27 F. Cas. 1175 | D. Or. | 1870
The motion for a new trial is based on the following grounds: (1) Misconduct of James Winston, one oí the trial jurors. (2) Newly-discovered evidence. (3) Insufficiency of .the evidence'to justify the verdict. (4) That the verdict is against law. (5) That the defendant was taken by surprise by the testimony of Mellen, the assistant assessor.
On the first trial, when the prosecution offered in evidence the defendant’s statement of income for the year 1868, the defense objected to the proof because the assignment of perjury in the indictment was too general—merely negativing the words of the affidavit—while it should have been assigned specially upon some particular fact or matter sworn to by defendant. The court ruled that the objection should have been taken'by motion or demurrer; and that after the plea of not guilty it came too late; but in order to apprise the defense of what particular fact or matter in the statement the prosecution relied upon to show the falsity of the affidavit, the court required the latter to elect and declare in what particular it expected to prove such statement false. The prosecution then elected to prove the statement false in subdivisions 5 and 13, relating respectively to income derived “from profits realized by sales of real estate purchased since December, 1868,” and the “profits on the sales of gold or stocks, whenever purchased;” but in fact the evidence was confined to the matter of profits arising from the sale of stocks. On the second trial the same formal proceedings were not had upon this question, but the rule established on the first was followed without question, and the evidence of the prosecution upon this branch of the case was confined to the question of whether or not the defendant had made profits from the sale of stocks during 1868.
The statement of the defendant’s income was in the usual form of blank 24, and purported to be a “detailed statement of the income, gains and profits of W. K. Smith, of Salem, Oregon, during the year 1868.” The gross amount of income in currency contained in the statement was $7,617.14, which was stated in detail under the various subdivisions as follows: First—from profits in any trade, business or vocation, etc., $3,849. Third—from rents, $400. Eighth— from profits in corporation, not divided, $766.66. Tenth—from interest otherwise than on United States securities, $640. Eleventh—from salary other than as an officer of the United States, $1,861.48. The deductions amounted to $1,579.86, leaving the taxable income, returned by the defendant, to be $5,937.28. No income was returned by the defendant under the subdivisions 5 or 13.
As to the alleged misconduct of Winston, the facts appear to be as follows: Being returned on the venire to serve as a trial juror at the term at which the defendant was to be tried, he was drawn by the clerk in the formation of the jury in this case. Being sworn concerning his qualifications to sit on the jury, on examination by defendant’s counsel, he stated that since he was summoned as a juror, and since his arrival in the city, he had a casual conversation with Dr. Cardwell about this case, but that he had no decided opinion as to the merits of it. The defense interposed no challenge, and after some deliberation, accepted the juror, and he was sworn. At the same time the court directed a rule to be entered and served upon the juror, requiring him to appear and show cause why he should not be punished as for contempt, on account of his engaging in conversation with third parties concerning cases pending in this court after he was summoned to serve therein as a juror. On July 16, two days after the jury had given their verdict, Winston showed cause, and answered that he had had a brief conversation with Dr. Cardwell concerning this case after he was summoned as a juror, which arose in this way: Winston’ stated to Cardwell that he was here as a juror and would consequently be in the city for some time, when Cardwell remarked that he supposed the Case of Smith would come up for trial. Winston replied, by asking what kind of a cause it was? Cardwell answered, that Smith was accused of makiug and swearing to two different income returns the same year. Winston replied that it must be some sharp practice to get rid of the income tax. Winston also stated that it was in nowise his intention to prejudice his mind in relation to this case or disqualify himself to sit therein as a juror. Upon reading the answer, the court discharged the rule on payment of the costs by Winston. If a challenge had been submitted to this juror for bias, it might have been
But the decisive answer to the motion on this ground is, that the defendant accepted-.this juror with a full knowledge of the fact that he had conversed with Cardwell about the case, and had gotten some impression about it from such conversation. A party who knows of a ground of challenge, and does not ■seasonably take it, must be deemed to have waived it. 2 Grab. & W. New Trials, 247; Davis v. Allen, 11 Pick. 407. If the defense supposed that this impression was in their favor, as it is quite likely they did, and accepted the juror on account of it. they took their chance so far for a favorable verdict, and must abide by the result. But counsel for the defense say now, that if they had known the nature of this conversation, they would not have accepted the juror. But counsel are ■aware that, according to the practice of this