Dodge v. State

The Chief Justice.

The plaintiff in error having been convicted, and sentenced for the crime of perjury, seeks to reverse the judgment, on account of various errors in the record. They will be considered in the order in which they were presented to the court.

1. It is not necessary to allege in the indictment, in what particular form the defendant was sworn to testify — whether upon the evangelists or otherwise. It is enough to state that he was duly sworn. It is clearly averred that he was sworn to testify the whole truth. The indictment conforms In this respect to approved precedents. 2 Chitty’s Crim. Law, 161; 2 Russell on Cr. (4th Ed.) 540.

2. The authorities are clear, that the chai'ges of the indictment must be positive, and not in the alternative or disjunctive. The rule, however, has no application to the statement of the question, the materiality of which forms the subject matter of complaint. That must be stated according to the truth, and very frequently is in the alternative. The question may be, whether the act was done by A and B, or by either of them — whether an injury was inflicted by a fall, or by a blow with a sword, or a knife, or a hatchet, held by A or by B, with design or by accident. In very many cases, the materiality of the question can only be truly averred by stating it in the alternative. In 2 Chitty’s Crim. Law, (Ed. of 1818) 187, in an indictment for perjury, the material question upon which perjury is assigned, is stated to have been, “ whether the said J.H., J. S., J.C.and T. L., or either of them had struck the said Mrs. J., or had dragged her by the hair of her head.”

3. Proof that the defendant has made statements verbally or in writing, under oath, or not under oath, conflicting with the statement under oath upon which the indictment is founded, is competent evidence on an indictment for perjury, and such evidence, in connection with the testimony of one other witness, has been held sufficient to warrant a conviction. Rex v Mayhew, 6 Car. & P. 315; Roscoe on Crim. *462 Ev. 686; State v. Molier, 1 Dev. 213 ; Wharton's Cr. Law, (2d Ed.) 307.

4. The material inquiry on the trial upon which the defendant gave his evidence, was whether a certain horse was-exposed to the weather in the month of February or March, 1851. He testified that the horse was not exposed to the weather either in February, March or April. The truth is1 alleged to have been that he was exposed to the weather in March and April. To warrant a conviction, therefore, it was necessary to show that the defendant swore falsely in regard to the exposure of the horse in the month of March. But it was neither incompetent nor irrelevant to show that, the horse was also exposed in the month of April. The defendant had sworn that he was not exposed to the weather-in' either of those months. It was competent, therefore, to-show that the evidence was untrue, as applied to the whole-period covered by his testimony, not to establish perjury in regard to any other time than the month of March, but-to exclude the idea of error arising from mistake in point of' time, and as tending to show that the evidence was not only-false, but knowingly and corruptly false.

5. The court properly refused to charge that there was; but one assignment of perjury contained in the indictment, and that all the statements charged to have been made by the defendant, must be proved, in order to warrant a conviction. The indictment contains a variety of statements, or,, more strictly, one material averment in a variety of forms,, and if either statement or form of statement was proved to have been false in a material point, it was sufficient to warrant a conviction. 2 Bla. R. 790; 2 Ld. Ray. 886; Russell on Cr. 549. The several statements alleged to be false, do not constitute one continuous or entire charge, as in King v. Leefe, 2 Camp. 134.

6. It was rightly held, that it must be presumed that the Court of Oyer and Terminer, before whom the defendant is-alleged to have been sworn, had power and authority to administer the oath. It is material to observe that the ob *463 jeetion is not that there was no proof that the special term of the Over and Terminer had been appointed by competent authoi’ities or constituted in a legal manner; or that the particular indictment on the trial of which the perjury is alleged to have been committed, was not properly included within the order for the special term. The court was not called upon to express any opinion upon that point. The presumption is, that that fact was either admitted upon the trial, or fully proved. It is true that the proof does not appear upon the bill of exceptions. But it is neither necessary nor proper to set forth all the evidence in a bill of exceptions. Had the objection been made in that form, the evidence, if in reality defective, might have been supplied. Assuming, as we must do here, that the special term of the Oyer and Terminer had been appointed by competent authority, and constituted in due form for the trial of the indictment, it is rightly presumed that they had power and authority to administer the usual oath to a witness on the trial of an indictment, of which by law they had jurisdiction. The Court of Oyer and Terminer, at a special term, are invested with all the power and authority for the trial of indictments then designated for trial, that they possess at a regular term. Pamph. Laws 1853, chap. 117.

