State v. Cerfoglio

205 P. 791, 46 Nev. 332

• Court: Nevada Supreme Court
• Decided: January 15, 1923
• Docket: No. 2501
• Status: Published

Opinions

By the Court,

Coleman, J.:

An order was heretofore entered affirming the judgment in this case, for the reason that no bill of exceptions had been made a part of the record. 46 Nev. 331. Thereafter counsel for the state stipulated that a bill of exceptions had been duly settled, and that the order affirming the judgment might be vacated and the case be considered upon its merits, which was accordingly ordered. This is an appeal after conviction upon a charge of perjury, alleged to have been committed during the trial of appellant for a violation of the prohibition statute.

The testimony given by appellant, and which constitutes the basis of this prosecution, is to the effect that on August 26, 1920, at the Europa Hotel, in Reno, Washoe County, several men came into the bar in said hotel and asked-for glasses with soda, and that one of them took a bottle from the inside of his coat pocket and filled the glasses with the contents thereof. A verdict of guilty was returned by the jury. In apt time, a motion for a new trial was made. The appeal is from the order denying the motion for a new trial, and from the judgment.

The first error relied upon goes to an alleged variance between the allegation in the information and the proof. The information charges that the alleged perjured testimony was given on October 6, 1920, whereas it was in fact given on the 5th day of that month. In support of the contention, we are directed to 22 Cyc. 314, where we find the following:

“Where time is to be proved by record, as on an indictment for perjury, the date must be truly laid, and a variance will be fatal. * * * Where the charge is not based on a record or other writing, and the statement alleged to have been false would have constituted perjury whether made on the date laid or on the date proven, the allegation of time is immaterial.”

The authority invoked is not in point. The charge of perjury is not based on a record or any kind of a writing, but upon oral testimony given in open court in a trial before a jury. By express statutory regulation, the precise time at which an offense was committed need not be alleged, except where or when the time is a material ingredient of the offense. Stats. 1919, sec. 205, p. 417. Such is the general rule in perjury cases. 30 Cyc. 1441; Dill v. People, 19 Colo. 469, 36 Pac. 229, 41 Am. St. Rep. 254. It is not suggested that the date of the alleged perjury is a material ingredient of the offense.

It is also asserted the trial court erred in admitting in evidence testimony tending to show the commission of three separate and distinct crimes by the defendant, other than that for which he was on trial, to wit: (1) The procuring of witnesses to testify during the trial on the charge of violating the prohibition statute to the state of facts then testified to by the defendant, and which it is charged constituted perjury on the part of the defendant; (2) testimony tending to show that appellant had procured the departure from the state of two witnesses for the prosecution, so as to be absent during the trial of appellant upon the perjury charge; and (3) proof tending to show .the guilt of defendant of having liquor unlawfully in his possession in the place wherein he was convicted of having violated the prohibition statute.

Relying upon the general rule that evidence of independent crimes cannot be admitted, except to show, among other things, motive and intent (State v. McFarlin, 41 Nev. 486, 172 Pac. 371), it is said that in the instant case none of these things was an issue. We cannot accept this statement. We think intent and corrupt motive are the very foundation of the crime of perjury. There can be no perjury, nor subornation of perjury, under our statute, unless the elements of wilfulness and corruption enter into the act. Rev. Laws, 6350. Had not the information charged wilfulness and corruption on the part of appellant in giving the alleged false testimony, it would not have charged a crime, and had the court failed to cover these elements in its instructions, no doubt counsel would be basing error thereon in this appeal. Hence we think the evidence tending to show wilful and corrupt false swearing on the part of the appellant was proper and competent, because it tended to establish one of the essential elements of .the crime itself. It is said:

“Since wilfulness and a corrupt intent are essential elements of the crime of perjury, evidence to prove such issues goes to the very substance of the offense, and is admissible.” 30 Cyc. 1444.

“Evidence is also admissible to show that the accused, in a private interview, endeavored to influence a third person to give false evidence in the same case and in respect to the same matter in which the alleged per j ury was committed.” 21 R. C. L. 274.

We think the second contention equally devoid of merit. It is now a well-recognized rule that evidence tending to show that the accused endeavored to prevail upon a witness for the state to abscond is relevant to the main issue. 12 Cyc. 398; Blair v. State, 72 Neb. 501, 101 N. W. 17.