court, the defendant was not entitled to know the particulars of this conversation nor the nature of the impression produced by it, if any. It was sufficient if the juror disclosed the fact that he had had a conversation upon the subject, and with whom, and whether he had formed an opinion as to the guilt of the •defendant from such conversation. But if this were otherwise, the defendant cannot now complain of the want of this information, because the juror was not interrogated on this point. He was only sworn to answer questions touching his qualifications, and he was not bound to volunteer information beyond the •scope of the inquiries propounded to him. If the defense accepted this juror in ignorance of the nature of this conversation and the im- i pression produced by it, this is no ground for ¡ a new trial. They were either not entitled to such information, or otherwise they neglected to ask for it when they knew of its existence. The defense, as must be presumed, supposing that Winston, notwithstanding the conversation or on account of it, was comparatively a safe juror for them, accepted him, cannot now be heard to object to the verdict on that account. In the statement of this matter in the motion, it is said that Winston swore on his voir dire, that he was an “impartial juror.” This is a manifest mistake. Whether the person drawn as a juror is impartial between the parties or not, is a question to be tried and decided by the court, and not the witness. The juror was examined at some length, and the substance of his testimony was, that he had had the conversation as above stated, but had formed no decided opinion as to the guilt or innocence of the defendant. He may have also stated that he thought he could try the case according to the evidence. Counsel sometimes ask such questions, and they are allowed to be answered because not objected to. In any event, I have no doubt that he told the truth, for he learned nothing in such conversation upon which to form any opinion as to whether the defendant was guilty of the crime of perjury. There is no reason to suspect that the juror acted from improper motives, or that any person ever sought to prejudice his mind against the defendant. It was admitted by counsel, on the argument, that the juror was otherwise an unobjectionable man, and I can see no reason to doubt that he formed and gave his verdict according to his oath, upon the testimony given him in court, and not otherwise.
Before considering specially the second and third grounds of the motion, it will be necessary to state the substance of the case as it appeared before the jury. During 1862 and 1S65, and the years inclusive, the defendant became the owner of eleven shares of the Wallamet Woolen Manufacturing Company stock, at Salem, at a cost of $350 to $830 in coin per share, the aggregate cost being $7,-480. Early in the year 1868, he disposed of this stock to Robert Kinney, for cash, notes and property, then valued by the parties to be worth in the aggregate $33.000 in coin; namely, cash $10,000; about ten acres of land, with grist-mill and four-mule team and wagon, at McMinville. valued at $10.500 ; 960 acres of land, with live stock, in Chehalem Valley, valued at $6.000; Kinney’s notes, bearing interest and secured by a deposit of two shares of the stock, for $6,500. On July 10, 1868, the defendant sold and conveyed the McMin-ville property, except the mule team, to John Saxe for $9,500 in coin. Saxe paid $1,000 down and gave his three notes in equal sums for the remainder of the purchase money, payable in one, two and' three years, with interest at one per centum per month, and secured by mortgage upon the premises. During the time the defendant owned these shares, the Wallamet Woolen Manufacturing Compa
The foregoing statements were not questioned on the trial, and 1 have stated them as facts established in the case. The evidence in support of them was ample and uncontradicted. The calculations were made by the district attorney and read to the jury without question on the argument, and therefore I have adopted them without verifying them.
W. A. K. Mellen, the assistant assessor for the Fourth division, including Salem, testified that the defendant, then living at Salem, on March 22, 1869, in pursuance of a notice and blank from his office, appeared before him at Salem to make his statement of income for 186S. Mellen had heard of the sale of stoeks to Kinney, but was not aware of the details of the transaction, nor had he any knowledge of what the stocks cost the defendant. After the defendant had made the statement of income as above set forth, Mellen called his attention to this transfer of stocks, and told him that the law required him to make out an exhibit of the facts. Defendant said that he had returned all the income that he was entitled to, and refused to make any statement of income under subdivision 13. In the course of the conversation upon this subject, which lasted about fifteen minutes, defendant admitted to Mellen that he got $10.000 cash from Kinney, but did not inform him further as to the nature of the consideration which he received, and claimed that the transaction was a swap, and therefore no profits had arisen from it to be returned. Mellen replied, that he ought to return the shares represented by the $10,000 cash. The defendant refused to do so, and swore to the statement as above stated, without inserting any sum as profits derived from the sale of stocks.
