People v. Root

The questions presented by this appeal are: (!) Is the indictment defective in any essential particular ? (2) Were the assignments of perjury (three in number) which were submitted to the jury by the learned trial court material and such as to be made the basis of a conviction of the crime of perjury, even if false and known to be so by the defendant? (3) Did the evidence justify the conviction of the defendant upon each of such assignments, or was the verdict of guilty contrary to or against the weight of the evidence upon any of them? (4) Did the learned trial court, by its rulings during the progress of the trial, commit error which was prejudicial to the defendant and such as to require the reversal of the judgment?

The learned counsel for the defendant urges that the indictment is defective, because, as claimed, it fails to allege that the defendant knew the testimony given by him upon the Boyce trial was false; that the word “knowingly” as used in the indictment has reference to the words ‘ ‘did * * * testify,” and is not an allegation that the defendant knowingly testified falsely, but only charges him with knowing that he was giving testimony under oath upon the trial. We think such is not a fair and reasonable interpretation; that when its many allegations, which are contained in one count, are considered together the indictment must be held to charge the defendant with having testified to that which he knew to be false. The indictment fully informed the defendant of the precise nature of the crime with which he was charged; of the acts which it was claimed constituted

The learned trial court submitted to the jury three assignments of perjury, viz.: (1) As to whether or not the defendant testified falsely when he stated on the Boyce trial that on July thirty-first he contracted to sell Fairbanks (who conducted a meat market at Jamestown) some hogs and veal calves and to deliver them on August seventh, and that on August seventh he delivered eight hogs and some calves at the meat market of Fairbanks on East Second street in Jamestown. (2) As to whether or not he testified falsely on the Boyce trial when he stated that he contracted on the seventh day of August some hogs to Peterson, who was also conducting a meat market in the same city, and (3) whether or not he testified falsely when he stated upon the Boyce trial that he met Boyce at Jamestown and was with him there at about seven o’clock or later on August 7, 1902.

The trial court charged the jury, in effect, that in case they found the defendant had knowingly testified falsely in respect to any one of such assignments they might find him guilty of the crime of perjury as charged in the indictment.

It is insisted on behalf of the defendant that at least the first two of such assignments were not material upon any issue involved in the Boyce trial.

To fully appreciate the force of defendant’s contention it is necessary that we should understand exactly what issue or issues were involved in the Boyce trial. As we have seen,

This defendant upon that trial testified in substance that on July 31, 1902, he was in Jamestown, N. Y., and on that day contracted with one Fairbanks to deliver to the latter on the 7th day of August, 1902, veal calves and hogs, and ■ that, pursuant to such contract, he did deliver the same on

It is elementary that although testimony may be given by a witness which is false and which is known by him to be so when given, unless such testimony is material it may not be made the basis of a conviction for the crime of perjury. If, however, testimony knowingly false be given, although relating to a fact which in and of itself is immaterial, tends to corroborate a material fact to which a witness has testified, and tends to give him a credibility with the court or jury, such testimony may be made the basis for his conviction of the crime of perjury. (2 Whart. Crim. Law [7th ed.], § 2229; 3 Greenl. Ev. [15th ed.] § 195.)

In Bishop’s New Criminal Law (Vol. 2, § 1037) it is said: * Where the evidence is simply to explain how the witness knew the thing he states,—as where, testifying to an alibi, he mentions the party’s residence and habits to show he could not be mistaken on the main point,—since this incidental matter may incline the jury more to credit the substantial, it will sustain a conviction for perjury if willfully false.”

Upon the trial of an indictment for perjury it is not necessary that false statements should tend directly to prove the issue in order to sustain a conviction. If the matter falsely sworn to is circumstantially material or tends to support and give credit to the witness in respect to the main fact,'it is

Upon the trial of the Boyce case one of the most material issues to be determined by the jury was whether or not Boyce was in Jamestown at the time when he was charged with having assaulted Mary Evans at West Salamanca. Boyce sought to prove that he was not in West Salamanca at the time in question—sought to prove an alibi—and the defendant was his chief witness upon that issue. The defendant and Boyce were old friends and acquaintances, but had seen each other infrequently for several years prior to the day in question owing to the fact that the defendant resided in Pennsylvania, more than twenty miles distant from Jamestown, where Boyce frequently went on business, and quite as distant from West Salamanaca, where Bpyce resided.

It added very much, or may have done so, to the credibility of the defendant s story that he met Boyce in Jamestown on August 7, 1902, and was with him there on the evening of that day until such time as made it impossible for Boyce to be in West Salamanca at the time when he was charged with assaulting Mary Evans, by stating that he went to Jamestown on the day in question upon business pursuant to a prior engagement made with reputable business men of that city, and which business was of such a character as reasonably to require him to remain during the entire day. If the defendant, who was a farmer residing more than twenty miles distant from Jamestown, had stated that he went there upon the day in question solely for pleasure and without any business engagement whatsoever, the jury might have discredited his statement as to the material issue that he met and was with Boyce after seven o’clock in the evening of that day. But if it appeared as a fact that he was in Jamestown on business, to wit, to deliver hogs previously contracted to Fairbanks, and that about five o’clock in the afternoon he contracted for the sale of

It is concluded that each of the three assignments submitted by the learned trial court to the jury was material, and if false might properly be made the basis of a conviction of the crime charged in the indictment.

