Commonwealth v. Butland

Morton, J.

The motion to quash the indictment was rightly overruled. The statute provides that in every indictment f u *321 perjury, it shall be sufficient to set forth the substance of the offence charged upon the defendant in the criminal case in which the perjury is alleged to have been committed, and by what court or before whom the oath was taken or made, without setting forth the indictment or any part of any proceedings, and without setting forth the commission or authority of the court or person before whom the offence of perjury was committed. St. 1860, c. 186, § 1.

The principal reason for quashing this indictment, urged by the defendant, though stated in different forms, is in substance, that it does not sufficiently allege that the Municipal Court had jurisdiction of the case of Currier, in which the perjury was alleged to have been committed. It may be doubted whether such an allegation is necessary. Currier, having been committed for not finding sureties to recognize for him, had a right to be released on bail, whether the court had jurisdiction or not, and it might be perjury if the defendant swore falsely on the proceedings to procure his discharge.

But if such an allegation is necessary, we are of opinion that it is sufficiently made in this indictment. The first count alleges that Currier was lawfully before the court upon a complaint charging him with perjury, and that it was lawfully ordered that he recognize with sureties and be committed until he so recognize, which could not be true if the court had no jurisdiction of the case. This is sufficient within the spirit of the statute, the design of which was to avoid the necessity of setting forth in full the complaint or other proceedings of the court or magistrate before whom the case was pending. Commonwealth v. Hatfield, 107 Mass. 227 . Commonwealth v. Carel, 105 Mass. 582 . Commonwealth v. Hughes, 5 Allen, 499 .

The objection that the count contains “no allegation by or before whom the oath was administered to the defendant,” and no sufficient allegation of time and place, is unfounded. It alleges with certainty, so as not to be open to any other construction, that the defendant, at Boston, on the ninth day of April, 1875, made the written statement and took the oath alleged, before Edward J. Jones, a duly authorized and qualified commissioner.

*322 The objection that the commissioner had no authority to require or take the written statement under oath, is founded upon a misconstruction of the St. of 1862, c. 159. The design of that statute was to provide especial safeguards in the matter of admitting to bail persons who had been convicted in the Superior Court in the county of Suffolk, and, for that purpose, to require that the court or commissioner should, in such cases, take a written certificate under oath of the sureties ; but it does not deprive the commissioner of the power which he had, independently of the statute, to take a written statement in other cases where persons offer themselves as bail. It does not affect the case at bar.

The same considerations dispose of most of the objections to the second count. The only ground of objection specially applicable to that count, upon which the defendant relies, is that the recognizance of White was not in due form. The indictment, after reciting that said White was lawfully before the Municipal Court upon a complaint charging him with assault and battery upon a police officer, alleges that he was ordered to recognize to appear before the Superior Court “ to answer to said complaint, for the crime aforesaid.” The defendant contends that, as he would not be tried on this complaint in the Superior Court, he should have been ordered to recognize to answer to any indictment which might be found against him for the offence charged. The case of Commonwealth v. Slocum, 14 Gray, 395 , is decisive of this point. It was there held that a recognizance in this form was valid and sufficient, and bound the defendant to appear at the Superior Court and answer to any indictment which was substituted for the complaint.

We now proceed to consider the several exceptions alleged by the defendant in the course of the trial.

1. The defendant in his written statement swore that he owned real estate in Lynn of the cash value of not less than five thousand dollars, and also that he was worth in good property not lesa than four thousand dollars over and above all debts and liabilities.

The indictment alleges, in the second and twelfth assignments of perjury, that the real estate in Lynn was of trifling value, ta wit, ten dollars, and that the defendant was not- worth in good property four thousand dollars, nor any sum whatever over and above his liabilities.

*323 In regard to these two assignments, the defendant contended and asked the court to rule, that his statements as to the value of his land or his property were not material, and that he could not be convicted if such statements were false. The court instructed the jury that “ if the defendant stated under oath the value of his property to be much more than it really was, but made the statement in good faith, or ignorantly, it being his opinion as to its value, he would not be liable on account of his wrong statement; but if he, knowing its value was 'less than stated by him, intentionally misstated its value, in order that he might be accepted as bail, he would be liable to conviction for perjury if the other allegations are proved.” This instruction was accurate and carefully guarded.

The issue- before the commissioner was the sufficiency of the defendant as bail. The matter to be determined was whether he was worth enough to justify his approval as a surety. His statements as to the value of his property were material to this issue, and if they were wilfully and corruptly false, he would be liable to conviction for perjury.

2. The defendant asked the court to rule that there was a variance between the allegation and the proof in the second assignment. The allegation in the assignment is, that the real estate in Lynn was “ of trifling value, to wit, ten dollars and no more,” and there was some evidence tending to show that it was worth eighteen hundred dollars.

