State v. Jewett

Jun 26, 1906
Reporters:
, ,
Before:
Hailey
Mr. Justice Hailey

delivered the opinion of the court.

The defendant was indicted for subornation of perjury in violation of Section 1875, B. & C. Comp., which provides:

“If any person authorized by any law of this state to take an oath or affirmation, or of whom an oath or affirmation shall be required by such law, shall willfully swear or affirm falsely in regard to any matter or thing concerning which such oath or affirmation is authorized or required, such person shall be deemed guilty of perjury, and if any person shall procure any other to commit the crime of perjury, such person shall be deemed guilty of subornation of perjury.”

Section 1321, B. & C. Comp., provides:

“In an indictment for perjury, or subornation of perjury, it is sufficient to set forth the substance of the controversy or matter in respect to which the crime was committed, and in what court, or before whom,‘the oath alleged to be false was taken, and that the court or person before whom it was taken had authority to administer it, with proper allegations of the ‍​​​​‌‌‌​‌​​​​​‌​​‌‌‌​‌​‌‌​​​‌​​‌​​​​‌​​‌​​‌‌‌​​‌‌​‌​‌​‌​​​​​​‌‌​‌‌‌‌‌‌‌‌‌‌​​​‌​‌​​‌‌​​‌​‌‌‌​​​​​‍falsity of the matter in which the perjuryis assigned; but the indictment need not set forth the pleadings, record or proeedings with which the oath is connected, nor the commission or authority, of the court or person before whom the perjury was committed.”

Dnder this last section it is sufficient if the indictment sets *583forth, first, the substance of the matter in respect to which the crime is committed; second, before whom the oath alleged to be false was taken; third, that the person before whom it was taken had authority to administer it; and, fourth, proper allegations of the falsity of the matter on which the perjury is assigned. The defendant raises six specifiic objections to the sufficiency of the indictment in this case, which will be discussed in their order.

1. It is contended that the indictment does not allege that Emily A. Thatcher was duly sworn, and that the allegation “was in due manner sworn” is not sufficient, and is not equivalent to the expression “duly sworn.” This contention is not tenable, for it is sufficient to charge that the person was duly sworn without setting forth the form or manner in which it was done: State v. Spencer, 6 Or. 153; 2 McClain, Crim. Law, § 874; 16 Ency. Pl. & Pr. 331. The words “in due manner” have the same meaning as the word “duly:” 3 Words & Phrases, 2259-2264; Anderson’s Dict. Law, 385; 3 Century Dict. & Enc. 1795.

2. It is next claimed that the indictment does not allege that the application set out therein was made to the State Land Board of the State of Oregon, or that the affidavit had reference to that application, or that the person who signed the application is the same person who signed the affidavit, or that the lands described in the application are those referred to in the affidavit. The application is addressed to the State Land Board and is for the purchase of lands in Grant County, Oregon, and a copy of it is set out in the indictment. There is only one State Land Board in this state, and no board outside of the state has control of any of ‍​​​​‌‌‌​‌​​​​​‌​​‌‌‌​‌​‌‌​​​‌​​‌​​​​‌​​‌​​‌‌‌​​‌‌​‌​‌​‌​​​​​​‌‌​‌‌‌‌‌‌‌‌‌‌​​​‌​‌​​‌‌​​‌​‌‌‌​​​​​‍the state school lands within this state, so the application speaks for itself.

3. The indictment charges “that she, the said Emily A. Thatcher, then and there made application to purchase the following described school land, to wit,” and then describes the lands set out in the application; that the proposed purchase was made for the benefit of her, the said Emily A. Thatcher, and not for the purpose of speculation, and that she, the said Emily A. Thatcher, had made no contract or agreement, express or *584implied, for the sale or disposition of said aforedescribed lands, which said application, oath and jurat were then and there and are of the tenor following, to wit, and then sets out the application and affidavit in full. These allegations are sufficient to show that the affidavit had reference to the application and that the Emily A. Thatcher mentioned in each was one and the same person, and that the lands described in the application are those referred to in the affidavit.

4. It is claimed that it should have been alleged in the indictment. that the Oregon State Land Board was duly constituted as required by law and had authority or jurisdiction to consider or act upon the application of Emily A. Thatcher, and to allow her to acquire the lands. Under Section 5 of Article VIII of the Constitution of Oregon, the Governor, Secretary of State and State Treasurer constitute.the board of commissioners for the sale of state lands, and are, therefore, a constitutional board, and we do not think it necessary, in a case of this kind, to allege that such board was duly constituted, or to specify its authority over state lands.

