123 P. 80 | Wyo. | 1912
The plaintiff in error (defendant below) was charged by information duly filed in the District Court of Laramie County on June 4, 1909, tried, convicted and judgment pronounced against him for the crime of perjury. He brings the case here on error.
The charging part of the information is as follows: “That C. D. Fletcher, late of the county aforesaid, on the 21st day of December, A. D. 1908, at the County of Laramie, in the State of Wyoming, did before the District Court of the First Judicial District, sitting in and for the County of Laramie, in the State of Wyoming, Honorable R. N. Matson, judge
Upon the trial of Wilde for the alleged felonious assault evidence of the state tended to show that the offense was committed at about two o’clock on thé afternoon of December 26, 1907. The evidence of Bernice Wells, the prosecu-trix, given in that case as shown by the transcript of her evidence here introduced tended to show that Wilde rode on horseback to the home of prosecutrix, dismounted and entered her house where she was alone between 12 and 1 o’clock in the afternoon, inquired if she had seen a horse of his for which he was in search, and upon her answer that she had not, rode away and returned about 2 o’clock riding a different horse which he hitched about 300 yards from and re-entered the cottage and committed the assault. The defense in that case was in the nature of an alibi, and to the effect that Wilde and his partner with a crew of men commenced putting up ice on December 23d and continued in such work for a period of 10 days and on December 25th, between 8 and 9 o’clock in the morning, in attempting to-loosen a saw which had been left in the ice during the preceding night Wilde fell and the saw injured him so that he was unable to ride horseback for sometime thereafter, and that in going to and from his house to his place of business he rode in a wagon always accompanied by someone. There was also evidence of the state tending to prove that the business of putting up the ice did not begin until the 30th day of December hnd that Wilde was not present at said ice house and engaged in putting up ice on the 25th day of' that month and was not injured on said date at that place.
It is here urged that there is no evidence in this record independent of the transcript of the evidence given by Bernice Wells, the prosecutrix, upon the trial of the assault case, which as we have already stated was not competent as proving the falsity of Wilde’s testimony upon.which perjury is assigned, tending to show that Wilde, the defendant there, was at the cottage of the prosecutrix on the afternoon of the 26th of December, 1907, at the time and place and where-it was claimed in the assault case that the felonious assault occurred, and that for that reason there is a failure of proof. It was not necessary to prove that fact in the case here. It was sufficient that his presence at that time and place was ■in issue upon the trial of the assault case or in other words
It was said by this court in Dickerson v. State, supra, as follows: “In perjury it is not necessary that the alleged false testimony bear directly upon the issue. It is sufficient even though it be upon a collateral matter' or constitute material circumstances legitimately tending to prove or disprove facts which are in issue, or if it tend to strengthen or weaken the evidence in support of or against the issue upon the trial in which it was given.” As already stated the issue in the assault case was as to the presence of the defendant at the cottage of the prosecutrix on the afternoon of the 26th of December. The defendant here upon the trial of Wilde in the assault case testified in substance that they commenced putting up ice on December 23rd, and on December 25th, between the hours of 8 and 9 o’clock in the morning of that day, Wilde was injured at the ice house and that Wilde rode a horse every day up to the time of the injury in going from his home in Hartv'ille to and returning from the ice house, a distance of about 3)4 miles. This evidence tended to negative the claim that he rode to the cottage of the prose-cutrix on December 26th. Clearly if he was not at the ice house putting up ice and injured on December 25th he was not incapacitated from riding horseback on December 26th by reason of any injury or supposed injury received by him on December 25th. From the transcript of the evidence of the prosecutrix given by her upon the trial of the assault case she there testified that Wilde rode horseback to her house at about 1 o’clock in the afternoon of ■ December 26, 1907, remained a short time’ and left, returning again then riding a big bay horse, different from the former and which he hitched about 300 yards from and walked from the place where' he hitched the horse to the cottage and entered the same where hé assaulted her. The alleged false evidence was thus shown to have been material as affecting his ability
