State v. McGee

¶1(concurring) :

¶2I concur but make this comment:

¶3I fail to’ see any logic or relevancy to the issue here involved in the final clause of the statement quoted from 56 A.L.R. p. 412, to the effect that the subornee is not an accomplice of the suborner, and that consequently, “testimony as to such matters by the person suborned [subornee] is not necessary to sustain the conviction. A reading of the text material and the authorities referred to, including the case of State v. Gleason, 86 Utah 26, 40 P.2d 222, reveals that what does have relevancy here is the fact that inasmuch as the subornee is not an accomplice to the subornation, it is not necessary that there be corroboration of .his testimony as to the subornation aspect of the case.

¶4(concurring in the result) :

¶5I concur in the result, and desire to give my reasons for doing so.

¶6The appellant, McGee, in a prior trial, was convicted of grand larceny in that he stole a pistol of a value in excess of $50., He called a 16-year-old lad to testify, and. while under oath the witness testified that he himself had stolen the pistol and that McGee did not do it.

¶7The instant action charges McGee with subornation of perjury in the first degree. He was convicted and appeals, claiming that he cannot be convicted of subornation of perjury for the reason that one element of the crime, to wit: perjury, was based solely upon the uncorroborated testimony of the 16-year-old boy.

¶8Prior to the 1935 Session Laws of Utah, our statute 1 required two witnesses or one *376witness plus corroborating- circumstances before the crime of perjury could be made out. That provision of the statute was repealed by Chapter 118, L.U.1935, so that now there is no statutory requirement for an extra witness or for corroborating circumstances in order to convict one of perjury.

¶9The crime of subornation of perjury has two elements: (1) Perjury on the part of a witness and (2) an inducement by the defendant causing the witness to testify falsely.2

¶10As to the element of perjury, the defendant and the witness are accomplices,3 and the defendant cannot be convicted on the uncorroborated testimony of the accomplice.4 However, since it is not possible for a person to suborn himself, a false witness cannot be an accomplice with his suborner. The element of suborning can thus be proved by the uncorroborated testimony of the false witness. State v. Gleason 5 is a case in point. At page 34 of 86 Utah, at page 226 of 40 P.2d this court said

The doctrine announced by.nearly all .state and federal courts, where decisions have been rendered,- is, in cases of subornation, that the suborned and the sub-orner are accomplices as to the perjury, and as to that two witnesses are required, or one witness and corroborating circumstances, but as to other elements of the crime such as inducing or procuring the perjury to be committed they are not accomplices, and testimony as to such matters by a person alleged to have been suborned need not be corroborated to sustain a conviction. [Citations omitted.]

¶11This holding is in line with the majority decisions. The statement in 41 Am.Jur., Perjury § 78, is as follows:

… The majority of the courts applying the two-witness rule in a prosecution for subornation of perjury recognize that such application is proper only as to proof of the perjury, and that the rule does not apply to show that the perjury was procured or induced by the defendant. …

¶12See also the text in 70 C.J.S. Perjury § 88.

¶13The juvenile witness testified in the - instant matter and admitted giving false testimony at the grand larceny trial. He also testified that McGee suggested to him that *377be lie in order that McGee not go to prison.

¶14Let us examine the record to see if the testimony regarding the falsity of the prior testimony is corroborated by other evidence in this case.

¶15The manager of the store from which the pistol was stolen testified in substance as follows: His office is by the door to a storeroom where he kept merchandise, including the pistol in question. His attention was directed to the noise and movement of two swinging doors at the entrance to the storeroom. He saw the defendant emerging therefrom and accosted him and saw the pistol hidden on his person. Nobody else had entered the storeroom near that time. The defendant admitted taking the pistol and said he would help recover other guns stolen therefrom if the manager would not call the police. A police officer investigating the theft of other guns talked to McGee and testified that McGee wanted to make a deal about the prior thefts, and after being advised of his constitutional rights admitted to the officer that he had taken the pistol in question.

¶16It thus appears that the testimony of the juvenile witness as to the falsity of the pri- or testimony was amply corroborated in the trial of the instant matter. I, therefore, concur in affirming the judgment below.