State v. McLain

43 Wash. 124 | Wash. | 1906

Hadley, J.

The defendant was charged by information with the crime of perjury. He demurred to- the information and the demurrer was overruled. A plea of not guilty was then interposed, the cause was tried before a jury, and a verdict of guilty was returned. Thereupon, the defendant was sentenced to ten years’ imprisonment in the state penitentiary, and judgment was entered accordingly. He has appealed from the judgment. It is assigned that the court erred in overruling appellant’s demurrer to the information. For convenience we here set forth the recitals of the information in full:

“J. D. McLain is accused by the prosecuting attorney in and for Okanogan county, state of Washington, by this information, of the crime of perjury, committed as follows:

“That heretofore, to wit, on the 19th day of August, 1905, in the superior court of the state of Washington, in and for Okanogan county, held at Conconully, in said county, on said day, before E. S. Steiner, judge of said court, a certain issue in due form and manner joined in said court between the state of Washington, aforesaid, and J. D. McLain, this defendant, upon a certain information then and there pending in said court against the said J. D. McLain, by which said J. D. McLain, this defendant being, was charged with the crime of arson, in unlawfully, wilfully, maliciously and feloniously setting fire to and burning, in said Okanogan county, the barn of one J. D. Lyda, came on to he tried, and was then and there, in due form of law, tried by a certain jury of the county, in due manner returned, impaneled and sworn for that purpose, and that, at and upon the trial of said issue said J. D. McLain did then and there appear and was produced as a witness for and on behalf of the said defendant, J. D. McLain, this defendant being, upon the trial of the said issue, and the said J. D. McLain was then and there duly sworn as such witness as aforesaid, before Frank IT. Foster, who was then and there the duly authorized clerk of said superior court, that the evidence which he should give to the court and jury between the said state of Washington and the said J. D. McLain, the defendant, on the issue then pending, should he the truth, the whole truth and nothing but the truth, the said Frank H. Foster as such clerk aforesaid then and there having sufficient and competent power and authority to administer the said oath to the said J. D. McLain, in that behalf, and the said T. D. McLain being so sworn as aforesaid, it then and there upon the trial of said issue, became and was a material inquiry whether the said witness^ J. D. McLain, left the saloon of J. M. Eisley, in Okanogan county, state of Washington, on Friday the nineteenth day of August, 1904:, between the hours of 9 o’clock and 12 o’clock in the evening of said day and went directly to the dwelling house of one Mrs. Oort (Mrs. Carrie F. Cort, meaning), for the purpose of getting his laundried clothes, and then and there saw said Mrs. Oort, and then and there talked with said Mrs. Oort, among other things, about renting the honse the said Mrs. Cort was then living in, and whether he, the said witness, J. D. McLain, then and there obtained from said Mrs. Oort his laundried clothes, and whether he, the said witness, J. D. McLain, then and there went" from the dwelling house of said Mrs. Cort direct to the ranch and honse of one A. L. Davis situated 3*4 miles north of said town of Twisp, in Okanogan county, Washington and then and there went to bed; and the said witness, J. D. McLain, did then and there¹, upon his oath so taken as aforesaid in the said canse, feloniously, wilfully, falsely, corruptly, knowingly and contrary to such oath, depose and swear, amongst other things, in substance and to the effect, as true, following, that is to say, that he, the said witness, J. D. McLain was at Eisley’s saloon, in the town of Twisp; Okanogan county, state of Washington, on Friday the- nineteenth day of August, 1904, about ten o’clock in the evening of said day; tbat after remaining in said saloon for a while, he, the witness, J. D. McLain Went direct from said saloon to the dwelling house of one Mrs. Cort (Mrs. Carrie F. Cort, mean-' ing), in said town of Twisp, for his laundry, that he, said witness, remained at the said dwelling house of said Mrs. Cort for some time and then and there talked with said Mrs. Cort about leasing the house she then occupied and other matters; that he, the said witness, J. D. McLain, then and there obtained from said Mrs. Cort his laundry, consisting of a suit of underwear, a shirt and two pairs of socks, that he, the said witness, J. D. McLain,, on leaving the dwelling house of said Mrs. Cort, in said town of Twisp, went to the ranch and house of one A. L. Davis, situate 3*4 miles north from said town of Twisp; that he, the said witness, J. D. McLain, arrived at the house of said A. L. Davis about 12 o’clock on the night of said 19th day of August, 1904; whereas, in truth and in fact as he, the said witness, L. D. McLain, well knew, he the said J. D. McLain did not go> from said Eisley’s saloon to, and was not at, the dwelling house of said Mrs. Cort iu said town of Twisp, between the hours of 9 o’clock and 12 o’clock of the evening of said 19th day of August, 1904, nor during any portion of that time, nor at all, and did not obtain from said Mrs. Cort, nor at the dwelling house of said Mrs. Cort at any time of said evening, his or any washing whatever, that he the said witness, J. D. McLain, did not go direct from said dwelling house of said Mrs, Cort to the ranch and house of said A. L. Davis, as he well knew, between 'the hours of 9 o’clock and 12 o’clock of the evening of said August 19, 1904, nor during any portion of said time. And so. the said witness, J. D. McLain, feloniously, wilfully, falsely, corruptly, knowingly, and contrary to such oath as aforesaid, in the manner and form as aforesaid, did then and there commit the crime of perjury, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Washington.”