Afterwards, Mellen gave defendant notice to appear and show cause why his statement of income should not be increased $20,000, on account of this stock transaction. In pursuance of this notice, and between April 1 and 4, the defendant appeared before Mellen, at Salem. Mellen then told the defendant that he had increased his return so as to get from him a statement of this stock transaction, and that if defendant would give witness the figures of the purchase and sale, and that made the profits less than the increase, he would reduce it. Defendant then contended that the profits on the stock had already been returned and paid tax as undivided profits of Wallamet Woolen Manufacturing Company; and said that he could not give a statement of the facts as to the cost and sale of shares, because his memorandum book was in Portland. Mellen then told him that he could appear before Mr. Frazar, the assessor at the Portland office, and attend to the matter there.
Thomas Frazar, the assessor for the' district of Oregon, testified, that prior to April 10, 1869, defendant came to his office and said that he and Mellen had disagreed about his income return, and Mellen had sent him to witness’ office to arrange the matter, and he wanted to make his return here, as he was coming here to live. Witness asked if defendant had any statement to make up income from? Defendant said, none. Witness asked defendant for memorandum book containing cost of stock. Defendant said he had lost it. Witness said he could not make up a return without some statement, and have to estimate return and assess penalty. Defendant said he had not a scratch of pen to tell what he gave for the stock or what he sold it for. About April 12, defendant returned and handed witness a statement in pencil writing, which was produced by the witness and read to the jury. It set forth, that defendant “sold, traded and transferred, on October 9, 1868, nine shares of Wal-lamet Woolen Manufacturing Company stock, the proceeds of trade used, as I remember, in payment of my liabilities in taking up a note held by Ladd & Tilton for between $4,000 and $5,000, including interest, and in paying for sawmill, etc., altogether amounting to, I think, $10,000, and real estate in Yamhill county.” Then follows, to the effect,, that John F. Miller had offered to trade defendant Portland property for four of his shares, and the most he could get offered for the property was $4,000. That subsequently, Miller offered to. sell defendant his shares for $2,250 per share, and defendant would have taken much less for his in cash, but could get no offer. That defendant could only approximate to cost of shares: “Eight or ten shares were offered to the company before I went to California, at $1,000 per share, I think in the spring of 1863, and subsequently were purchased; and I had to take them, or a large portion of them, paying large interest until they were .paid for. On the early purchases of the stock the rate of interest was high; I remember paying high interest on a ’large
On the same day the defendant came into the office and said: “What’s the matter?” Witness said that defendant’s statements were not satisfactory. Defendant said that he had made all the statements he could make. Witness then asked defendant if he was willing to make an amended return upon the basis of the statement and figures that he had given witness at last interview? Defendant said he was. Witness then took a blank and filled it up with the same sums as the first one made before Mellen, except that under subdivision 13 he inserted as profits on sales of stocks the sum of $5,320. .The defendant then signed the return and swore to it; after which he said: “I suppose I may have my first return now.” To which witness answered, “No—that’s a record of the office.” Witness then said to defendant: ‘What am I to think of a man who, while an officer was assisting him to make bis return, would make such a false statement to him as defendant did to witness a few days before? That defendant had estimated the value of the McMinnville property to witness at $5,000, when he had sold it months before at $9,500.” To this defendant made no particular reply, but left the office. Witness also stated, that in one of the conversations, and he thinks the first one, defendant claimed that the disposition of the stock was not a sale, but a trade. On the cross-examination, witness stated that he did not inform defendant at the last interview what .he had learned of the sale of the McMinn-ville property; and that he did not do so, because he wanted to see if the defendant would swear to what he knew to be false; and also, that he had not said to Mellen that he would get defendant to sign the second return, and then prosecute him; but that he was very indignant at the time, and probably said defendant ought to be prosecuted.
Joseph S. Watt testified that he knew the 960-acre farm in Yamhill county, that defendant received from Kinney; that about two years ago, some time in 1868, the defendant wanted to sell it to him, and asked $10 per acre for it and that at that time and since it was worth in cash $7 per acre.
