Gregorat v. United States

249 F. 470 | 5th Cir. | 1918

BATTS, Circuit Judge.

[1] Plaintiff in error was indicted for violation of section 23 of the act of June 29, 1906, in that he “knowingly did give, in a naturalization proceeding, false testimony as. to a material fact.” The indictment alleges that in a naturalization proceeding Gregorat testified that he had never operated a saloon, nor been arrested, nor charged with the commission of crime, nor found guilty of violating any state law. The indictment is attacked upon the ground that it does not affirmatively state that the defendant had operated a saloon, and that he had been arrested and charged with the commission of a crime, and that he had been found guilty of violating a state law; the allegation of the indictment being:

“Whereas, in fact, it was not and is not true, and at the time of so swearing and deposing the said Josef Domeniek Gregorat did not believe it to bo true, that he had not operated a saloon, or that he had never been arrested or charged with the commission of a crime of any kind, or that ho had never been found guilty of violating any state law,” etc.

Under the formerly well-recognized rules with reference to indictments in cases of perjury and false swearing, the indictment would doubtless have been insufficient. Tn any writing, other than an indictment, a statement that “it is not true that he did not operate a saloon” would be accepted as equivalent to a statement that “he did operate a saloon.” There is no reason why a different rule should apply to indictments. Instead of being insufficient for lack of words, the indictment under consideration demonstrates that there is 'much still to be accomplished in the matter of simplification of indictments. The objection to the indictment is not sustained.

[2] The indictment is objected to upon the ground that it does not charge that the defendant gave false testimony as to a material fact “required to be proved in such proceeding.” The quoted clause of the section is applicable alone to affidavits.

[3] The transcript of part of the notes taken by the stenographer at the trial of the naturalization proceeding was introduced in evidence upon what the defendant asserts was an insufficient identification, and over his objection that the notes constituted the better evidence. The notes were not available, and could not have been used if they had been. That the transcribed notes represented the facts was established by the defendant’s own testimony and otherwise. Fven if the evidence was improperly admitted, no harm resulted to defendant.

[4] Another objection to the indictment is that it does not charge that the defendant “took the oath falsely, willfully, and knowingly.” The statute punishes one “who knowingly gives false testimony.” The indictment alleges that the defendant did “unlawfully, willfully, knowingly,” do the things denounced by the law.

[5] The charge of the court is objected to in the brief for plaintiff in error on the ground that it incorporated section 125 of the Criminal Code, which defines perjury. The elements of the crime defined by section 125, and of .that defined by section 23 of the act of June 29, 1906, are substantially the same, and the indictment was doubtless good under either. The charge was probably sufficient and unobjectionable, notwithstanding the reading of section 125. No bill was taken to this assumed error, the facts developed by the evidence are not fully before us, and the matter cannot be passed upon.

[6] A question raised by the brief of plaintiff in error as to the sufficiency of the evidence cannot be determined, in the absence of an exception and a bill incorporating the evidence. That part of the evidence incorporated in other bills indicates that the finding of the jur)' jvas justified.

The judgment is affirmed.