It was, however, incumbent upon the state to prove in the case here that issue was joined upon the trial of the assault case. The main issue in that case if any was the guilt or innocence of a felonious assault with which Wilde, the defendant therein, stood charged. Issues which arose in the trial of that case which were collateral and material to the main issue would constitute a basis for the assignment of perjury if false testimony was knowingly given thereon. If, however, there was no main issue or proof of issue joined then there could be no collateral issue thereto. In the case before us the information as shown by the bill of exceptions was introduced and read to the jury. The record of the arraignment and plea is as follows: “December 19, 1908, defendant arraigned; plead not guilty.” This record constitutes no part of the information but is a record of the plea interposed by the defendant. Sec. 6198, Comp. Stat., provides that “If the. accused plead ‘not guilty’ the plea shall be recorded on the indictment or information.” By the terms of this statute the plea shall be recorded on the information or indictment. Such record forms no more a part of the information than it does of an indictment. The information is separate and distinct from the record of the plea, and exists, independent of the plea before and after the record of the latter. The information or indictment and the plea of not guilty thereto or its equivalent constitutes the issue for trial. In the case here the bill shows that the information was admitted in evidence and read to the jury but no record of the plea of not guilty by the defendant, or that, circumstances arose so as to authorize the court to enter such plea (sec. 6197, Comp. Stat.) was offered in evidence.. The record of the plea upon the information as above did not go to the jury upon the introduction of and reading the information to the jury. The statute makes the distinction between the information and the record of the plea. It is uniformly held that there can be no valid trial on a charge
It is admitted by plaintiff in error in his brief that where there is no dispute in the proof bearing upon the materiality of the evidence upon which perjury is assigned its materiality is for the court. It is so held by this court in Dickerson v. State, supra. When, however, the question as to whether such evidence was given is,in dispute the question as to whether it was given is a question of fact for the jury and its materiality if the jury find that it was given is one for the court. It is referred to in the decisions and text books in the latter case as being a mixed question of law and fact, hut in so far as its materiality is concerned it still remains one of law. The testimony upon which the materiality of such evidence depends if in dispute must be submitted to the jury for it is then a question of fact and properly comes within the province of the jury. The evidence bearing upon the materiality in the case here was not in dispute for the testimony given as charged in the information was not disputed upon the trial and the court erroneously ruled upon its materiality in the case in which it was givén in the absence of proof of issue therein, basing its ruling alone upon the evidence given in that case and here introduced. It follows that the refusal to instruct as requested was proper upon the
“If you find from the evidence beyond a reasonable doubt that the defendant was sworn as a witness by T. J. Fisher, Clerk of the District Court of the First Judicial District, on a trial of a charge of felonious assault with intent to commit rape between the State of Wyoming as plaintiff and Anthony Wilde as defendant, pending before the District Court of the First Judicial sitting in and for the County of Laramie and the State of Wyoming; that T. J. Fisher was Clerk of said court at said time; that said oath was in compliance with law; that upon said trial the defendant testified upon oath in substance and effect that Anthony Wilde with a crew of men began putting up ice at the ice house of Fletcher and Wilde on the 23rd day of December, 1907; or that the said Anthony Wilde was present when said ice was being put up at the ice house of Fletcher and Wilde on the 25th day of December, 1907, and that he was injured at said place when said ice was being put up on said 25th day of December, 1907; and that said testimony was false and that defendant knew it to be false at the time he so testified, then you must find the defendant guilty.” The averment in the information that the defendant “did then and there appear as a witness * * * and was in due- form of law sworn by said court having competent authority and fqll power to administer to him the oath of a witness before said court” was supported by proof that the oath was administered by the court through and by its clerk. The court usually acts in such matters by its clerk who is authorized*301 to administer such an oath (sec. 5157, Comp. Stat.) and in doing so he acts under the direction of the court. (Sec. 4281, Comp. Stat.) The error is not inherent in the instruction but in giving it at all upon the facts as disclosed by the record. In the absence of proof of issue in the assault case the evidence was insufficient to support the verdict here and it became wholly immaterial as to where Wilde was or what occurred on the 23rd or 25th of December. Whether Wilde was injured of was putting up ice on the 25th could not be material in the absence of proof of such issue.
Eliminating the question of the competency of the stenographer’s notes upon the showing made by this record we are of the opinion that for other reasons hereinbefore stated the judgment-should be reversed and that the case should be remanded for a new trial. Reversed.