William S. Ladd, called by the defendant testified that on June 13,1868, the defendant paid him a note of $4,000, with $104 interest upon it and that the defendant did not pay him any other interest during that year.
John H. Hayden, called by the defendant testified that on March 28, 1868, the defendant became an equal partner in a certain sawmill and business in the city with himself and Carter, and that the net profits of the mill for the year were $10,000 in coin, of which the defendant received about $2,500. This sum converted into currency at the above rate gives $3,333.
John F. Miller, called by the defendant, testified that in June, 1868, he offered seventeen shares of Wallamet Woolen Manufacturing Company stock to defendant for $2,250 in cash per share; that he was not able to state that there was any change in the value of shares between January and June, 1868, and that he thonght the shares were worth more in 1867 than at any other time.
The newly-discovered evidence upon which the defendant asks for a new trial is set forth in the affidavit of the defendant, and the accompanying ones of S. A. Clarke, A. J. McEwan and J. S. Smith. By the affidavit, of Clarke, it appears that on May 5, 1868, he was editor of the Daily Becord, published in the town of Salem, and that
To be entitled to a new trial on the ground of newly-discovered evidence, the party must satisfy the court that the evidence has come to his knowledge since the trial—that he has discovered it Grah. & W. New Trials, 1021. Now, it is manifest and practically admitted that these facts were within the knowledge of the defendant before the first trial—in fact, ever since they occurred. It matters not that the defendant did not communicate them to his counsel, because they must have been discovered since the trial by the party, and not his counsel. Id. 1093. If this were otherwise, a party might always secure to himself a new trial by withholding from his counsel some material fact until after a verdict had gone against him. Applications for new trials upon the ground of newly-discovered evidence are liable to great abuse, and are therefore regarded with jealousy and construed with great strictness. Id. 1021. Indeed, I cannot but express my surprise that counsel could consent to maintain before a court that this was newly-discovered evidence.
Again, if the evidence were newly discovered, the court must be satisfied, before granting a new trial, that it is so material that if would probably produce a different verdict if the new trial were granted. Id. 1021. Now, none of this evidence bears directly upon the main question tried by the jury—the willful falsity of the oath of March 22—upon the point, whether the defendant made any profits, or not, in 18C8, from the sales of stock, whenever purchased. The evidence of Clarke upon this question amounts to nothing. If anything, it proves, that on May 7, 1868, both the defendant and Kinney admitted that there was a sale of eleven shares of this stock for nearly $3,000 per share, although on the trial there was a weak attempt to prove that it was an exchange of stock and property at fictitious values. The paragraph from the Daily Record discloses no details of the stock transactions of the defendant except the sale of eleven shares at $3,000 per share. Now, Mellen testified on both trials, that he had heard of the sale. But when defendant said it was a “swap,” he wanted to know the details as to what property he got for the stock, and more than all, what he gave for it. It cannot be pretended that there is any information in the paragraph upon these subjects, and these are the details that Mellen professed to be ignorant of, and tried in vain to get the defendant to inform him concerning. Indeed, on the principal point—the cost of the stock—the defendant professed to be ignorant himself. And again, if Mellen knew all about the purchase and sale of the stock, I am at a loss to conceive how that excuses or justifies the defendant for committing a mistake or falsehood in stating his income.
