alone is not sufficient, because there is in that case only one oath against another. U. S. v. Wood, 14 Pet. 430, where many authorities are collated. But it is said (1 Greenl. Ev. § 257:) “But this strictness has long since been relaxed; the true principle of the rule being merely this: that the evidence must be something more than sufficient to counterbalance the oath of the prisoner and the legal presumption of his innocence.” But our own statute (Hill’s Code, § 778) has prescribed the quantum of evidence necessary to a conviction in this class of cases as follows: ■ • Usage, perjury and treason shall be proved by the testimony of more than one witness; usage, by the testimony of at least two witnesses; treason, by the testimony of two witnesses to the same overt act; and perjury, by the testimony of two witnesses, or one witness and corroborating circumstances.” But it must be observed that the real contention in this case is whether or not the conviction can be sustained on proof of the taking of the bath, the making of the statements upon which the perjury is assigned, followed by proof that at other times the defendant, when not under oath, made statements, the legal effect of which was to contradict his sworn statements, and on that subject the authorities all seem to be one way. 1 Greenl. Ev. § 259, says: “If the evidence adduced in proof of the crime of perjury consists of two opposing statements of the prisoner, and nothing more, he cannot be convicted; for, if one only was delivered under oath, it must be presumed, from tile solemnity of the sanction, that that declaration was the truth and the other an error or a falsehood, though the latter, being inconsistent with what he has sworn, may form important evidence, with other circumstances, against him.” And it is said, when a defendant has made two distinct statements under oath, one directly the reverse of the other, it is not enough to produce the one in evidence to prove the other to be false. 2 Whart. Crim. Law, § 2275. Schwartz v. Commonwealth, 27 Grat. 1025, is a very ably reasoned case, fully sustaining the same doctrine.

No doubt the prisoner committed perjury by swearing to an untrue statement as a witness, or he told a falsehood when he narrated his experience to the police officers; but in such case, because of the solemnity of an oath, credit is to be given to the statement made under oath, rather than to the one not under oath.

If it had been proven upon the trial that Brown did in fact stab the defendant in the abdomen, then it might have been claimed that the case was brought within the principle of U. S. v. Brown, 21 Pac. Rep. 461. There the main fact out of which the alleged false statement grew was abundantly established by the evidence, so that the court had before the jury the defendant’s contradictory statements,' as well as clear proof that- the fact about which the false statement under oath was made did exist. People v. Burden, 9 Barb. 469, was relied upon by the State. In that case, which was decided by a divided court (Selden, J., dissenting), much stress was laid on the fact that the contradic tory statements were- both in writing, a distinction which is not obvious to us; but, if sound, the case itself is one at variance with the English rule, and is unsupported by the adjudged cases,' as well as text-writers in this country. To convict of the crime of perjury, the statute, which we cannot disregard, prescribes the amount of evidence requisite. There must be at least one witness and corroborating circumstances; that is, one witness testifying to the main fact in issue, and then another witness, or corroborating circumstances, tending to prove the main fact. What is meant by corrobrating evidence in this connection is evidence aliunde,—evidence which tends to show the perjury independent of the prisoner’s declarations. Schwartz v. Commonwealth, supra; Gabrielsky v. State, 13 Tex. App. 428.

This view of the law requires a reversal of the judgment of the court below, and that the cause be remanded for a new trial.