Opinion
No. 4604.
May 3, 1932.
Appeal from the District Court of the United States for the Eastern District of Illinois; Fred L. Wham, Judge.
James A. Ryan was convicted of subornation of perjury, and he appeals.
Affirmed.
Appellant was convicted of subornation of perjury in violation of section 232, title 18, of United States Code Annotated, section 126 of Criminal Code, and was sentenced to imprisonment for six months on each of the first and second counts in the indictment, the sentences to run concurrently, and fined $500 on each of the said two counts.
Omitting the formal parts and the jurisdictional facts, concerning which no question is raised, the first count charges that on January 11, 1929, in the matter of the bankruptcy of John H. Pearson, a hearing was held and conducted at Sullivan, Moultrie county, Ill., by Walter J. Grant as referee in bankruptcy of the District Court of the United States for the Eastern District of Illinois; that May V. Pearson was sworn and examined as a witness; that at said hearing it became and was material to the issues involved whether May V. Pearson had, within less than a year before the adjudication of John H. Pearson, her husband, as a bankrupt on August 1, 1928, received from her husband, without consideration, the approximate sum of $850; that on or about January 11, 1929, appellant and Joseph C. Hopewell did willfully, knowingly, and corruptly suborn, instigate, and procure May V. Pearson to willfully, knowingly, feloniously, and corruptly testify under oath at said hearing in bankruptcy, and she did then so testify, that she did not receive said sum of money from her husband without consideration within less than a year before his adjudication as a bankrupt, but that she had saved the sum over a period of several years from allowances in smaller amounts made to her by her husband; and that at the time of so suborning, instigating, and procuring her to give said testimony, and at the time she gave it, she, as well as appellant and Hopewell, knew that it was false, and appellant and Hopewell knew that she knew it was false, and that not any of them believed it to be true.
The second count contains substantially the same allegations as are contained in the first, but they relate to certain funds which May V. Pearson had deposited in Liberty Central Trust Company in St. Louis, Mo. A demurrer was filed to each count and it was overruled.
Substantial evidence was introduced in support of the following facts: Prior to July 1, 1928, bankrupt owned and conducted a clothing store at Sullivan, Ill., and for some time previous to that date had been having financial difficulties. In order to convert his stock of merchandise, or a part thereof, into cash he conducted a sale in his store during the early part of April, 1928, from which he realized approximately $5,000, and out of which sum he paid to his wife about $1,000. She retained that sum, or the greater part of it, for a short time, and on or about April 12, 1928, she, with the assistance of appellant, who accompanied her, deposited in her own name about $800 of the amount so given her by her husband with the Liberty Central Trust Company of St. Louis, for the purpose of concealing it from her husband's creditors. She did not give her true address to the bank, but instead gave the address of appellant as her own, as that bank was the one where appellant transacted his banking business.
Pearson's store was closed on or about July 1, 1928, and he was adjudicated a bankrupt on August 1, 1928. On January 11, 1929, a hearing for the purpose of examining the bankrupt and other witnesses for the benefit of bankrupt's creditors was held before Walter J. Grant, referee in bankruptcy, to whom the matter had been referred. At this hearing bankrupt and his wife were duly sworn and testified, and their testimony substantially supports in every particular the facts as above set forth.
Appellant and Hopewell were partners in the practice of law, and were attorneys for bankrupt and his wife until it became apparent that the interest of bankrupt was adverse to that of his wife, at which time they (the attorneys) retained the services of another attorney to represent Mrs. Pearson, although appellant continued to advise and counsel her as before.
Bankrupt and his wife told appellant prior to the hearing, and at or shortly after the time the deposit was made by Mrs. Pearson, that the money so deposited was given her by bankrupt out of the proceeds of the sale, and they frequently asked him what they should say if they were questioned regarding it, and each time he advised them, in substance, to say that it had been saved from weekly allowances and kept in the dresser drawer. Within two hours before the time when bankrupt and his wife testified at the hearing she, in the presence of her husband, asked appellant what she should say about the money if questioned on the stand, and he told her to say that it was not store money, but that she had saved it out of her allowances over a period of years and had kept it in the dresser drawer. The evidence shows that she and her husband so testified, and that their testimony was false. The allegations of the indictment are fully corroborated by the testimony of bankrupt and his wife.
M. Lester Geers, of Edwardsville, Ill., and A.B. Dennis, of Danville, Ill., for appellant.
Paul F. Jones, U.S. Atty., of Danville, Ill., and J. Fred Gilster, Asst. U.S. Atty., of East St. Louis, Ill., for the United States.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
Appellant relies upon the following alleged errors of the trial court: (1) In overruling the demurrer to the indictment; (2) in denying appellant's motion for a directed verdict at the close of the government's evidence, and also at the conclusion of all the evidence; (3) in overruling his motion for a new trial; (4) in overruling his motion in arrest of judgment; (5) in admitting in evidence, over his objection, Government Exhibits 9, 10, and 12; and (6) in admitting, over his objection, the testimony of F.A. Buchanan.