Before noticing specially the evidence of McEwan, it must be stated, that Mellen testified that defendant, after returning or stating the items of salary, rent and undivided profits, proposed to return a gross sum under subdivision 14, of either $1,700 or $1,170, and that he objected, and said it must be “itemized,” whereupon defendant said it was for
I see no reason to believe that if this letter had been before the jury, that it would have benefited the defendant. The facts contained in it, and the circumstances surrounding it, are ambiguous and as easily resolved against the defendant as for him. At that rate, his share of the profits for nine months was only §1,189.79, when in fact they were §2,500; and this fact had been ascertained and declared in the partnership, and Mr. Hayden had made his return for his portion accordingly to the Portland office. Is it likely that a jury would believe that a man of defendant’s shrewdness and concern for his own affairs, was unaware of the real profits of the mill for 1868 at the time he made his return to Mel-len? I think not. It must be admitted that the circumstances of the gross discrepancy between the sum proposed to be returned by defendant as mill profits and interest, and the true amount of mill profits, as shown by Mr. Hayden’s testimony, ■ may have had some weight with the jury, and helped their minds to the conclusion that the defendant was capable of deceit, and disposed to act disingenuously throughout the transaction. But it does not lie in the mouth of the defendant to complain of this result The question at issue was the truth of the return as to the profits on the sale of stock, and not as to the mill profits. But the defendant thinking to get some advantage before the jury, offered the testimony of Mr. Hayden upon the latter point The prosecution consented to its introduction, and if the result has been to the prejudice rather than the benefit of the defendant, he must submit to it
As to the evidence of Mr. Smith; what the defendant said the McMinnville property was worth, was not the question before the jury, but what did he realize from it? Yet, the defendant having deliberately stated to Mr. Erazar in May, 1869, that it was only worth §5,000, and at the same time having sworn to a statement of income based upon the same value, when the fact was, he had sold the property, without the four-mule team, ten months before, for §9,500, the impression made upon the jury by these facts must have been against the defendant’s veracity and the integrity of his intention. Would Mr. Smith’s testimony probably change that impression upon another trial? He may be well satisfied, as he says, that his brother was honestly of the opinion that this property was not worth • more than §5,000, and that he had no security' for the remainder of the purchase money except the property, and therefore his notes were of no greater value than that sum. But to say the least of it, it is a very improbable stoiy, and one that it cannot be presumed would outweigh in the minds of an intelligent jury the well established facts to the contrary.
It seems very strange that any man in this country, of common sense and the most limited experience and observation, should not have known that the maker of a promissory note is personally liable for its payment, although it may be also secured by mortgage; particularly, when it is remembered that the statute of the state expressly provides that the maker of such note shall be so liable in case the proceeds of the mortgaged property
As to the value of the property, it is not pretended that any person can be found who will swear that it was worth materially less than the defendant sold it to Saxe for. Nothing of the kind was offered on the trial. The value of the property now and at the time the oath was taken is a subject upon which there is abundant testimony in the neighborhood of McMinnville. If the defendant had any good reason for believing or asserting that the property was only worth .$5,000, other persons would have substantially coincided in that opinion and supported it by their testimony, if called upon.. Mr. Saxe was upon the witness-stand • and appeared to be a sensible, shrewd man. It is not likely that he would purchase a piece of property not worth more than $5,000 for $0,500, and pay $1,000 of that sum down. In corroboration of this opinion it may be observed he appears to have prospered by the purchase. He paid the first note when it became due on July 10, 1869, before the first trial, and probably before the conversation between Mr. Smith and defendant, in which the latter is alleged to have expressed his fears that the property was not sufficient security for the money due, and that he was afraid he would have to take it back. It is also fair to presume that the second note was paid before the second trial. Mr. Saxe did not so state, but he was not asked the question. The defendant knew whether he had or not, and if he had not, would have shown it. Indeed, taking everything into consideration, there is not a single reason to believe, or even suppose, that this property was not ample security for the sum of Saxe’s notes—$8,500—when the defendant made this oath and since.
Although, as has been shown, the court is not authorized to grant a new trial on account of this evidence because it is not newly discovered, but was known to the party before the trial, yet if this were otherwise, this examination of it shows that it is not a sufficient ground for a new trial, because it does not appear to be so material that it would probably produce a different verdict if the new trial were granted. Indeed, I think that the impression of the defendant was almost, if not altogether, correct, that these matters were not material, and therefore he did not communicate them to his counsel before trial.
Before proceeding to consider whether the evidence is sufficient to justify the verdict, it will be proper to state the substance of the charge to the jury upon the questions of law involved in the verdict. The court instructed the jury in substance and effect:
I. That the acts and amendments thereto upon the subject of assessing and taxing incomes, namely, the act of August 5. 1861; July 1, 1S62; June 30, 1864; March 3, 1805, and March 2, 1807, were acts in pari ma-teria, or upon the same matter, and to be considered as one continuing and continuous act, and that therefore the defendant was bound to state and return for taxation as income all gains and profits derived from the sale of stocks in 1868, whenever purchased, so that they were purchased since August 5, 1861; and that by the terms of said acts and amendments thereto, a tax was imposed upon all gains, profits or income derived from any source whatever, unless specially excepted, and that therefore all gains and profits derived from the sale of stocks was taxable as income, whether such gains and profits were specially mentioned therein as being subject to taxation or not.