As to the third point, the evidence showing the defendant’s possession of jackass brandy was a part of the main case, as it was a circumstance tending to show the falsity of testimony given by him. If he did not have jackass brandy in his possession at the time, he could not be guilty of perjury; hence the necessity of showing his possession of the brandy.

It is also insisted that the court erred in overruling defendant’s objection to the introduction of the testimony of the witnesses Albert and Tada, given by them in behalf of appellant in the case wherein he was on trial charged with violating the prohibition statute. To sustain the contention, it is said that we have a statute prescribing the conditions under which testimony taken upon the trial of a case may be used upon a retrial, and that it controls in this case. We cannot accede to this contention. .The purpose of the statute mentioned never contemplated the situation before us. The purpose of offering in evidence upon the trial of this case the testimony given by Albert and Tada in the other trial was to show that their testimony at that time was the same as that given by the defendant therein, and that it was false and given at the solicitation of appellant. In other words, it was to lay the foundation for proving that appellant swore falsely in that case, and that he did it wilfully and corruptly. The evidence was perfectly competent for that purpose.

It is also said that the evidence is insufficient to support the verdict; that there is not sufficient competent evidence to sustain it. Reliance is had to support this view upon the proposition that the falsity of the testimony which it is charged was perjury must be shown by at least two witnesses, testifying directly and positively, or by the direct and positive evidence of one witness, corroborated by facts and circumstances; and our attention is called to 30 Cyc. pp. 1452, 1453; People v. Chadwick, 4 Cal. App. 63, 87 Pac. 384 — 389; People v. Porter, 104 Cal. 415, 38 Pac. 88; People v. Maxwell, 118 Cal. 50, 50 Pac. 18. In 30 Cyc. p. 1452, we find the following:

“Positive and direct evidence is absolutely necessary in a perjury case; circumstantial evidence standing alone is never sufficient.”

We cannot say that we disagree with the rule contended for, but rather as to its proposed application. Does it apply to the situation in hand? This necessarily leads to an inquiry as to the true significance of the rule as stated, and as to what situation it is meant to apply. For an understanding of the type of cases to which the rule applies, we must resort to a consideration of its origin, and just what was merely meant by it as first expressed. The rule is supposed to have had its origin in the case of The Queen v Muscot, 10 Mod. Rep. 193. Extracts from this decision are given in many of the old text-books, but none of them conveys a complete idea of what was really decided. The Supreme Court of the United States, in U. S. v. Wood, 14 Pet. 430, 10 L. Ed. 527, quotes from various authors who, in support of their text, cite the authority mentioned, but the court gives only fragments of what was supposed to have been said therein. Evidently the decision itself was not at hand. In view of the fact that the case was decided in 1712, long prior to the writing of any of the works cited in U. S. v. Wood, we think we can with profit quote from the opinion:

“There is this difference between 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 disapproved. 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.”

What is the real significance of this language? It is apparent that the court was endeavoring to distinguish between the weight to be attached to two opposing witnesses in two different situations; that is, as between a case in which there is a prosecution for perjury and a civil suit over property. The learned jurist held that in a civil suit the testimony of a credible and probable witness (when opposed by one whose testimony was not probable) should turn the scale, but that in a prosecution for perjury, since the defendant is presumed as a matter of law to be innocent, and 'must be shown to be guilty beyond a reasonable doubt, the evidence of a witness in his behalf will receive regard until disproved. Therefore to convict of perjury the testimony of one credible and probable witness on the part of the prosecution is not enough when opposed by the testimony of one witness on behalf of the defendant, but the testimony of such witness on the part of the prosecution must be corroborated by that of another witness, or by facts and circumstances, for otherwise there is only oath against oath.

The strength of the rule thus enunciated seems impregnable when we stop to consider two facts which seem to have escaped the attention of counsel for appellant, and, indeed, of all the authorities in this country. In the first place, the difference between a criminal case and a civil case, as pointed out, is this: In a civil case, wherein a contest is waged over property, there is no presumption in favor of either party; they enter upon the trial of théir case even-handed, so to speak, and the court is controlled by a preponderance of the credible evidence; when in a criminal case the defendant is presumed to be innocent, and must be shown to be guilty beyond a reasonable doubt. Furthermore, as the law existed at the time the case in 10 Mod. Rep. 193 was decided, the defendant could not testify in his own behalf. The witness whom he might produce to testify was not subject to the same temptation to falsify, as was the defendant, and this no doubt had its influence in leading to the adoption of the rule that no conviction of perj ury should be had in a case where oath was opposed to oath. With us, a defendant may testify in his own behalf; his testimony to receive such consideration as the j ury may see fit to accord it.

