88 Vt. 223 | Vt. | 1914
The respondent was convicted of the crime of perjury at the March Term, 1913, of Chittenden County Court. The perjury alleged related to testimony given by him in the trial of one Louis Alpert who was prosecuted ¿t a special term of said court in January, 1913, for the crime óf receiving stolen goods. In the Alpert trial the witnesses' both for the State and the respondent, were ordered' to be excluded from the courtroom. Rosenberg was called as a witness by Alpert, whereupon the State' objected to his testifying on the ground that he had been in the courtroom'during the taking of a part of the testi
John IT. Mimms was the official stenographic reporter at the trial of State v. Alpert. At the time of the trial of the instant case the transcript of the Alpert trial was not completed. Col. Mimms was improved as a witness and, against the objection of the respondent, was permitted to read from his shorthand minutes concerning the order excluding witnesses. The ground of the objection relied upon was that the certified transcript of the proceedings in the Alpert trial was the best evidence by virtue of P. S. 1374 making such transcript evidence in any action, civil or criminal, if relevant thereto. The statute giving evidentiary value to the transcript does not affect the force of other evidence of the fact, nor render that incompetent which, in the absence of the statute, would be competent. See 2 Wig. on Ev. §1186 and cases cited. It is an enabling rather than a restricting statute. The order of the court excluding the witnesses in the Alpert trial was material and could properly be shown by the reporter, whose duty it was to take it down. It was held in State v. Camley, 67 Vt. 322, 31 Atl. 840, that it was not error to permit the reporter to read material testimony from his minutes;, but the objection in this case did not go so far as to raise that question. The other grounds of objection are not briefed and so are not considered. The exception cannot be sustained.
Against the objection that it was immaterial, the State was permitted to show by the same witness that respondent’s counsel had not requested him to transcribe his stenographic notes relating to the objection to the respondent’s competency as a witness in the Alpert case. The statute requires the reporter to fur
In the cross-examination of Col. Mimms, the fact was developed that his minutes showed that when the respondent was first called to the stand in the Alpert trial the oath was administered. That immediately thereafter the objection to his competency as a witness was interposed, following which the alleged perjured testimony was given. The respondent claimed that the oath taken related to his testimony in the Alpert case and not to the inquiry as to his having violated the order of exclusion. Certain of the State’s evidence tended to show that when the respondent, was called the State’s attorney raised the objection that some discussion followed; and that, pending the objection the court directed the oath to be administered. Later Col. Mimms was recalled and asked concerning his practice in making a record of objections that are made at a trial and what takes place in regard to a witness before he is sworn. Against the place in regard to a witness before he is sworn, witness answered: “I do not make a record of any informal objections before the witness is sworn.” In the circumstances the evidence was material. Unexplained, the reporter’s notes contradicted the other testimony. Their weight as evidence of the sequence of events leading up to the giving of the testimony in question
The respondent contends that he has been wrongfully convicted beca,use the oath administered to him did not relate to the examination as to his competency as a witness, and relies upon exceptions numbered in the bill, three, eighteen and twenty-one as raising this question. The third exception relates to the exclusion of an offer to show what was said by the court in the Alpert case “for the purpose of showing that the court itself, as a court, took the matter into consideration and that it was a hearing before the court and not for the jury, to meet the claim of the State’s attorney that * * * the oath administered was administered for the purpose of this examination; and also for the purpose of showing what was determined by the court itself at the time of considering the question whether or not Rosenberg was in the courtroom.” The offer does not disclose the statement by the court sought to be introduced. Standing as it does the record presents no question for review. The necessity for an offer in such circumstances is too well understood to require the citation of authorities. The twenty-first exception relates to a portion of the charge of the court in which the crime of perjury is defined. Respondent’s counsel have not attempted to point out wherein the charge in that regard was not correctly given. The question briefed was not raised by the exception.
A further ground of the respondent’s motion for a directed verdict was that there was no evidence tending to show that the alleged false testimony of the respondent was material to any issues raised or determined in the case of State v. Alpert. The respondent did not brief the exception to the overruling of his motion on that ground but in the closing argument his counsel claimed the benefit of the exception and argued the question orally. Counsél for the State did not brief the question but made
The rule that the matter sworn to must be material to the issue or question in controversy in order that perjury may be assigned upon it is elementary. While it is necessary that the false swearing be material, it need not- be material, to the main issue or question; but it is sufficient if it is material to a collateral inquiry in the course of the proceedings. 2 Bishop’s Crim. Law, §1032; 2 Wharton’s Crim. Law, §1277; Clark’s Crim. Law, 334; State v. Keenan, 8 Rich. Law (S. C.) 456; State v. Shupe, 16 Ia. 36, 85 Am. Dec. 485 and cases cited in note.
