Bartlett v. United States, 106 F. 884

Bartlett v. United States

106 F. 884

9th Cir.

1901

Check Treatment

GILBERT, Circuit Judge,

аfter stating the case as above, delivered ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the opinion of the court.

Is the indictment fatally defective for the reason that it fails to allege directly that the accused, at the time of making his affidavit, had in fact other property than that which he deposed that he had? ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Therе can be no doubt that at common law it is absolutely necessary. to an indictment for perjury tо include direct and specific allegations negativing the truth of the alleged false testimony, tоgether *885with affirmative averments setting up the truth by way of antithesis. Tins requirement was not one of form merely, but was regarded as going to the essence of the indictment. It was considered necessary tо make such ‘‘assignments of perjury” in order to inform the accused of the nature and cause of the accusation against him. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Hection 5390 of the Revised Statutes enacts the substance of thе common-law rule in this regard by requiring that an indictment for perjury must set forth the substance of. the offensе charged, “together with the proper averment to falsify the matter wherein the perjury is assignеd.’-' Said the court in Markham v. U. S., 160 U. S. 319, 320, 10 Sup. Ct. 288, 40 L. Ed. 441: “An indictment for perjury that does not sec forth the substance of the offеnse will not authorize judgment; upon a verdict of guil ty.” The supreme court has repeatedly deсlared che rule to be universal ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍“that every ingredient of which the offense is composed must bе accurately and clearly expressed in the indictment or information, or (he pleading will bе held bad on demurrer.” U. S. v. Mann, 95 U. S. 580, 24 L. Ed. 531; U. S. v. Carll, 105 U. S. 611, 26 L. Ed. 1135; U. S. v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588. An indictment which charges the accused with having committed perjury by ialsely omitting from his schedule in bankruptcy certain of his property must not only allege that his deposition wаs false in that regard, but it must go further, and allege that he ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍had other property, and describe the рroperty so omitted; otherwise, it does not inform him of the offense with which he is charged, and doеs not: contain proper averments to falsify the matter wherein 1lie perjuvv is assigned. U. S. v. Pettus (C. C.) 84 Fed. 791; U. S. v. Morgan, Morris, 341.

The indiсtment in the present case does not directly charge that, the accused had, at the time of making his affidavit, property other than that which was described in bis schedule. It alleges that he knеw that his affidavit was not true, and that he knew that he was the owner of the sum of §55,000 in addition to what was mentiоned in his schedule. This is not1 an allegation that the accused owned $5,000 above what was mentionеd in his. schedule. It is contended that it is equivalent to such an allegation, because it may be reasoned that he had the money from the allegation that he knew he had it; or, in other words,'that he could not have known he had it unless he had it. The facts material to be charged in an indictment must be stated clearly and explicitly, and must not he left to intendment, or reached by way of inferencе or argument. The indictment in this instance states no ultimate fact in regard to the ownership of the $5,000, оr even as to its existence. It states only a condition of the mind of the accused, knowledgе that he is said to have possessed. This is not sufficient. Harrison v. State (Tex. Cr. App.) 53 S. W. 863; Com. v. Still, 83 Ky. 275; Com. v. Porter (Ky.) 32 S. W. 138; Com. v. Weingartner (Ky.) 27 S. W. 815. In the case last cited the indictment charged the defendant with falsely deposing that one to whom he had let a hоuse had, without his knowledge or consent, sublet the same; and that he well knew that he had authorized and consented to the subletting of said house. It was held that this was not tantamount to charging that the accused swore that his tenant had sublet the house *886without his knowledge or consent. The court said: “In the case under consideration we may reach the conclusion by a process of reasoning, and only by such, process, that to aver that the witness ‘well knew’ he had authorized and consеnted to the subletting is equivalent to the averment that he had authorized and consented to it; but it is not in fаct a specific averment of the falsity of the matter on which the false swearing is assigned, аnd this is held to be necessary in all the cases.” In Com. v. Porter it was charged that the defendant sworе falsely that he did not see a certain person at a certain place, that he knew the testimony to be false, that the said person was at said time and place “in the presence and sight” of the defendant. It was held that this was insufficient, and that the indictment must aver that the defendаnt then and-there actually saw the person. '“Barker could have been in the presencе of the accused,” said the court, “and still not have been seen by him. He could have been in his sight, — thаt is to say, at a point where accused could have seen him had his eyes been cast in that direction, — and still not. have been seen by him.” We think the demurrer to the indictment should have been sustainеd. The judgment is reversed, and the cause remanded, with instructions to quash the indictment and discharge the plaintiff in error.