25 F. Cas. 817 | U.S. Circuit Court for the District of Louisiana | 1877
The crime of subornation of perjury has several indispensable ingredients which must be charged in the indictment or it will be fatally defective: (1) The testimony of the witness suborned must -be false. (2) It must be given willfully and corruptly by the witness, knowing it to be false. (3) The suborner must know or believe that the testimony of the witness given, or about to be given will be false. (4) He must know or believe that the witness will willfully and corruptly testify to facts which he knows to be false. A careful scrutiny of the counts of this indictment fails to reveal any averment that the • défendants knew or believed that the testimony of the witness whom they are charged with suborning would be false, or that they knew it was false, or that they knew that the witness knew it was false, or that they knew that she would willfully and corruptly testify, or had willfully and corruptly testified to facts as true, knowing them to be false.
To make a good indictment for subornation of perjury the false swearing must be set out With the same detail as an indictment for^perjury, and the' indictment must eharge^that the defendants procured the witness to testify knowing that the testimony would be false, andino wing that the witness knew that the testimony he had given, or was about to give, was false, and.knowing that he would corruptly and willfully give false testimony. In the ease of Com. v. Douglass, 5 Metc. [Mass.] 244, the defendant was indicted for subornation of perjury. On the trial the court below instructed the jury that “if it was proved to them beyond a reasonable doubt that the defendant on the former trial for forgery (referred to in the indictment) put Fanny Cross-man on the stand or caused her to be put on the stand as a witness, knowing that she would testify as set forth in the indictment, and intending that she should so testify, and he put her on the stand, or caused her to be put on the stand for the purpose of her so testifying, and she did so testify and such testimony was false, and he knew when he put her on the stand, that if she did so testify her testimony would be false; it would be sufficient to prove that part of the indictment which alleged that defendant suborned Fanny Crossman to commit perjury as set forth in the indictment.”
This charge was assigned for error, and the supreme judicial court in passing upon it said: “The remaining exception to the charge of the presiding judge is of more importance, and is, we think, well founded. The jury were instructed that if certain facts stated in the exceptions were proved beyond reasonable doubt, it would be sufficient proof of that part of the indictment which charged that the defendant suborned Fanny Crossman to commit perjury. Now; we are of opinion that all these facts might exist and yet the defendant might not be guilty of the crime charged in the indictment. The defendant might know or believe—for he could not know with certainty—that the witness whom he called would testify as she did, and he might know that her testimony would be false, but if he did not know that she would willfully testify to a fact knowing it to be false, he could not be convicted of the crime charged. If he did not know or believe that the witness intended to commit the crime of perjury, he could not be guilty of the crime of suborning her. To constitute perjury the witness must willfully testify falsely, knowing the testimony given to be false. 1 Hawk. P. C. e. 69, § 2; Bac. Abr. ‘Perjury,’ A; 2 Russ. Crimes, 1753. A witness, by mistake or defect of memory, may testify untruly without being guilty of perjury or any other crime.” Subornation of perjury is in its essence but a particular form of perjury itself. 2 Bish. Cr. Law, § 1197. See, also, Whart. Prec. Ind. pp. 598, 599, forms c, d. See, also, form of indictment in Archb. Cr. PI. & Ev. pp. 575; 577. See same form, 2 Bish. Cr. Proe. § 878; State v. Carland, 3 Dev. 114.
Tested by these authorities, both counts of the indictment are bad, first, because they do not aver that the defendants knew that the testimony which they instigated the witness to give was false, and second, because there is no averment that the defendants knew that the witness knew that the testimony she was instigated to give was false.
Demurrer sustained.
[NOTE. The defendants were, at the same term of the court, indicted for conspiracy with intent to defraud the United States. A demurrer to the indictment was overruled. See Case No. 14,948.]
