321 Mass. 299 | Mass. | 1947
The defendants Jacob Fine and Henry H. Fine were convicted of subornation of perjury and also of conspiracy to incite, instigate and persuade one Johnson to commit perjury. They appealed from the convictions for subornation of perjury, assigning as errors the denial of their motions for directed verdicts of not guilty and the admission of a motion for a new trial which had been filed in a previous prosecution of Jacob Fine in which he had been convicted of being an accessory before the fact to the burning of a building with intent to defraud the insurer, G. L. (Ter. Ed.) c. 266, § 10, as appearing in St. 1932, c. 192, § 7; Fine v. Commonwealth, 312 Mass. 252; it being alleged that it was upon the hearing on this motion that Johnson committed perjury. The indictment for conspiracy was tried with the indictments for subornation of perjury, and the judge reported the exceptions of Henry H. Fine to the denial of his motion for a directed verdict of not guilty and to the admission in evidence of the aforesaid motion for a new trial.
There was testimony that Jacob Fine, after his conviction of being an accessory before the fact to burning a building with intent to defraud the. insurer, sought wit
We first consider the assignments of error in the trial of the indictments charging subornation of perjury.
The principal contention of the defendants is that the motions for directed verdicts of not guilty should have been granted because the evidence was insufficient to prove the falsity of the testimony given by Johnson at the hearing on the motion for a new trial. The deficiency, it is urged, arises out of the contention that Johnson’s testimony was not shown to be untrue by the testimony of two witnesses or by that of one witness with corroborative evidence. The contention rests upon the familiar rule defining the quantitative evidence required for the proof of perjury. The history, reasons, and application of this rule have been frequently set forth in various decisions. Commonwealth v. Parker, 2 Cush. 212, 222-224. Hammer v. United States, 271 U. S. 620. Weiler v. United States, 323 U. S. 606. See note 56 Am. L. R. 408; Wigmore on Evidence (3d ed.) §§ 2040-2044. This rule has been followed in our decisions " in prosecutions for perjury, Commonwealth v. Pollard, 12 Met. 225, 228; Commonwealth v. Parker, 2 Cush. 212; Commonwealth v. Butland, 119 Mass. 317, 324; Commonwealth v. Sargent, 129 Mass. 115, 123, and in trials for subornation of perjury with reference to the proof of that part of the offence dealing with the falsity of the oath of the person alleged to have been suborned, Commonwealth v. Douglass, 5 Met. 241; Commonwealth v. Bornstein, 269 Mass. 181. It has recently been pointed out that this rule is at variance with the general rule that facts are to be proved by the character and quality of the testimony and not by the quantity of the evidence or by the number of witnesses, and is inconsistent with the present trend of our decisions toward the elimination of quantitative standards of the sufficiency of evidence. Commonwealth v. Gale, 317 Mass. 274, 277, 278. One of the main reasons for the adoption of the rule was that in prosecutions for false swearing the oath of the defendant is not overcome by the oath of another which contradicts the oath taken by the
During the trial the Commonwealth without objection introduced in evidence the affidavit of Johnson which was attached to the motion for a new trial which had been filed in the previous prosecution of Jacob Fine. After the Commonwealth had rested, it was permitted by the judge, over the exceptions of these defendants, to put in evidence the motion itself. It appears from the motion that it was based entirely upon alleged newly discovered evidence. It showed the issues that were heard and determined and that Johnson’s testimony was material. Commonwealth v. Aronson, 250 Mass. 521. The only specific objection'now urged by the defendants is that the introduction of the motion at this stage of the trial tended to give undue emphasis to the affidavit of Johnson which was attached to the motion. This affidavit had already been put in evidence, and we see nothing in the record that supports the contention of
There is nothing in the contention that Johnson’s evidence was merely cumulative or that it did not influence the judge in granting the motion, especially where it appeared that upon the discovery of the perjury of Johnson the judge vacated his order granting the motion. Fine v. Commonwealth, 312 Mass. 252.
The defendant Jacob Fine was sentenced to a term of from nine to ten years in the State prison. The statute, G. L. (Ter. Ed.) c. 268, §§ 1, 2, authorizes the imposition of a sentence up to twenty years. He contends that the sentence is excessive. The point is not based upon any assignment of error and consequently is not open. Commonwealth v. Cero, 264 Mass. 264. Commonwealth v. Polian, 288 Mass. 494. Commonwealth v. Bellino, 320 Mass. 635. We do not intimate that the question of the validity of a sentence less than the maximum prescribed by the statute can be raised by an assignment of error, or that, if it were, it could be reviewed or revised. Dolan v. Commonwealth, 304 Mass. 325, 345, 346. Matter of Loeb, 315 Mass. 191, 198, 199.
We now consider the exceptions of Henry H. Fine taken at the trial of the conspiracy indictment. It is plain that, upon the evidence already recited, the jury could find that he had joined with some of the three other defendants named in this indictment to procure the commission of perjury by Johnson. Commonwealth v. Galvin, 310 Mass. 733. Commonwealth v. Aronson, 312 Mass. 347. Commonwealth v. Beal, 314 Mass. 210. Commonwealth v. Mycock, 315 Mass. 262. Commonwealth v. McHugh, 316 Mass. 15.
There was no error in the admission of the motion for a new trial in the prosecution in which Jacob Fine had been convicted of being an accessory before the fact to the bum-
This defendant contends that the conspiracy was merged in the offence of subornation of perjury. The conspiracy was only a misdemeanor, Fox v. Commonwealth, 264 Mass. 51, Commonwealth v. McKnight, 289 Mass. 530, 537; and although its object was to procure the commission of a felony by Johnson, the actual commission of this felony by Johnson did not obliterate or wipe out the lesser offence of conspiracy. Commonwealth v. O’Brien, 12 Cush. 84. Commonwealth v. Walker, 108 Mass. 309. Commonwealth v. Andrews, 132 Mass. 263, 265. Commonwealth v. Stuart, 207 Mass. 563, 571. Commonwealth v. Marsino, 252 Mass. 224. Commonwealth v. Ponzi, 256 Mass. 159.
The judgments on the indictments for subornation of perjury are affirmed, and the exceptions of Henry H. Fine taken at the trial of the indictment charging him and others with conspiracy are overruled.
So ordered.