35 Pa. Super. 88 | Pa. Super. Ct. | 1907
Opinion by
The indictment upon which the defendant was convicted averred that upon the trial of one Clifford Hooe upon a charge
Testimony may be assigned for perjury either where it directly tends to prove or disprove one side or the other of the main issue, or where under the established rules of evidence it indirectly tends to do so by corroborating or discrediting other evidence or the testimony of another witness. In the former case the materiality may usually be determined by reference to the pleadings without reference to the other testimony; in the latter case, the testimony being given on some secondary issue of fact arising on the trial of the case, its materiality is ordinarily determined by an examination of the other testimony which it is intended to corroborate or contradict. It is seen from this statement of familiar principles that if the question whether or not the materiality of the testimony assigned as perjury was proved is to be raised on appeal after judgment upon a verdict, it is highly important that the record, including the pleadings in the case in which it was given, be brought up for examination by the appellate court. The record in the Hooe case, although offered in evidence, is not printed in the appellant’s paper-book. From this omission we are justified in inferring that the relevancy and materiality in that issue of the matter assigned as perjury, are not seriously questioned; and we add that, judging from the statements of counsel on both sides as to the nature of that issue, they could not be questioned.
But it is very earnestly urged, to adopt the words of appellant’s, counsel, that “there was no proof whatever to sustain the averments of the indictment,” and that “the indictment did not aver the matter on which the case was submitted to the jury.” In the consideration of these propositions, it is to be borne in mind that it is not absolutely essential
' In the defendant’s tenth.point the court was requested to charge that before the jury could convict it must be satisfied beyond a reasonable doubt of the truth of every fact or circumstance alleged by the commonwealth as tending to establish the charge of perjury, and it must also be satisfied beyond a reasonable doubt that such facts and circumstances make a case inconsistent with the innocence of the defendant. This point was properly refused. If the defendant testified willfully, corruptly and falsely that Mrs. Hartje conducted herself in the manner testified to, a conviction could be had even though the jury might not be convinced beyond a reasonable doubt that no woman conducted herself in that manner at the time and place in question.
All of the assignments of error are overruled, the judgment is affirmed, and the record is remitted to the court below to the end that the sentence be fully carried into effect, and to that end it is ordered that the defendant be committed to serve such part of his sentence of imprisonment as had not been complied with at the time his appeal was made a supersedeas.