n. That the jury were first to inquire whether the affidavit of March 22, 1869, was false or not in the particular alleged; that is, had the defendant derived any gains or profits from the sale of stocks in 1868, which were taxable as income. That a mere exchange of property, as of the Wallamet Woolen Manufacturing Company stock for land or other property, was not a sale of stocks, from which profits were derived to be returned for taxation as income; because, although it might appear that one party or the other had gained by the exchange, that is, got property of greater value than what he gave cost him, yet this apparent gain might turn out otherwise, and is not realized until the property obtained is converted into cash or its equivalent. That these remarks must be understood as applying only to the case of an actual exchange of property in good faith. But where the parties to a transaction which is in fact a sale, attempt to clothe it with the forms and give it the appearance of an exchange, for the purpose of avoiding the payment of taxes on the profits derived therefrom by either party, the jury would be authorized to look through this disguise and deal with the matter according to the fact. That the estimated profits on the defendant’s stocks for the years 1864r-5-6-7, upon which the defendant, or the Wal-lamet Woolen Manufacturing Company for him, had paid income tax as undivided profits, was not liable to taxation again upon the sale of the stocks, and therefore the defendant was not bound to state the amount of such estimated profits in his return for 1868. But a transfer of stock, for which the seller takes a promissory note, is to be considered a sale for cash, provided the note is good and collectable, and an exchange of stocks for land, followed by a sale of the land within the year for cash or good and collectable notes, is to be considered as a sale of stocks for so much cash.
III. Apply these rules to this transaction. For instance, it appears that the defendant received from Kinney, for eleven shares of stock, property, notes and cash, valued by the parties at $33,000 in coin. Deduct from this, $0.000 for the 960-acre farm, which was only an exchange of property, and also $1,-
IV. If you find that the oath of the defendant was false, the next and most serious question for you to determine is, whether it was knowingly, willfully and corruptly so. If the oath was intentionally taken by the defendant, knowing it to be false, or having no reason to believe it to be true, and for the purpose of gaining some advantage to himself, or defrauding or injuring any other, then he committed the crime of perjury. This is peculiarly a question for the jury to decide. In passing upon it, you should carefully consider the whole conduct of the defendant and the officers before whom the proceedings took place in which the oath was taken, and the attendant circumstances as they appear to you from the testimony. If the defendant, as a matter of law, honestly believed that he was not bound to return any profits from the sale of stocks for taxation, then, although he was mistaken and the oath be false, he did not commit the crime of perjury. In other words, a party cannot be convicted of perjury when the falsity of the oath is not attributable to a corrupt intention, but to an error of judgment or a mistake as to the law or facts. Therefore, if it appears probable from the testimony that the defendant took this oath, honestly believing that the law did not require him to return any profits on the transaction in question, you should find him not guilty. But if you should be satisfied that the defendant had no reason to believe that the law did not require him to return this sale of stocks for taxation, and that his refusal to do so for the reasons then given to the assessors was a mere quibble and pretense to avoid the payment of taxes which he justly owed the government under which he has lived and prospered, your conclusion should be otherwise.
Counsel for the defendant have taken occasion to speak before you of the law assessing and taxing incomes as an unjust, harsh and inquisitorial one. It is hardly necessary for me to remark that such assertions or considerations are not to influence your action one way or the other. Courts and juries are organized and maintained to administer and enforce laws, and not to question or pass upon the policy or propriety of them. The whole people of the United States, by their representatives in congress assembled, have determined that the law taxing incomes is needful and proper for the purpose of raising revenue. There being no question as to the constitutionality of the law, it must be enforced until the law-making power determines otherwise. Besides, in my judgment, there is no tax imposed in the United States which is generally more just and expedient than the one upon incomes. It is a tax not upon unproductive property or a venture or business which may yet prove profitless, but upon actual gains—upon prosperity—upon realized wealth. True, it is inquisitorial to some extent; but so are all laws providing for the collection of revenue. No tax can be fairly and intelligently, imposed in any community without special inquiry in the affairs or condition of the party to be taxed. The state law imposing direct taxes requires the individual to make a sworn statement in writing of all the articles of property of which he is possessed, subject to taxation, including money, notes, etc. The law requiring deeds and mortgages to be registered exposes the privaté transactions of the parties thereto to the knowledge of the public; and upon its first introduction in England, was seriously objected to on that ground.