It is urged that the averments of the above information relate to a “certain information then and there pending in said court against the said -J. D. McLain,” and that a mere allegation that an information was “pending” is not sufficient. It is, however, specifically alleged that issue was joined upon such information, that the cause was tried in due form before a jury; that appellant was sworn to testify as a witness, and that he did testify to certain facts. It is therefore sufficiently alleged that the testimony was given upon the trial of an actual cause.

It is next contended that the materiality of the testimony given in the former cause is not shown in this information, either by direct averment or otherwise. The testimony must have been material to the issue being tried in the former canse in order to make it the foundation for prosecution for perjury. “Every person who . . . states as true, any material matter which he knows to he false is guilty of perjury.” Bal. Code, § 1185 (P. C. § 1695). It is alleged with sufficient clearness that appellant was tried in the former case- on the charge of arson, and that he denied his guilt. It is- also, alleged that it became a material inquiry in that ease as to whether the matters of which appellant testified and which are set forth in this inform,ation were true ior false; and it is alleged that they were false.. Sufficient appears from the averments to show that the testimony of appellant in the former' case was in. its nature an accounting for his whereabouts on the date named, and it is alleged that the truth thereof was a material matter for inquiry in the case. It is not directly alleged that appellant sought to prove an alibi in the former ease, hut such fact it seems to us is manifest from the reading of the information as it could have no other application. The testimony was material to that issuei, and inasmuch as it is alleged that it was material, we think it was sufficiently charged within the holding of this court in State v. Douetie•, 31 Wash. 6, Yl Pac. 556. It was held in that case that the averment that the stated testimony was material to the issue in the trial where it was given, and that it was false, was sufficient. Substantially the same contention was made there as is made here, and we therefore hold that this information is sufficient as against a general demurrer.

It is next argued that the sentence and judgment of the court were rendered upon a pretended verdict and not upon the actual verdict of the jury. -The verdict returned by the jury reads as follows:

“In the Superior Court of the State of Washington for Okanogan County.

“The State of Washington, Plaintiff, vs. J. D. McLain, De^ fendant. Ho. 0816. Verdict.

“We, the jury in the case of the State of Washington, plaintiff, against J. D. McLain, defendant, find the defendant guilty of the crime of prejury as charged in the information in the above entitled action.

“Dated at Coneonully, Washington, this Yth day of Hovember, 1905.

“Piled Hov. Y, 1905. Prank H. Poster, Clerk. H. H. Hickell, Foreman.”

In the judgment the verdict is specified as follows:

“Case Ho. 0816. Verdict of Guilty.

“We, the jury, duly impaneled and sworn in the case of the state of Washington, plaintiff, against J. D. McLain, defendant, find the defendant J. D. McLain guilty as charged in the information in the above entitled action.

“Conconully, Wash., November 7, 1905. H. H. Nickell, Foreman.”

It will be observed that the verbiage used in the judgment differs slightly from that of the verdict, but both refer to the same entitled cause, the same number, and the same date of filing. It was not necessary to' include the exact terms of the verdict in the judgment and the judgment is sufficiently authorized by the verdict in the record.

Since we find no reversible error, the judgment is affirmed.

Mount, O. J., Dunbar, Boot, and Ceow, JJ., concur.