The indictment herein involves the statute relating to perjury, 18 USCA § 231 (Cr. Code § 125), as well as the one relating to subornation of perjury, 18 USCA § 232 (Cr. Code § 126).
18 USCA § 231. "Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, shall willfully and contrary to such oath state or subscribe any material matter which he does not believe to be true, is guilty of perjury, and shall be fined not more than $2,000 and imprisoned not more than five years."
18 USCA § 232. "Whoever shall procure another to commit any perjury is guilty of subornation of perjury, and punishable as in section 231 of this title prescribed."
With reference to the validity of the indictment, appellant contends that the subject-matter of the inquiry, concerning which Mrs. Pearson testified falsely, was not material to the issue then before the referee. The indictment alleged generally that it was material to the issue, and the remaining allegations in no way controvert the general allegation. This is sufficient. Berry v. United States (C.C.A.) 259 F. 203; United States v. Salen (D.C.) 216 F. 420; Baskin v. United States (C.C.A.) 209 F. 740; United States v. Nelson (D.C.) 199 F. 464; Ammerman v. United States (C.C.A.) 185 F. 1. Aside from the general allegation of materiality of the inquiry to the subject-matter in issue, we think the specific allegations of the indictment so obviously show the materiality of the inquiry as to render further discussion quite unnecessary.
It is next contended by appellant that the indictment is defective in not alleging that appellant knew that the witness would corruptly and willfully give the false testimony; and in support of this contention he cites United States v. Dennee, 25 Fed. Cas., page 817, No. 14,947, decided by the Circuit Court of Louisiana in 1877, and United States v. Evans, 19 F. 912, decided by the District Court in California in 1884. The Dennee Case seems so to hold, but, so far as we are able to ascertain, it has never been followed in any other federal court. The Evans Case, as we read it, does not support appellant's contention. It holds that to constitute the crime of procuring perjury to be committed, it is not enough that both the accused and the witness knew the falsity of the statements sworn to, but that the accused must also have known that the witness knew the statements to be false. The instant indictment is not defective in this particular. In Boren v. United States (C.C.A. Cal. 1906) 144 F. 801, 802, the court said that the essential elements of the crime of subornation of perjury are: "(1) that the testimony of the suborned witness must be false and known to be false by him, and the truth of the matter so falsely testified to must be set forth; (2) the suborner must know or believe that the testimony of the witness about to be given will be false, and he must know or intend that the witness is to give the testimony corruptly or with the knowledge or belief of its falsity." In none of these respects is the instant indictment at fault.
Appellant further contends that the witness cannot be held for perjury on account of any false testimony she may have given before the referee, and for that reason appellant cannot be held for subornation of perjury. This conclusion would be correct if the premise were sound, but that the premise is not sound is well settled. Hammer v. United States, 271 U.S. 620, 46 S. Ct. 603, 70 L. Ed. 1118; Cameron v. United States, 231 U.S. 710, 34 S. Ct. 244, 58 L. Ed. 448; Glickstein v. United States, 222 U.S. 139, 32 S. Ct. 71, 56 L. Ed. 128; Gordon v. United States (C.C.A.) 5 F.2d 943; Schonfeld v. United States (C.C.A.) 277 F. 934; Ulmer v. United States (C.C.A.) 219 F. 641; Baskin v. United States (C.C.A.) 209 F. 740; Epstein v. United States (C.C.A.) 196 F. 354; Daniels v. United States (C.C.A.) 196 F. 459; Hashagen v. United States (C.C.A.) 169 F. 396; Wechsler v. United States (C.C.A.) 158 F. 579; Troeder v. Lorsch (C.C.A.) 150 F. 710; Edelstein v. United States (C.C.A.) 149 F. 636, 9 L.R.A. (N.S.) 236. There was no error in overruling the demurrer to the indictment, or in overruling appellant's motion in arrest of judgment, or in failing to direct a verdict in favor of appellant.
The testimony of F.A. Buchanan was admitted for the purpose of impeaching appellant by his statements made at another time relative to the number of times that Mr. and Mrs. Pearson had been in appellant's office at St. Louis. There was no error in this ruling.
Appellant insists that Government Exhibits 9, 10, and 12 were erroneously admitted in evidence. These exhibits were letters. No. 10 was written to Mrs. Pearson by appellant on June 3, 1929; No. 12 was written to bankrupt on July 24, 1929, and was signed "Jim," which is appellant's first name; and No. 9 was written to bankrupt on March 3, 1930, and was signed "Jim and Joe," but it was probably written by Hopewell. On what theory these letters were offered or admitted we have not been informed, nor do we know, unless they were considered important in showing the relations existing between appellant and Hopewell and bankrupt and his wife; but even for this purpose they could only be considered as remotely material, if at all. The contents of these letters are largely laudatory of the writers. They contain nothing which bears on the guilt or innocence of appellant and cannot be considered as prejudicial. We think their admission in evidence was harmless.
The court's ruling on the motion for a new trial presents no question for our consideration. Judicial Code, § 269, 28 USCA § 391; Brown v. United States (C.C.A.) 9 F.2d 588. The evidence supporting the verdict is quite substantial and decidedly convincing.
Judgment affirmed.