Again, if the incidental effect of the income act is, to give to each man some general knowledge of the pecuniary affairs of his neighbor, what harm is there in it? No honest man can be prejudiced in any community by a truthful statement of his income; and if dishonest ones or shams are thereby prevented from shirking their just share of the public burdens or imposing upon the community, so much the better. The only plausible objection that I ever heard to the law, is that it has not been generally enforced. That objection can be made to all laws imposing taxes; but if juries do their duty, this one will not be more liable to it than others.
Upon the first trial I was not satisfied whether an exchange of stocks for property should be held to be a sale or not. and therefore did not pass upon the question in my charge to the jury, but instructed them as upon the second trial, that however the law
The sufficiency of the evidence to • justify the verdict will next be considered. In the motion it is stated that the evidence is insufficient to justify the verdict because it “did not show that the oath was false; or if false, that it was knowingly or ■' corruptly taken.” The falsity of the oath is a plain question of fact. It seems to me that there can be no two opinions about it, and that it was false beyond a doubt or peradventure. Notwithstanding this, the defendant may have taken the oath innocently and without committing the crime of perjury. That depends upon whether it was knowingly and corruptly taken. This is a question of intention, and belongs almost exclusively to the jury to determine. Its determination involves the questions of what facts and circumstances were proven in the case, and what were left doubtful, the credibility of the witnesses and the weight to be given to their- testimony and the inferences to be drawn from particular facts, acts and omissions. A court is not justified in setting aside any verdict unless it be clearly against the weight of evidence, and upon such a question as this, it must be manifest from all the evidence that the verdict is not right, before it ought to be set aside. 6rah. & W. New Trials, 1239. It is not necessary in passing upon this motion to express an absolute opinion upon the question of the defendant’s intention in this matter. Suffice it to say upon this point that in my judgment the weight of evidence is with the verdict.
The conduct of the defendant in the transaction, in most particulars of importance, was disingenuous and does not indicate integrity of purpose. For instance, if he had honestly thought for any reason that he was not bound to return this sale of stocks in his statement of income, how easy and natural it would have been for him, when asked about it by the assessor, to have candidly stated all the facts and given the reason for his opinion, and adhered to it until he learned better. Instead of this, he refused to disclose almost everything about the transaction. He asserted, and continued to assert, that he did not know what his stock cost—a matter which it was his business to know, and which the prosecution had no difficulty in proving; and finally, when he gave Mr. Frazar the cost, as the testimony shows, :he stated it far above the fact. At first, he gave as a reason for not stating the matter ■in his income return, that it was a “swap” or trade. At the next interview with Mel-len, nothing is said about its being a “swap,” but he asserted that the gains, if any, had ¡already paid tax as undivided profits—an assertion which, as the testimnoy shows, was materially untrue. When driven by the fear of penalties and increased income to submit to make a statement of the transaction to Mr. Frazar, he deliberately asserted that the 960-acre farm was only worth $2.50 per acre, when it was valued in his trade with Kinney at $6,000; and when he had asked Mr. Watt $10 per acre for it, and when it appears from the uncontradieted and every way credible testimony of Mr. Watt, that in 1868, and since, the property was worth at least $7.00-per acre, or $6,720-; also that the McMinn-ville property was worth only $5,000, not disclosing the fact that there was a valuable grist-mill upon the land, situated in one of the best and most convenient wheat regions in the country, and directly concealing the fact that in his trade with Kinney it and the mule team were valued at $10,500, and that he had sold it without the team ten months before to Saxe for $9,500—$1,000 of which was paid down; and last, but not least, to save the payment of penalities, without any apparent change of opinion in the premises, he consented to, and did, make oath to the second return of May 7, which was not only itself false as to the profits on the sale of stocks, but in direct contradiction of the oath to his first return upon this point.
There is nothing of importance in the evidence to counteract the force of these and other like circumstances which tend to show that the defendant was not very scrupulous about the truth, and that he intended to obtain some advantage to himself by avoiding the payment of taxes due the government. The weight of the evidence is with the verdict, it was technically sufficient, and as the court cannot say that it was wrong, it must not be set aside upon this ground.