7. That the jury are bound to take into consideration the whole evidence given by the prisoner at the time of the alleged peijury, in connection with all its qualifications, explanations and modifications, so far as they appear in evidence before the jury, is too clear to admit of question. But the court were called upon to charge, “ that all the evidence given by the prisoner on the trial must be taken together; that what he said in one part of his examination could not be separated from explanations in another part, but that the truth or falsity of the evidence given by the prisoner is to be determined by taking the whole together." If the court had so charged, the prisoner must necessarily have been acquitted, although the perjury was distinctly proved, unless the witnesses had testified that they remembered the whole *464 of the prisoner’s testimony inall its material and immaterial parts. The examination of the prisoner, as a witness, may have' been very protracted; the evidence in regard to the point upon which the perjury was assigned, may have been very brief. The testimony of the witnesses upon that point may have been clear and distinct, yet it may not have included one-tenth of all that the prisoner testified, and it surely afforded no ground of acquittal that the witnesses did not recollect all that the prisoner testified while under examination, if the falsehood of his testimony in regard to the point upon which the perjury was assigned was olear and unequivocal. If anything material was omitted by the evidence-on the part of the State, it was incumbent on the defendant to prove it. 3 Greenl. Ev. § 193; Rex v. Rowley, Ryan and Moody, 249.

8. It is not necessary except in a capital case, that the court should, before passing sentence, demand of the defendant why judgment should not be pronounced against him.,-. West. v. State, 2 Zab. 229.

9. Under the statute of 5 Eliz. chap. 9, and of 2d and 18th Geo. 2, the practice has been to make the disability of the defendant to give testimony, a part of the sentence. Co. Ent. 368-9; Rex v. Greepe, Salk. 513; Rex v. Crosby, Ibid 689; Rex v. Ford, Ibid 691. Whether the same construction should bo adopted of our statute, whose phraseology is not materially dissimilar, does not appear to have been settled. The point was raised and elaborately argued by the defendant’s counsel in Berrien v. State, 2 Zab. 24, but no opinion was expressed in regard to it, either by this court or the Court of Errors, the case being decided upon other grounds.

But admitting the clause of disability to consti tute properly a part of the sentence, does its omission constitute any ground of reversal at the instance of the defendant? If the, sentence, so far as it goes, is lawful, can the defendant complain that he, was not punished as much as he ought to have been ? Undoubtedly, if the judgment vary in the penalty actually inflicted, from that authorized by statute, it *465 will afford ground of error, because the sentence is not authorized by the statute; but if two penalties are inflicted by the statute, and one is omitted in the sentence, there seems neither principle nor authority to warrant the reversal of the judgment.

In Kane v. People, 8 Wend. 203 , the Chancellor, delivering an opinion in the Court of Errors, said, “ Where a party is subject to two distinct and independent punishments for the same offence, if one of them is inflicted upon him by the sentence of the court, he cannot object that the court has not gone further, and inflicted the other penalty also.

In The State v. Price, 6 Hals. 2l8, this court held that it could on no principle be made a ground of reversal, at the instance of the defendant, that the court omitted to award costs against him. Accord. McQuoid v. the People, 3 Gilman, 76 .