The court, upon this request, properly ruled that it was not necessary for the government to prove that the true value of the property did not exceed ten dollars, but it must prove “ that its value was not what was stated by the defendant, and that he, knowing its value was less than stated by him, intentionally misstated its value.”

The issue was whether the defendant wilfully swore falsely in his statement that the land was of the cash value of not less than five thousand dollars. The allegation is only material as an averment, that the land was not worth the amount stated, and it is substantially satisfied by proof that the land was of materially less value than that amount.

3. The defendant requested the court to rule that the evidence of the falsity of the defendant* s oath as to the value and amount *324 of his property and the amount of his debts, was not sufficient to justify a verdict of guilty upon these assignments, but the court declined so to rule.

It is not necessary that there should be two living witnesses in contradiction of the statement of the defendant to justify a conviction of perjury. It is sufficient if, in addition to one directly opposing witness, corroborating circumstances sufficient to turn the scale and overcome the oath of the defendant and the .egal presumption of his innocence are proved. Commonwealth v. Parker, 2 Cush. 212 . And where the defendant’s statement is contradicted by a witness, who is supported by corroborating circumstances, the evidence must ordinarily be submitted, under proper instructions, to the jury, whose province it is to judge of the weight of such corroborating circumstances.

In the case at bar the defendant’s statement that the land in Lynn was worth five thousand dollars, was directly contradicted by the witness Bunelly, and there were circumstances proved which tended to support Bunelly, and to contradict the defendant. The deed to the defendant states the consideration to be twenty-eight hundred dollars, which, if unexplained, affords some presumption that that was the price paid for it. The deed also shows that the quantity of the land was about twelve thousand square feet; the defendant, in his statement, says that he does not know on what street it was situated; the suspicious character of the statement, and the improbability that the owner would not know the street on which land of so great a value per square foot was situated, were circumstances tending to prove the defendant’s falsity. Further, if the defendant wilfully swore falsely as to other matters in the written statement, upon which the jury were to judge upon the evidence, this would tend to overcome his oath as to the particulars we are considering. We are of opinion that the court rightly submitted this question to the jury.

The same considerations dispose of the request to rule, that there was not sufficient evidence that the defendant did not own a grocery store and stock of goods in Gloucester. Upon this question there was the testimony of two witnesses that he had po such store, and in addition the admissions of the defendant to the same effect made to two other witnesses. The evidence wan rightly submitted to the jury.

*325 The court also rightly submitted to the jury the question, whether the defendant swore falsely as to the amount of his debts and property. The defendant swore on December 11,1874, that his debts did not exceed five hundred dollars, and that he was worth twenty thousand dollars over and above all debts and liabilities. The proceedings • in bankruptcy showed that in 1872 the defendant, in his schedules, admitted under oath that he was indebted in a very large amount, namely, eighty-five thousand dollars, and that there had been no dividend or discharge. These facts, unexplained and uncontrolled by "any evidence that the defendant had since then paid the debts or acquired any property, were proper for the consideration of the jury.

This disposes also of the request to rule, that the evidence was not sufficient to support the assignments in the second count, which charge that the defendant swore falsely as to the amount of his debts and property.

4. The defendant also contended that there was a variance between the allegation and the proof as to the store and property in Gloucester. The government’s evidence tended to show that the defendant had no store or property in Gloucester, in the State of Massachusetts. The statement of the defendant upon this point was proved to be, “ that I have personal estate in Gloucester, in the county of Essex; grocery store, cash value is not less than $1285, consisting of stock in grocery store.”

The ground which the defendant takes is, that there is no affirmation or assertion in his statement that he owned personal property or a grocery store in the State of Massachusetts, and he relies upon the case of Commonwealth v. Hughes, 5 Allen, 499 .

In that case the court say, “Whether any facts might have been proved, in the light of which the written statement of the defendant would have been interpreted so as to apply only to lands and houses in Massachusetts, need not now be considered, for no such facts were proved.” In the case at bar such facts were proved. There was sufficient evidence to justify the jury in finding that the defendant’s statement could apply, and was intended to apply only to Gloucester, in the State of Massachusetts. We are of opinion that this question was properly left to the jury, with the instruction stated in the bill of exceptions, *326 namely, “ If the other evidence in the case satisfies you that the defendant meant in his statement Gloucester, in the county of Essex and State of Massachusetts, you may then consider his written statement as applying to that town of Gloucester.”

5. The only other exception insisted on by the defendant is that to the admission of the testimony of Bunelly, that the defendant paid him nothing for the land in Lynn. The deed was made by Bunelly and his wife,, in her right, to the defendant. The fact that the defendant paid Bunelly nothing may be of little weight, but it was admissible as a part of the transaction.

We have considered all the exceptions of the defendant which he has relied upon in the hearing before us, and the result is that he has shown no reason for disturbing the verdict of the jury.

Exceptions overruled.