5. It is next contended that it is not alleged in the indictment that there was any agreement or understanding between Emily A. Thatcher and the defendant that the application, oath, testimony or affidavit was made to be used to purchase or acquire the land described in the indictment or any other land; nor that said oath or affidavit was so used; nor that the defendant procured her to commit perjury for the purpose’ ‍​​​​‌‌‌​‌​​​​​‌​​‌‌‌​‌​‌‌​​​‌​​‌​​​​‌​​‌​​‌‌‌​​‌‌​‌​‌​‌​​​​​​‌‌​‌‌‌‌‌‌‌‌‌‌​​​‌​‌​​‌‌​​‌​‌‌‌​​​​​‍of enabling her to purchase said land or any other land. The indictment alleges that at the time Emily A. Thatcher was sworn before the notary she did not intend to purchase said lands for her .own benefit, but “for the purpose of speculation, and had, prior thereto, made a contract for the sale and disposition of said land to said Jewett, said contract then and there being in full force and effect,” and that the defendant knowingly and willfully incited her to testify falsely “in the manner aforesaid for the purpose herein specified.” It also alleges that the defendant procured her to take her oath to the effect that she “then and there made application to purchase” the lands mentioned in the indiotment, and that *585it was necessary for her to make the oath in order to enable her to procure and acquire from the state “the said’ aforedeseribed school lands,” and that she acquired by means thereof said lands from’ the State of Oregon for the purposes specified. This, we think, is a sufficient allegation of the facts showing the purpose for which defendant procured her to make and for which she made the false oath and affidavit and for which it was used. These allegations clearly show that at the time she made the oath she did so by agreement with defendant and at his instigation and to be used for the purpose of purchasing the lands from the State of Oregon, and that it was sp used. In addition it is also alleged that the testimony alleged to be false was material, thus bringing the indictment within the two methods used for showing the materiality of the testimony alleged to be false in indictments for perjury, to wit: (1) To allege generally that the testimony in question was material, or (2) to allege in the indictment facts which render the materiality of the testimony clearly apparent: 16 Ency. Pl. & Pr. 343; 2 McClain, Crim. Law, §§ 878, 879.

6. Objection is made that there is no averment in the indictment that Emily A. Thatcher had made a contract for the sale ‍​​​​‌‌‌​‌​​​​​‌​​‌‌‌​‌​‌‌​​​‌​​‌​​​​‌​​‌​​‌‌‌​​‌‌​‌​‌​‌​​​​​​‌‌​‌‌‌‌‌‌‌‌‌‌​​​‌​‌​​‌‌​​‌​‌‌‌​​​​​‍or disposition of the lands in case she was permitted to purchase the same, and it is claimed that the indictment should set out the terms of any alleged contract or the facts showing such alleged contract. The first objection is fully answered by the allegations to the effect that at the time she made the affidavit she did not intend to purchase the lands for her own benefit but for the purpose of speculation, and then had a contract to sell them to defendant, and that she well knew that her application was made for the purpose specified.

7. As to the second objection, the statute (Section 1321, B. & C. Comp.), says “the indictment need not set forth the pleadings, record or proceedings with which the oath is connected,” and we think it unnecessary, in a criminal action of this character, to allege the terms of the contract.

8. It is claimed that it is not alleged in the indictment that Emily A. Thatcher knew that any of the statements in her al*586leged oath were false, or that the respondent knew that any of the statements were false, or knew that she knew that they were false. The indictment alleges that she falsely, knowingly and willfully swore that the proposed purchase was for her own benefit, and not for the purpose of speculation, and that she had made no contract for the sale of the lands, and that at the time she so swore she did not intend-to purchase for her own benefit, and then had a contract to sell to defendant, and that she knew her application was made for such purposes, and that the defendant knowingly procured her to testify falsely in the manner aforesaid, and knew that she did not believe her testimony to be true. These facts, we think, sufficiently alleged knowledge on the part of both parties, if such allegation is necessary under our statute: State v. Ah Lee, 18 Or. 542 (23 Pac. 424).

9. If the necessary averments appear in any form or may by fair construction be found anywhere within the text of the indictment, it is sufficient: United States v. Howard (D. C.) 132 Fed. 334. While the ‍​​​​‌‌‌​‌​​​​​‌​​‌‌‌​‌​‌‌​​​‌​​‌​​​​‌​​‌​​‌‌‌​​‌‌​‌​‌​‌​​​​​​‌‌​‌‌‌‌‌‌‌‌‌‌​​​‌​‌​​‌‌​​‌​‌‌‌​​​​​‍indictment in this case is unnecessarily incumbered by what one author has been pleased to call “immense masses of surplusage,” yet we think it contains sufficient allegations to constitute the crime of subornation of perjury; It sets forth (1) the substance of the matter in respect to which the crime was committed; that is, the application to purchase school lands and the oath required therefor; (2) the name of the person before whom the oath was taken; (3) that he had authority to administer it; (4) proper allegations of the falsity of the testimony given before him and the materiality of the matter testified to; (5) proper charges of procurement on the part of the defendant, and those under Section 1321, B. & C. Comp., and No. 18 of the Forms of Indictments, 1 B. & C. Comp, p. 752 are sufficient to enable a person of common understanding to know what is intended: B. & C. Comp. §1314.

The judgment of the lower court will therefore be reversed, and the cause remanded for further proceedings not inconsistent with this opinion. Reversed.