Opinion
10-14-1910
STATE v. RASH.
Frank M. Jones and W. Watson Harrington, Deputies Atty. Gen., for the State. Walter H. Hayes, for defendant.
John H. Rash was tried on an indictment for perjury. Jury disagreed.
Argued before WOOLLEY and HASTINGS, JJ.
Frank M. Jones and W. Watson Harrington, Deputies Atty. Gen., for the State.
Walter H. Hayes, for defendant.
Indictment for perjury. The state offered evidence tending to prove that the defendant on the 11th day of November, A. D. 1908, at Laurel, made statements under oath to the then Deputy Attorney General, charging one Howard Wbaley, with attempting by the use of money, on the 3d day of November. 1903, to influence the vote of the said defendant at the general election then and there held.
At the trial the state called to prove the above, the following witnesses, viz., Charles Sudler Richards, the then Deputy Attorney General, and William F. Kurtz and George W. Dorsey; the former being present assisting the Deputy Attorney General, and the latter being a public stenographer, who took the statements of the said Rash and reduced the same to typewriting.
Mr. Richards was asked: "What did John H. Rash say to you on that occasion about Howard Whaley having offered him money for his vote at the general election A. D. 1908?"
This was objected to by Mr. Hayes, counsel for defendant, on the ground that any statement made by Rash to the then Deputy Attorney General, who at the time was investigating a charge of bribery against the said Howard Whaley, was an absolutely privileged communication, and cited State v. Brown et al., 2 Marvel, 380, 30 Atl. 458.
The objection was overruled and the defendant excepted, asking that his objection and exception be extended also to similar testimony offered in the ease by any one present at the hearing in Laurel, which was granted.
The state also offered further testimony to the effect that at the October term, 1909, of the Court of General Sessions, for Sussex county, upon the trial of an information filed by the Attorney General against the said Howard Whaley, at the February term, 1909, charging him with offering the said Rash money for his vote on the said 3d day of November, 1908
The defendant, being produced as a witness at said trial, denied having made the statements alleged before the Deputy Attorney General, at Laurel, upon which said original statements the information against Wbaley was based.
A public stenographer testified at the trial that he took down in shorthand notes, and correctly transcribed, the testimony of the said defendant before the Deputy Attorney General, at Laurel, and produced the said transcript, stating that, while he remembered the testimony of the defendant generally, yet he could not give it verbatim from memory. The witness was then permitted to read the testimony referred to from his typewritten transcript, against the objection of counsel for the defendant that he could only use such transcript to refresh his memory, and must then testify from his memory so refreshed.
The official court stenographer was produced as a witness for the state, and after testifying as to his official position and that he took down in shorthand notes the testimony of the said defendant Rash, at the trial of the information against Howard Whaley, at the October term, 1909, produced a transcript of said testimony, which he testified was a true and correct transcript of the same. The witness was then asked by the Deputy Attorney General to read certain statements made by the defendant at said trial concerning Howard Whaley's offering him money for his vote on November 3, 1908.
Hayes, for defendant, objected, contending that the transcript of the official court stenographer was a record of the court, and was the best evidence of its contents. The objection was overruled, and the witness read from the transcript as requested. Both the transcript of the public stenographer, taken at the hearing before the Deputy Attorney General, at Laurel, and the transcript of the official court stenographer, of the evidence taken at the trial of the information, were subsequently admitted in evidence.
HASTINGS, J. (charging the jury). Gentlemen of the jury: John H. Rash, the defendant, is charged in this indictment with the crime of perjury. By the statutes of this state it is provided that "if any person shall commit the crime of perjury * * * such person shall be deemed guilty of felony," etc. The statute does not provide what constitutes perjury and we must therefore define it as it was known at common law, as follows:
When a lawful oath is administered in some judicial proceeding or due course of justice, to a person who swears willfully, absolutely and falsely, in a matter material to the issue or point in question.
