State v. Raymond

¶1l. indict?ury?er' 2tiN”and "gathering,” I. So much of the charging part of the indictment as is necessary to the understanding and disposition of the points made thereon by the appellant’s counsel, is as follows: “ That the said Joseph Raymond, upon his said oath, stated, among 0ther things, in substance and effect, the following, that is to say, that on the night of the 21st day of September, 1864, he, the said Joseph Raymond, saw the said Peter Martin enter upon the premises of the said Jason Pangborn, and heard and saw the said Peter Martin getting and carrying away from the premises of the said Jason Pangborn the corn of the said Jason Pangborn, at the time last aforesaid; whereas, in truth and in fact, the said Joseph Raymond did not see the said Peter Martin enter upon the premises of the said Joseph Pangborn on the night of the 21st day of September, 1864; and whereas, in truth and in fact, the said Joseph Raymond did not see and hear the said Peter Martin gather and carry away from the premises of the said Jason Pangborn the corn,” &c. …

¶2It is objected, on motion in arrest of judgment, that the portion of the oath upon which the perjury is assigned, to wit, that he “saw the said Peter Martin enter upon the premises of the said Jason Pangborn,” is not negatived by the averment that he “ did not see Peter Martin enter upon the premises of the said Joseph Pangborn,” and that the oath that he “heard and saw the said Peter Martin getting and carrying away ” is not negatived by the averment that he did not see and hear the said Peter Martin gather and carry away.

¶3These objections are not well taken. It is evident from the whole indictment, as well as from the immediate context, that the name “Joseph,” instead of “Jason,” is a clerical error. That this is a mere * clerical error is so apparent that it is not possible for a person of “common *585understanding ” to be misled by it, The State of Iowa v. Thompson, 19 Iowa, 298.

¶4Since it could not affect tbe substantial rights of the party, it is not a sufficient ground for reversal. Eevision, § 4925.

¶5The use of the word “gather,” to negative “getting” corn, is not sufficient cause for arrest of judgment under our Code. The “ substance and effect ” of the former, in the connection used, is equivalent to the latter. It is doubtful whether such an objection would have been available even under the technical nicety of the common law. See "Whart. Am. Or. Law, §§ 405, 406, 407, 488 and 606, and authorities cited.

¶63._ knowledge. So far as relates to the objection in the motion for arrest, that the indictment does not charge that the prisoner knew the falsity of the matter testified to by him, it is on2y necessary †0 say that such an averment is not requisite except in cases where the assignment of perjury is upon the statement by the accused of his belief or denial of his belief of the alleged false matter. Whart. Am. Or. Law, 5th ed., § 2261.

¶73. cmkinperjitty." II. The court gave to the jury very full ánd elaborate instructions. As a whole, they are quite as favorable to the prisoner as he had any right to ask; and in some particulars the instructions were more favorable than the law, as found in the books, would require.

¶8Peter Martin was on trial for the larceny of corn, at the time the prisoner is alleged to have committed the perjury charged.

¶9On the trial of the prisoner Peter Martin was called as a witness for the State, and contradicted the alleged false matter sworn to by the prisoner upon which the perj ury is assigned. The only corroborative evidence to that of Martin was the testimony of two witnesses, that they had *586together examined that portion of the corn field where the prisoner had sworn he saw and heard Martin gather corn; that their examination was made the second day after the .alleged larceny, and they saw no tracks, or corn missing in that part of the field, although the ground was soft and their tracks very apparent.

¶10And the further testimony of Martin’s wife, that she and her husband went to bed before the time at which the prisoner swore he saw Martin get the corn, and that, although she slept soundly, she knows her husband did not go out that night, because no one could either go out or come in without her knowing it. The sufficiency of this corroborating evidence as well as the instructions in relation to it constitute one of the main grounds upon which defendant’s counsel relies for a reversal.

¶11The court, inter alia, instructed the jury, that “ to support an indictment for perjury, the State must prove, 1st, the authority to administer the oath; 2d, the occasion of administering it; 3d, the taking of the oath by the defendant ; 4th, the substance of the oath; 5th, the materiality of the matter sworn to; 6th, the introductory averments of the indictment; 7th, the falsity of the matter sworn to; 8th, the corrupt intention of the defendant; and unless each and every one of these necessary elements of the crime of perjury is established to your satisfaction, and beyond any reasonable doubt, the defendant cannot be convicted.” It might, perhaps, be questionable whether the “ reasonable doubt ” should not arise upon the whole case instead of any one element or more of the crime; but this, of course, was not error to the defendant’s prejudice, if it was error at all, which is a question we do not decide.