The great majority of cases in this country, cited to sustain the rule contended for by appellant, are of the character where oath is opposed to oath, and not cases similar to the instant one, or where circumstances are opposed to the oath of the person charged with perjury, who is more likely to swear falsely in his own defense than would be a witness disinterested in the result. In other words, two elements existed when the case in 10 Mod. Rep. 193 was decided, which do not enter into the instant case: First — This is not a case in which the direct and positive testimony of a living witness is relied upon to establish the perjury, to which is, or from the circumstances of the case can be, opposed the direct and positive testimony of a living witness in behalf of the defendant; and, secondly, a distinguishing feature of this case, and which of itself would take it out of the rule contended for, is the fact that the defendant did not testify upon the trial, in substance, that his testimony given in the former trial was in accordance with the truth, nor did any witness in his behalf so testify. In fact, the testimony on the part of the prosecution tending to establish circumstances showing the guilt of the defendant was not contradicted by any witness, nor attempted to be contradicted.

The contention of counsel, in its final analysis, resolves itself into the assertion that perjury cannot be shown by circumstantial evidence. We think the contention without support, either in reason or authority.

In People v. Doody, 172 N. Y. 165, 172, 64 N. E. 807, which was a prosecution for perjury, it was held that circumstantial evidence would sustain a conviction. The defendant had testified on several occasions to a certain state of facts. In another trial he testified that he did not remember. No living witness could testify that he did remember, but the court held that the jury was justified in convicting under the circumstances shown.

In Metcalf v. State, 8 Okl. Crim. 605, 129 Pac. 675, 44 L. R. A. (N.S.) 513, it was held that there might be a conviction upon circumstantial evidence, quoting from authorities to sustain the position. We think, too, a critical reading of People v. Chadwick, 4 Cal. App. 63, 87 Pac. 384, 389, relied upon by appellant, sustains this view. That was a case in which the defendant was convicted of falsely testifying that he had sent two telegrams, written and delivered by him in his cell, after his arrest in Ogden, Utah. The state offered affirmative proof that the telegrams had been written before his arrest. The court held:

“If they were written before he was arrested his testimony that he wrote them after his arrest and while confined in his cell under such arrest was false. Any evidence, therefore, sufficient to establish as a fact that the telegrams had been written before his arrest would establish the physical impossibility of their having been written by him in his cell after his arrest, and thus demonstrate -the falsity of his testimony.”

Are the circumstances shown in the case before us sufficient to sustain the verdict? As stated, the defendant is charged with having corruptly given false testimony in a case wherein he was on trial for having-in his possession intoxicating liquor in the Europa Hotel. In that case his testimony was to the effect that on August 26, 1920, three or four men came into the bar and asked for glasses with soda, which he gave them, and that one of them took a bottle from his inside coat pocket and poured the contents thereof into the glasses. It is contended that the testimony of the defendant as to who poured the contents into the glasses was false, and that it was corruptly given. To sustain this contention, one Gilbert, a member of the state police, testified that on the day mentioned he went into said bar and saw three men standing in front thereof, each with a glass in front of him; that the defendant, while behind the bar, took a certain bottle,, and was about to pour therefrom into one of the glasses; that he immediately went out and called D. B. Renear, a sergeant of the state police, and sent him in. Renear testified that about half a minute elapsed between Gilbert’s coming-out of the saloon and his going in; that when he got in he saw the glasses with their contents, and a 50-cent piece on the bar before each of the glasses; that he asked defendant what was in the glasses, to which he replied, “Jackass brandy; you want some?” to which the witness said, “Yes,” and the defendant got the bottle and poured him some in a glass; that the witness drank some of it, and then grabbed th'e other glasses, with their contents, and notified the defendant that he was under arrest; that defendant immediately poured the contents out of the bottle, and about that time Gilbert came in and got the bottle, into which the contents of the four glasses was poured. The analysis showed the contents to be jackass brandy. The evidence is to the effect that the bottle into which Renear poured the jackass brandy is the one which Gilbert saw the defendant in the act of pouring from. In addition to the foregoing evidence on the part of the state, there is the testimony of Albert and Tada as to their leaving the state at the solicitation of the defendant, so as not to give testimony against him.