Chief Justice Holt in Rex v. Griepe, Holt, 535, says: “It is perjury to swear falsely in any circumstances which conduceth to the issue, or to the discovery of the truth, though if it be only in some impertinent or minute circumstance.” No question is made but that perjury can be predicated upon false swearing on the voir dire. The inquiry in which the alleged false testimony was given was certainly pertinent to the case on trial. The right of the respondent in that case to improve Rosenberg as a witness was challenged by the objection. The court, as an incident of the trial, was called upon to determine that question.'
There is considerable diversity o’f opinion as to the right of the court to exclude the testimony of a witness who has disobeyed its order for separate examination. It was said in Holder v. United States, 150 U. S. 91, 17 L. ed. 1010, 14 Sup. Ct. 10, that a witness who disobeys an order of withdrawal cannot be excluded from testifying on that ground merely, although the right to exclude under particular circumstances may be supported as within the sound discretion of the trial court. It is held in some states that where a party and his counsel are without fault that witness disobeys such order, the party shall not be deprived of the right of having the witness testify, but that the conduct of the witness may go to the jury upon the question of his credibility. Davis v. Byrd, 94 Ind. 525; Taylor v. State, 130 Ind. 66, 29 N. E. 415; Loughlin v. State, 18 Ohio 99, 51 Am. Dec. 444; People v. Viskniskki, 255 Ill. 384, 99 N. E. 621; 12 Cyc. 548 and cases cited.
It is probable that a majority of the cases hold that whether such a witness shall be examined or not rests in the discretion of the court. Wigmore states the rule to be that if the order of
Thus it is seen that the right of the court to exclude the testimony of a disobeying witness would be undoubted if the disobedience was wilful and aided or abetted by the party or his counsel. For additional authority, see Com. v. Crowley, 168 Mass. 121, 46 N. E. 415, and cases there cited; Johnson v. State, (Ala. App.) 62 So. 450; Kilgore v. State, (Okl. Cr. App.) 137 Pac. 364; 1 Bishop Cr. Pro. §1191; Whar. Cr. Ev. §446.
An. additional ground of the motion for a directed verdict was that the complaint does not show that the court has jurisdiction of the cause or matter under consideration at the time the alleged false testimony was given. The question of the sufficiency of the information could not be raised on a motion for a verdict. Having joined issue by his plea of not guilty
The respondent having testified that he was not in the courtroom during the examination of witnesses in the Alpert case, his counsel asked: Q. “During these two or three days did you give people the reason why you did not come to the courthouse?” The testimony was excluded and an exception allowed. The offer was to show only the fact that he gave a reason. The argument is that this evidence tended to characterize the actions and intentions of the respondent during the period of time referred to and to corroborate his testimony that he had kept out of the courtroom. The mere fact that he gave a reason for not attending court would have no such tendency as is claimed for it. It was not error to exclude the question.
The respondent called deputy sheriff Lord and, after, showing by him that he saw the respondent at the foot of the stairs in the courthouse and that he made an inquiry of the witness, asked: Q. “ What was that inquiry about ? ’ ’ The question was excluded under exception. The evidence was offered to characterize the respondent’s act and where he was going, but there was no offer showing what the inquiry was. That the exception is unavailing as error is not made to appear.
One Charles Bishop called by the respondent testified that he saw the respondent nearly every day during the progress of the Alpert case, usually at his store, and that the respondent had told him that he did not know how the case was progressing. He was then asked: Q. “State whether or not he gave you a reason, when you asked him about how the trial was going on, that he did not know?” To the exclusion of the question the respondent reserved an exception. Here, as before,, the offer was to show the fact that a reason was assigned and not the reason, “to make it more probable that he was there.” The mere fact that he gave a reason why he did not know how the
In the closing argument the State’s Attorney said, referring to the respondent: “He said he had minutes he could tell us of his whereabouts. Why didn’t he produce them 1 ’ ’ Upon respondent’s counsel objecting to argument, “of the absence of any evidence, absent at the trial of this case and not called for,” the State’s Attorney continued: “I say if Mr. Rosenberg had had any such evidence as that it was of the highest importance of his defence that he produce it and show the character of it and prove to you that he had such minutes from which to refresh his recollection and make his testimony more certain.” To this argument the court allowed an exception. The objection does not suggest that the respondent had not testified as argued, so we spend no time in examining his testimony. Assuming, as the objection does, that the tendency of the respondent’s testimony was correctly stated, the argument was legitimate. The respondent had attempted in his testimony to account for his whereabouts during the time it was claimed he was in court. If he had “minutes” that would corroborate his oral testimony which he had not produced, it was proper to call the jury’s attention to that fact in arguing his testimony. Blaisdell et al. v. Davis, 72 Vt. 295, 308, 48 Atl. 14.
Judgment that there is no error in the proceedings and that the respondent tahe nothing by his exceptions. Let execution be done. ' ■ ' .