In this indictment there are five separate and distinct counts. It is not necessary, however, for the state to prove to you the facts alleged in each of said five counts; if it should satisfy you, beyond a reasonable doubt, of the guilt of the defendant upon any oneof said counts, that would be sufficient to warrant a verdict of guilty.
It is contended by the state that the defendant on the 11th day of November, A. D. 1905, at Laurel, this county, made certain statements to Charles S. Richards, who was at that time a Deputy Attorney General of this state, which statements in effect charged one Howard Whaley with attempting by the use of money on the 3d day of November, 1908, to influence the vote of the said John H. Rash. The state further contends that at the February term of this court, A. D. 1909, an information was filed by the Attorney General of this state against the said Howard Whaley, charging him with the offense of paying to the said John H. Rash $10 for his vote, on the said 3d day of November, 1908; that on October 11, A. D. 1900, the said charge against the said Howard Whaley came on to be heard in this court, and on the same day this defendant, John H. Rash, was produced, sworn, and testified at said trial; that the defendant while so testifying was asked by the Attorney General whether he did not make certain statements mentioned in the indictment in this case to the Deputy Attorney General, Mr. Richards, at Laurel, on November 11, 1908, which the state contends he at that trial denied. The defendant on the other hand contends (1) that if he made such false statements it was due to an imperfect recollection, and such statements were not intended to deceive; and (2) that any denials made at the time are so interwoven and mingled with other statements that they do not constitute a willful and absolute false statement.
To constitute this offense the state must prove to you certain essential facts:
(1) That the oath administered was in a judicial proceeding.
(2) That the witness testified falsely.
(3) That his testimony was willfully and absolutely false.
(4) That the matter to which the witness testified was material to the issue.
The record of the case of the State of Delaware v. Howard Whaley is in evidence before you. The issue in that case was whether the said Howard Whaley paid the said John H. Rash $10 to vote, and the false statement which it is alleged the defendant made did not prove or tend to prove that fact. The evidence of this defendant, however, in the Whaley trial, by which be is alleged to have falsely denied that to which he testified before the Deputy Attorney General, was material to the issues in the Whaley trial in so far as such false denial affected the credibility of the defendant as a witness. If therefore you find that the defendant made such an absolute and false denial, then the denial was material to the trial of the Whaley Case in that it affected his credibility as a witness. State v. Shaffuer, 6 Pennewill, 576, 69 Atl. 1004.
If you should find the defendant did make the false statements as alleged in the indictment, you should next inquire as to the intent of the defendant; that is, whether such false statements were made by him willfully, absolutely, and corruptly. And we say to you that in determining that fact you should take into consideration all of the statements made by the defendant when testifying in the Wbaley case, those that admit the statements alleged as well as those that deny them.
Now, gentlemen of the jury, the facts in this case must be determined by you; the province of the court is to instruct you with reference to the law and leave the facts entirely for your consideration and determination.
If after a careful consideration of this case you are satisfied beyond a reasonable doubt that on November 11, 1908, the defendant made the statements alleged in any one of the counts in this indictment before the Deputy Attorney General at Laurel, and that on the 11th day of October, 1909, after being duly sworn in the case of State v. Whaley, he denied making those statements, and that at the time he so denied making them he knew he was testifying falsely, and that such false testimony was given by him willfully, fraudulently and corruptly, you should render a verdict of guilty; otherwise your verdict should be not guilty.
The law presumes that every one accused of a crime is innocent until proven guilty, beyond a reasonable doubt. By a reasonable doubt is meant, not a vague, fanciful or indefinable doubt, but such a doubt as reasoning men would have under all the circumstances of the case.
When the jury entertains a reasonable doubt of the guilt of the accused in respect to any essential ingredient of the crime, that doubt inures to the benefit of the accused, as the burden of proving the prisoner guilty beyond such a reasonable doubt rests upon the state.
The jury disagreed.