The defendant went upon the stand in his own behalf, but did not testify as to anything that had happened in the saloon. The testimony of Gilbert and Sergeant Renear as to what transpired is uncontradicted. The defendant’s testimony is confined to the circumstances under which Albert and Tada left the state, and what happened after their return.

We think the facts amply justify the verdict. True, no one saw defendant pour the jackass brandy into the three glasses, but he was seen about to pour it; a 50-cent piece was on the bar for each glass; he had jackass brandy in his possession in the bottle which he held in his hand when about to pour, and thereafter poured some of it into a glass for Renear. These uncontradicted circumstances were sufficient to warrant a conclusion on the part of the jury that he did pour jackass brandy into the three glasses from the bottle which he took from behind the bar, and that the testimony given by him on his former trial was corruptly false.

We think, too, that the circumstance of defendant’s procuring the leaving of the state by the witnesses Albert and Tada, if the jury believed that he did so, which was for them to determine, was of considerable weight in determining the guilt of the defendant. In State v. Kimes, 152 Iowa, 240, 132 N. W. 180, the court said:

“The conduct of a suspected party charged with crime may be shown to be such as an innocent person would not be likely to resort to. Such a fact is not conclusive of guilt, but it may strengthen the inferences of guilt arising from other facts. Like attempts to escape or fly which do not in themselves establish the commission of the crime charged, but tend to show conduct inconsistent with innocence, the attempt to secure false testimony by bribery is so inconsistent with consciousness of innocence of the crime charged that the j urors may take it into account as bearing on the question of defendant’s guilt” — citing authorities.

It is said that the district attorney was guilty of misconduct warranting a reversal of the judgment. This alleged misconduct grows out of the testimony of the witness Albert, to the effect that he had been induced to leave the jurisdiction of the court so as not to be available as a witness against the defendant. The witness also was under indictment for alleged perjury committed upon the trial of the defendant upon the charge of having intoxicating liquor in his possession. Immediately after Albert had given testimony in the instant case in favor of the state, Joe Mozitti, a partner of defendant, withdrew from Albert’s bond and surrendered him to the sheriff. The district attorney, having learned the facts during the recess of the court, made a motion that Albert be permitted to go upon his own recognizance, and the court entered an order accordingly. Counsel for defendant, learning thereof, called as a witness a deputy clerk of the court, who testified as to the motion of the district attorney and the order of the court. .This testimony did not pertain to the merits of the case, and could have been offered for only one purpose, namely, to lead the jury to believe that Albert had been allowed to go on his own recognizance as a reward for his testimony to the effect that he had been induced to leave the state by the defendant so as not to appear against him. After the testimony of the deputy clerk had been received, showing the order permitting Albert to go upon his own recognizance, the district attorney called the stenographer, who testified, over the objection of counsel for defendant, as to the statement made by the district attorney as reasons for his motion. Thereafter the court struck out this testimony, and directed the jury to disregard it. In view of the purpose for which the testimony of the deputy clerk was offered, we are not -prepared to say that the statement of the district attorney was prejudicial to the defendant. But certainly, under all of the testimony in the record, in view of the order of the court striking out the testimony of the stenographer and directing the jury to diregard it, the defendant was in no way prejudiced.

Error is assigned to two instructions given by the court. These instructions are based upon certain evidence which we have held competent and therefore they were properly given. It is said, however, as to one of the instructions, that, if it correctly states the law, the evidence did not justify the giving of it, for the reason that the witnesses Albert and Tada did not tell the defendant that they had not witnessed the transaction concerning which they testified they were induced to swear falsely. These are the witnesses Who testified to having been suborned by the defendant to testify falsely on his trial upon the charge of having intoxicating liquor in his possession. We do not think it matters whether they told or did not tell the defendant that they had not witnessed the transaction. If they swore to the existence of a nonexisting fact, it is evident that they could not have told him that they saw it. At any rate, a suborner of perjury cannot escape the consequences of his infamy by such a subterfuge.

We perceive no prejudicial error in the record, and it is ordered that the order and judgment appealed from be affirmed.