Sharron v. United States
11 F.2d 689
2d Cir.
1926
Check Treatment
HAND, Circuit Judge

(after stating the facts as above). The chief question is whether the indictment is good. At common law it was necessary, not only to allege as *690part of the “assignment of perjury,” that the accused knew that the oath was false, and that in fact it was, but also what the truth was. Bartlett v. U. S., 106 F. 884, 46 C. C. A. 19 (C. C. A. 9); U. S. v. Pettus (C. C.) 84 F. 791. But the stringency of the law in relation to the crime has in some respects been moderated (R. S. § 5396 [Comp. St. § 1687]), and there seems to us no reason why, under R. S. § 1025 (Comp. St. § 1691), it should be any longer necessary to allege the truth.

The elements of the crime are quite adequately set out without that allegation, which is strictly not relevant at all; the truth being admissible only as evidence of the allegation of falsity.

We agree that Bartlett v. U. S. held the opposite, but Markham v. U. S., 160 U. S. 319,16 S. Ct. 288, 40 L. Ed. 441, is not to the contrary, and we think the matter still fairly open. In Kovoloff v. U. S., 202 F. 475, 120 C. C. A. 605, the Circuit Court of Appeals for the Seventh Circuit squarely held that no such allegation was necessary, accepting my own decision in U. S. v. Freed (C. C.) 179 F. 236, to which I adhered in U. S. v. Salen (D. C.) 216 F. 420. That Circuit Court of Appeals had the same question before it in Baskin v. U. S., 209 F. 741, 126 C. C. A. 464, but curiously enough avoided a decision, apparently forgetting Kovoloff v. U. S. The indictment there alleged that the accused knew to be true certain facts, the opposite of what he swore. This was treated as the equivalent of alleging the truth of the facts which the accused was alleged to have known. Yet there was no allegation of their truth. Perhaps the distinction is too fine, and in any event the ease can hardly be treated as an authority.

Hardwick v. U. S., 257 F. 505, 168 C. C. A. 509 (C. C. A. 9) was like Baskin v. U. S., in alleging only that the accused knew facts inconsistent with his oath, without alleging what was the truth. In Gregorat v. U. S., 249 F. 470 (C. C. A. 5) 160 C. C. A. 428, there was no allegation of the truth and the qourt recognized that the indictment would have been bad at common law. It appears to be an authority for the rule we adopt. In Atkinson v. State, 133 Ark. 341, 202 S. W. 709, a statute like R. S. § 5396, was held to justify the allegation of falsity, without more. It would be tempting to say with Atkinson v. State that the clause in R. S. § 5396, was a warrant for this holding; we mean that portion which requires only a “proper averment to falsify the matter wherein the perjury is assigned.” However, as this goes back to the statute of 23 Geo. II, c. 11, we can hardly take that course. Rather we prefer to rest our decision upon R. S. § 1025, especially in view of the present disposition of all courts to ignore formal defects which have no substantial relation to the merits of the controversy.

On the merits the case is perfectly clear. How there can be any doubt of the defendant’s guilt we cannot conceive. The proof from the cheeks and passbooks themselves, coupled with the oath and conviction to escape which the oath was taken, make a patent ease of perjury, sufficiently corroborated under the modern rule that documents will serve for corroboration. Indeed, the old canonical necessity of two oaths has now very little life left. The silly explanation of the defendant and his brother deserved less consideration from the jury than it got.

The supposed errors in the conduct of the case are trivial; they would háve been of no importance, had the defendant’s guilt been less apparent, and in so plain a case they require no comment.

Judgment affirmed.

ROGERS, Circuit Judge, dissents, without opinion.