In support of the fourth ground for new trial, the motion states: (1) That the law did not require the defendant to take the alleged oath, and that it was extra-judicial. This point was not raised on the trial, nor argued on the hearing of the motion, and I suppose counsel do not rely upon it. The answer to it is apparent. It is true that the law did not compel the defendant to take this oath. He might have allowed the assessor to make up his income from other information; but it permits the defendant to take the oath and be a witness in his own favor in the matter of ascertaining the amount of his income; but if he voluntarily avails himself of this privilege, he is bound to tell the truth—and the law declares that if he knowingly and willfully swears falsely, he shall be deemed guilty of perjury. IS Stat. 239. (2) That the law did not require the defendant to return any income on account of the alleged sale of stocks. The questions made under this head were not argued by counsel for the motion, and I suppose were passed upon by the court in the progress of the trial and the instructions - to the jury. In the argument of the motion, I understood the learned counsel to say that he regarded the instructions to the jury as cor
The fifth and last ground of the motion is the allegation of being taken by surprise in the testimony of Mellen, that he did not on March 22, 1869, know the details of the transfer of stocks by defendant to Kinney. Courts interfere with verdicts upon this ground with great reluctance. If the surprise was owing to the least want of diligence, the applicant will be without sufficient excuse, and his motion will be denied.; and it has been held that a party moving for a new trial on the ground of surprise, must show that the contrary would be proved on another trial. Grah. & W. New Trials, S76, 963, 969.
Now, nearly a year elapsed between the first and second trials of the defendant, and the testimony of Mellen upon this point was substantially the same each time, so there could have been no surprise on this head at the second trial; and if the defendant was able to prove the contrary, it was his own fault that he did not do so at that time. Besides, it is difficult to perceive how the proof of Mellen’s knowledge of these details would aid the defense. It is the defendant who is supposed to have concealed the facts of the transaction, and not Mellen. Again, the details that Mellen said he was ignorant of, and which he tried to obtain from the defendant, were principally the cost of these shares and what property or consideration the defendant got for them from Kinney. Now, the affidavit of Clarke does not disclose that any of these details' were ever published in the Record; besides, there is no evidence that Mellen ever saw the Record, or read the paragraph.
The motion must be denied. In coming to this conclusion, I have not overlooked the fact that the defendant is a man of means and position in this community, and that he has been able to bring to his aid to assist him in his defense all that these advantages will command, including able and experienced counsel; that nearly a year elapsed between the first and second trial, which enabled the defendant to know and prepare to meet not only the accusation against him, but the particular testimony in support of it. It is not likely that any new fact that is material would be established on a third trial, or that another jury would come to a different conclusion from the last one upon the same testimony.
The district attorney then moved for judgment. The court pronounced sentence upon the defendant as follows:
Sentence of the defendant: “William K. Smith: You have been accused by the grand jury of this district of the crime of perjury, and after a fair and impartial trial, in which you had every 'facility to prepare your defense, and every assistance that could be rendered you by learned and able counsel, you have been found guilty by the trial jury. The question of your intention in taking what appears to have been a false oath, belonged to them to determine. Their verdict against you, although it is possible it may be incorrect, establishes your guilt before the law, and makes it the duty of this court to ascertain and impose upon you the punishment which your crime deserves ‘according to the aggravation of the offense.’ The act of congress declares that upon conviction of perjury, the person convicted shall ‘be punished by fine not exceeding $2,000, and by imprisonment and confinement at hard labor not exceeding five years, according to the aggravation of the offense.’ It will be seen in the matter of punishment that much is left to the discretion of the court; and this is so, because of the great difference in the circumstances and ultimate end under and for ■which perjury is and may be committed. The person who as a witness maliciously swears falsely, with the intention of convicting another of a capital offense, is the worst and most dangerous species of a murderer. Between this and the case of one who swears falsely to save or gain a few dollars in a legal controversy, so far at least as the welfare of society is concerned, there is a wide difference. Yours is a case, where so far as the court can know, the motive was to avoid the payment of $400 or $500 taxes to the national government. The lax state of morals in this and other American communities, which excuses, if not encourages, persons to