We must next determine whether or not the verdict of the jury was contrary to or against the weight of the evidence upon any one of the three assignments of perjury submitted. If so as to any one then the verdict must fall, for it is impossible to know upon which assignment the defendant was convicted. We may surmise the jury found that the defendant testified falsely when he stated that Boyce was in Jamestown after four o’clock and until seven o’clock in the evening of August 7, 1902, and convicted him upon that issue. But the evidence was conflicting upon that issue and how may we know that the jury did not- find that the defendant testified truthfluly in that regard and falsely as to the other propositions submitted to them? In other words, how are we to know that the jury did not convict the defendant because, as they determined, he testified falsely when he stated that he delivered hogs to Fairbanks and contracted for the sale of hogs to Peterson for his neighbor Ross, although they may have believed that he testified truthfully when he stated that he was with Boyce in Jamestown after four o’clock and until seven o’clock on the afternoon or evening of August 7, 1902 ? It would seem to be clear that in order to sustain the judgment of conviction appealed from it must be found that the evidence was sufficient to justify a verdict of guilty upon each or any one of the assignments

While the evidence is clearly sufficient to make it a question of fact for a jury as to whether or not the defendant knowingly testified falsely when he stated that he was with Boyce in Jamestown on the evening of August 7, 1902, we think that upon the other two propositions submitted the People failed to establish by a preponderance of proof, much less beyond a reasonable doubt, the guilt of the defendant. The defendant testified positively that he did deliver hogs to Fairbanks upon the day in question, and he gave considerable evidence in corroboration of such statement. He testified that such delivery was made about eight o’clock'in the morning of the 7th day of August, 1902. His wife and daughter testified that he started from his home in Pennsylvania at about two o’clock on the morning of August seventh for Jamestown and that he took with him a load of hogs for delivery there and that it would take him about the time from two o’clock, when he left home, until eight o’clock that morning to reach Jamestown. One H. D. Parker testified that at about eight o’clock in the morning of August seventh he met the defendant on Third street, in the city of- Jamestown, near Fairbanks’ meat market, with a team of horses and a light wagon and a load of hogs, and that at the time the defendant was going in the direction of Fairbanks’ meat market; that they stopped and talked some minutes. The witness Parker testifies that he is able to fix the date as the morning of the seventh of August because of a memorandum which he made under the date of August sixth and which he produced upon the trial. The only evidence offered by the People to show that the defendant did not deliver hogs to Fairbanks upon that day is that given by Mr. Fairbanks, the proprietor of the meat market. He testified that he had no recollection of the defendant bringing any meat to his market on August seventh, but upon his cross-examination said : “I am not positive whether Mr.

There is still less evidence to support the charge that the defendant committed perjury when he testified upon the Boyce trial that on the seventh day of August he contracted hogs at Peterson’s for his neighbor Ross. The defendant upon this trial, as upon the Boyce trial, testified positively that he went to Peterson’s meat market after dinner and there contracted for some hogs for his neighbor Ross. The People, to establish that such testimony given by the defendant was false, called Alfred Peterson, one of the proprietors of the meat market. He testified that he had no recollection of the defendant contracting with him for the sale of

It is urged by the learned district attorney that the falsity of the defendant’s testimony upon the main issue, to wit, that he was with Boyce in Jamestown after four o’clock on the afternoon of August 7, 1902, may be considered and taken in corroboration of the testimony tending to show that he did not deliver hogs to Fairbanks, or contract for his neighbor’s hogs with Peterson as testified to by him. The difficulty with that proposition is that for aught that appears, as we have suggested, the jury may have found that the defendant testified absolutely truthfully as to every other issue in the case except one or the other of those now

Having reached the conclusion that the judgment must be reversed because the verdict of the jury is against the weight of the evidence, it is unnecessary to consider the exceptions taken to the rulings of the court made during the progress of the trial. It may not, however, be inappropriate to say that upon a trial of a criminal action the trial judge ought not to give, in the presence of the jury, his recollection of any question of fact which may be in issue upon the trial. Such a statement of the recollection of the court was made in this case, ■ but in view of the result already indicated we deem it unnecessary to determine the validity of the exception taken thereto.

It follows that the judgment of conviction should be reversed and a new trial ordered.

All concurred, except Williams and Stover, JJ., who dissented.

judgment of conviction reversed and new trial ordered.

NOTE ON GENERAL VERDICT WHERE THERE ARE SEVERAL COUNTS.

It is well settled that if there is a general verdict and any of the counts in the indictment are bad, the conviction will be sustained if there is any good count in the indictment.

People v. Davis, 56 N. Y. 95 ; People v. Willett, 102 N. Y. 251 ; s. c. 4 N. Y. Crim. R. 200 ; People v. Dimick, 107

A different question, however, arises where there is more than one good count in the indictment, and where the jury-has found a general verdict. In such a case, the courts have pointed out that it is impossible to tell upon which one of the counts the jury convicted the defendant, and that it is possible that they may have convicted the defendant upon the particular count as to which the evidence is insufficient. In such cases, a reversal follows. See upon this point People v. Van Zile, 143 N. Y. 368 ; 9 N. Y. Crim. R. 330 ; People v. Sullivan, 173 N. Y. 122 ; 17 N. Y. Crim. R. 180 .