The 10th and 11th grounds of exception are, that by the judgment the defendant is sentenced to solitary confinement in the State Prison, and to stand committed until the costs ojprosecution are paid, there being, it is said, no warrant for such sentence. The law prescribes that every convict sentenced to the State Prison shall be confined in one of the cells of the prison separate and alone. (Rev. Stat. 311, art. VI.) It further prescribes that he shall be safely kept in prison until the term of his confinement shall have expired, and the fine and costs of prosecution be paid or re~ mittcd. The sentence, therefore, is in both respects in conformity with the provision of the law. The penalties inflicted upon the prisoner are in no wise varied by the peculiar phraseology of the sentence. But it is said that the statute prescribes that every person convicted of perjury shall be punished by fine or by imprisonment at hard labor, or both, at the discretion of the court; that this is the peculiar punishment inflicted for the offence, and that the court can add nothing to the sentence. The objection rests upon.the simple ground that the mode of enforcing obedience to the sentence, or the method of inflicting the punishment, can legally constitute no part of the judgment. It is, cei> *466 tainly in ordinary cases, not a necessary part of the judgment. The omission is not fatal to the validity of the judgment, nor, tin the other hand, is its introduction into the sentence, a ground of error. On the contrary, in many cases it is essential. Thus, in a sentence of imprisonment for a longer term than six months, it is necessary to specify whether the imprisonment shall be in the State Prison or in the county jail. When the term of imprisonment is less than six months, though usual, it is not necessary to specify the place of imprisonment, because of necessity it must be in the county jail. At common law, the sentence never specified the place of imprisonment.

By our law, every person convicted of crime is liable to the payment of the costs of prosecution. It constitutes, in fact, a part of the punishment. In regard to the mode of enforcing payment, the costs are placed upon the same footing with the fine. The prisoner is to be continued in confinement till the fine and costs are paid; directing that the prisoner shall stand committed till the fine, or till the fine and costs are paid, is not adding to the legal punishment, but simply a mode of enforcing obedience to the sentence of the law. The usual form of the common law judgment is, that the prisoner stand committed till the fine is paid. Case of John Wilkes, 19 Howell’s St. Trials, 1124, 1136; S. C. 4 Bur. 2574 ; Ld. George Gordon’s case, 22 Howell’s St. Trials, 235 King v. Waddington, 1 East. 166, 172.

But this, though usual, is not a necessary part of the sentence. If the money is paid, it may be omitted, and a precedent of that character, stating the fact that the fine was paid in open court, will be found in Crown Circ. Comp. 81.

So, if a prisoner is absent when sentence is pronounced, a fine may be imposed, but he cannot regularly be ordered to bé committed to custody, for the sentence cannot be enforced. A capias pro fine most in such case be awarded. Duke’s case, Salk. 400; The Queen v. Templeman, Salk. 55; Com. Dig. “ Indictment” JV. And such, it is apprehended,-is the 'regular practice under our law. The capias pro fine is *467 abolished in civil cases only, not in criminal. Rev. Stat. 452, § 14, 18.

The statute, in certain cases, where the defendant has property, authorizes a proceeding by scire facias, to recover tbe fines and costs, but it does not interfere with the common law remedies. Rev. Stat. 454, § 5.

The order that the defendant stand committed till the fine and costs are paid, does not, as has been said, add anything to the punishment inflicted by law, or in any wise affect the rights of the defendant; and if it were otherwise, if in fact in addition to the legal imprisonment, the judgment had imposed a penalty not authorized by law, it does not follow that the whole judgment would be illegal. The part not authorized by law, would, it seems, be held void, and the prisoner discharged at the expiration of his legal sentence. Rex v. Collier, 1 Wilson, 332 .

The order that the prisoner shall be imprisoned in solitary confinement, is a departure from the established form of sentence, and unnecessary, but inasmuch as it does not vary the mode of punishment inflicted, it is merely superfluous, and does not invalidate the judgment. The order that the defendant stand committed till the fine and costs are paid, is in strict conformity to sound principle, and to established practice.

Potts, J., concurred; Elmer, J., dissented.

Judgment affirmed.