¶12The court also instructed the jury that “ the matter testified to must be established by evidence greater than that of one witness. Two witnesses, or one witness and strong corroborative proof, are required to establish the falsity of *587the matter, alleged to have been sworn to by tbe defend- f ant on the trial before tbe justice of tbe peace: and the / corroborative evidence must be of such a character as to show in some degree the falsity of the matter sworn to by defendant, or to convince tbe jury that such matter was false. But it is only in proof of tbe falsity of what was testified to' that more evidence than of a single unsupported witness is required.” …

¶13Tbe italicised portion of this instruction is that upon wbicb tbe defendant bases bis objection. Tbe old rule •' was, that two witnesses were required to prove tbe falsity1, of tbe matter upon wbicb tbe perjury was assigned. This-, rule, however, has long since been repudiated, and tbe ; testimony of one witness and strong corroborative circumstances have been held sufficient. But evidence confirmatory of that one witness, in some slight particulars only, is not sufficient to warrant a conviction. Rex v. Yates, 1 Car. & Mars., 132.

¶14It must be at least strongly corroborative of the testimony of tbe accusing witness. Woodbeck v. Keller, 6 Cow., 118. And tbe corroboration must be by independent circumstances, tending to show tbe same results and not merely that tbe account is probable. 1 Greenl. on Ev., §§ 257 to 259, and authorities cited in notes; 2 Whart. Am. Cr. Law, §§ 2275 to 2280, and authorities cited in notes; 2 Buss, on Or., 544, 545.

¶15There is possibly a doubt as to tbe meaning of tbe language, objected to, in the instruction. If tbe court intended by it to instruct tbe jury that any corroborative evidence which should show in some degree tbe falsity of tbe matter sworn to, would be sufficient to authorize them to convict, tbe instruction was clearly erroneous. But if, by it, was meant (wbicb is more probable), that tbe corroborative evidence must show in some degree tbe falsity of the matter sworn to, as distinguished from evidence *588corroborating the witness as to other matters stated by him, it was not necessarily erroneous.

¶16That this latter construction is not only the more reasonable, from the language itself, but the one evidently intended by the court and understood by the jury, is apparent from a following instruction, to wit: “ The jury will consider the character of the alleged corroborating facts and circumstances in the case, and unless- they are such as could not exist consistently with the innocence of the defendant, the defendant must be acquitted.

¶17Upon the instructions as a whole, given by the court, there was not error to the prejudice of the defendant.

¶18III. The defendant’s counsel asked the court to give to the jury several instructions which were refused. There was no error in refusing the first instruction, for aside from the incorrect statement of the matter alleged as perjury, that defendant. “ saw Peter Martin steal and carry away corn,” instead of “ getting and carrying away corn,” it had been, in substance, already given by the court.

¶19*•.— . coSltaea. As to the second, that the jury could not consider any other perjury than that assigned, while it is true that they could not consider it for the purpose of determining his guilt upon such other perjury, yet, since the evidence in this case of such other perjury was legitimately brought out before the jury in the development of the whole case, and related to the same oath and subject matter of the perjury charged, they might properly consider it in determining the question of corrupt intent in swearing to the false matter upon which the perjury was assigned. The third instruction was properly refused, because, if the facts proved were as therein stated, it would not necessarily make the matter upon which the perjury was assigned, immaterial.

¶20The fourth, as to the corroborative evidence, was given in substance by the court, except as to the statement of *589stealing, which was in itself incorrect. The fifth instruction asked, was to the effect that the testimony of Martin’s wife did not corroborate him as to his not being out of the house, or in Jason Pangborn’s field that particular night.

¶21It was properly refused, for although her testimony could not be regarded as strongly corroborative, yet it did tend to a greater or less degree, to be judged of by the jury, to his corroboration. The sixth, seventh and eighth were either given in terms or in substance. The ninth instruction in regard to emblements not being the subject of larceny, embraced to that extent, a very correct legal proposition. But the conclusion of immateriality sought to be drawn therefrom, so far as this case is concerned; was clearly erroneous.

¶22We have thus briefly reviewed the alleged errors, seriatim, except the one as to the sufficiency of the evidence; and as to this we can only say that the transcript presents such a state of case as renders the verdict of the jury conclusive upon us.

¶23Affirmed.