202 F. 475 | 7th Cir. | 1912
Lead Opinion
(after stating the facts as above).
There is in the count no direct traverse of the alleged false statement that the books were destroyed by fire on April 21, 1907, unless the charge that defendant had the books on the two later dates may he deemed such a traverse, or that the allegation in the indictment that he—
“well knew that the matters and things by Mm made oath to as hereinabove in this count set forth were not true, and that the said Dan Kovoloff, at the time and place above mentioned in this count of this indictment, did not believe the said matters and things by him testified to under oath, as aforesaid, to be true; that the testimony so given as aforesaid and so falsely sworn to and made oath by the said Dan Kovoloff, was willfully, fraudulently, and corruptly false and untrue as he, the -said Dan Kovoloff, at the túne of so making oath and swearing as aforesaid well knew”
—constituted a sufficient negation of that allegation. From the evidence, it appears that Kovoloff’s statement as to the destruction of the hooks by thel fire of April 21, 1907, was false, and that when last seen, a week and a half after the fire, the books were in his possession and control. It is laid down in Bartlett v. United States, 106 Fed. 884, 46 C. C. A. 19, that:
“The facts material to be charged in an indictment must be stated clearly and explicitly and must not be left to intendment or reached by way of inference or argument.”
Does the present indictment state the material facts explicitly?
In U. S. v. Freed (C. C.) 179 Fed. 236, Judge Hand says:
“As to tile failure to allege the actual facts and not merely that the defendants’ testimony in the perjury indictments was false, and that they believed it to be false, there is doubtless authority for the rule which would make the indictments invalid. The practice in this district has been the other way, and on principle it is clear enough that the practice is right, for the requirement is of the allegation of evidence. If the practice is to be changed, the Circuit Court of Appeals [Second Circuit] must change it.”
Section 1025 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 720) providds that:
“No indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding therein, be affected by reason of any defect or imperfection in the matter of form only, which shall not tend to the prejudice of the defendant.”
In substance, the present presentment charges that defendant committed perjury when he swore that his books were burned on April 21, 1907; that instead of having been burned on said 21st day of April, 1907, they were in existence and in his possession up to November 7, 1907; and that he knew he was making a false oath when he swore they were burned in April, 1907.
The assignments of perjury, under the principle enunciated in Commonwealth v. McLaughlin, 122 Mass. 449, are in substance an explicit averment that defendant substantially testified tfiat his books of account, which were sought for by his creditors, had been burned and were not in existence on April 21, 1907, whereas in truth and in fact they had not been consumed on that date, but had beein in defendant’s actual possession up to November 7, 1907. This constituted, we think, a direct traverse of the defendant’s sworn statement'that the books were destroyed by fire on April 21, 1907, and we hold the indictment in that, behalf to be sufficient.
It thus becomes unnecessary to pass upon the second assignment of perjury.
The evidence sustains the allegations of the indictment that the examination was made by the! referee, and effectually controverts defendant’s contention that there is a variance between the indictment and the evidence, with reference to that matter. Schintz v. People, 178 Ill. 320, 52 N. E. 903; Nichols & Shepherd Co. v. Metzger, 43 Mo. App. 607; Murphy v. People, 19 Ill. App. 131; Ouidas v. State, 78 Miss. 622, 29 South. 525; Ermlick v. State (Miss.) 28 South. 847; Turbeville v. State, 56 Miss. 793, 799; State v. Smith, 49 Conn. 377; Pritchett v. State, 92 Ga. 65, 18 S. E. 536; Rowe v. People, 26 Colo. 542, 59 Pac. 57.
Affirmed
Dissenting Opinion
(dissenting). The finding in the second count that defendant on October 16th and November 7th had in his possession certain books of account is not a sufficient traverse of the words charged as perjury that the books had been burned on April 21st.
The sixth amendment to the Constitution gives the requirement for an indictment..
The clear and distinct negativing of the truth of a statement on which perjury is charged is a substantial and necessary part of an indictment. No indictment for perjury can be good without it.
Section 1025, Revised Statutes, cannot cure a defect which renders the indictment insufficient under the sixth amendment. As to this- section, Justice Piarían, spelaking for the Supreme Court in Markham v. United States, 160 U. S. 319, 326, 16 Sup. Ct. 288, 291 (40 L. Ed. 441), said:
“It is not to be interpreted as dispensing with the requirement in section 5396 [U. S. Comp. St. 1901, p. 3655] that ah indictment for perjury must set forth the substance of the offense charged. An indictment for perjury that does not set forth the substance of the offense will not authorize judgment -apon a verdict of guilty.”
See, also, Dunbar v. United States, 156 U. S. 192, 15 Sup. Ct. 325, 39 L. Ed. 390; United States v. Carll, 105 U. S. 611, 26 L. Ed. 1135;
