1. False testimony before a referee in bankruptcy may constitute
the offense of perjury under § 125 of the Criminal Code, and also
that of knowingly making a false oath in a bankruptcy proceeding.
Bankruptcy Act, § 29b. P.
271 U. S.
625.
2. When the facts alleged as perjury in an indictment for
subornation include all the elements of perjury as well as false
swearing in bankruptcy, it is a charge of subornation of perjury.
Id.
3. On a trial for subornation of perjury, the falsity of the
testimony charged as perjury cannot be proved by the unsupported
testimony of the alleged subornee. P.
271 U. S.
626.
6 F.2d 786 reversed.
Certiorari to a judgment of the circuit court of appeals
affirming a sentence for subornation of perjury committed before a
referee in bankruptcy.
Page 271 U. S. 624
MR. JUSTICE BUTLER delivered the opinion of the Court.
Petitioner was indicted on three counts in the Southern District
of New York. A verdict of not guilty as to the first and third was
directed by the court. The jury found him guilty on the second, and
the court sentenced him to the penitentiary for a year and ten
months. The judgment was affirmed on appeal. 6 F.2d 786.
The second count sets forth that Annie Hammer was adjudged a
bankrupt on April 28, 1923, and that the proceeding was referred to
one of the referees in bankruptcy in that district. The substance
of the charge is that October 25, 1923, petitioner suborned and
induced Louis H. Trinz to take an oath before the referee, and
there falsely to testify that, prior to April 18, 1923, he had
loaned $500 to the bankrupt, and that she had given him a note
therefor.
Page 271 U. S. 625
The petitioner contends that the making of a false oath in
bankruptcy is not perjury, and that, without perjury, there cannot
be subornation of perjury. Section 125 of the Criminal Code
provides that whoever, having taken an oath before a competent
officer, in any case in which a law of the United States authorizes
an oath to be administered, that he will testify truly, shall state
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
for not more than five years. Section 29b of the Bankruptcy Act, c.
541, 30 Stat. 544, 554, provides that a person shall be punished by
imprisonment not to exceed two years upon conviction of the offense
of having knowingly made a false oath in any proceeding in
bankruptcy. Section 126 of the Criminal Code provides that whoever
shall procure another to commit any perjury is guilty of
subornation of perjury, and punishable as provided in § 125.
It is plain that the offense charged includes perjury as defined
by § 125. That section is in general terms, and is broad enough to
apply to persons sworn in bankruptcy proceedings. The facts alleged
include all the elements of that offense, as well as the making of
a false oath in bankruptcy, and they show a violation of both
sections. The indictment does not specify the section under which
it is drawn, but the omission is immaterial. The offense charged is
to be determined by the allegations.
Williams v. United
States, 168 U. S. 382,
168 U. S. 389.
And it follows that petitioner was accused of subornation of
perjury.
Cf. Wechsler v. United States, 158 F. 579;
Epstein v. United States, 196 F. 354;
Kahn v. United
States, 214 F. 54;
Ulmer v. United States, 219 F.
641;
Schonfeld v. United States, 277 F. 934. We need not
consider whether perjury committed in bankruptcy proceedings may be
punished by more than the maximum fixed by § 29b, as the sentence
imposed on the petitioner is less
Page 271 U. S. 626
than that. Nor need we consider whether every false oath in
bankruptcy is perjury under § 125.
Petitioner also contends that the evidence is not sufficient to
sustain the judgment.
At the trial of petitioner, it was satisfactorily shown that
Trinz was sworn in the bankruptcy proceeding, and there gave the
testimony alleged to have been false and suborned. Trinz was the
only witness called to prove the falsity and subornation. He
testified that he gave the testimony alleged in the indictment,
that it was not true, and that petitioner suborned him. At the
close of all the evidence, the petitioner moved the court to direct
a verdict in his favor on the ground that the uncorroborated
testimony of Trinz was not sufficient to warrant a finding of
guilt. The motion was denied, and, on the request of the
prosecution, the court charged the jury that the law did not
require any corroboration of that testimony and that, if believed,
it was sufficient.
The question of law presented is whether the unsupported oath of
Trinz at the trial of petitioner is sufficient to justify a finding
that the testimony given by him before the referee was false. The
general rule in prosecutions for perjury is that the uncorroborated
oath of one witness is not enough to establish the falsity of the
testimony of the accused set forth in the indictment as perjury.
The application of that rule in federal and state courts is well
nigh universal.
* The rule has
long prevailed, and no enactment in derogation of it has come to
our attention.
Page 271 U. S. 627
The absence of such legislation indicates that it is sound, and
has been found satisfactory in practice. On the issue of falsity,
the case presented is this: on the first occasion, Trinz testified
that he had loaned money to the bankrupt and that she had given him
a note. At the trial, he swore that his statement before the
referee was not true. The contest is between the two oaths, with
nothing to support either of them. The question is not the same as
that arising in a prosecution for perjury, where the defendant's
own acts, business transactions, documents, or correspondence are
brought forward to establish the falsity of his oath alleged as
perjury. That, in some cases, the falsity charged may be shown by
evidence other than the testimony of living witnesses is forcibly
shown by the opinion of this Court in
United
States v. Wood, 14 Pet. 430,
39 U. S. 443.
That case shows that the rule which forbids conviction on the
unsupported testimony of one witness as to falsity of the matter
alleged as perjury does not relate to the kind or amount of other
evidence required to establish that fact. Undoubtedly in some
cases, documents emanating from the accused and the attending
circumstances may constitute better evidence of such falsity than
any amount of oral testimony.
Page 271 U. S. 628
As petitioner cannot be guilty of subornation unless Trinz
committed perjury before the referee, the evidence must be
sufficient to establish beyond reasonable doubt the falsity of his
oath alleged as perjury. The question is not whether the
uncorroborated testimony of Trinz is enough to sustain a finding
that he was suborned by the petitioner. It is whether, as against
the petitioner, his testimony at the trial is enough to sustain a
finding that his oath before the referee was false. Clearly the
case is not as strong for the prosecution as where a witness,
presumed to be honest and by the government vouched for as worthy
of belief, is called to testify to the falsity of the oath of
defendant set forth as perjury in the indictment. Here, the sole
reliance of the government is the unsupported testimony of one for
whose character it cannot vouch -- a dishonest man guilty of
perjury on one occasion or the other. There is no reason why the
testimony of such a one should be permitted to have greater weight
than that of a witness not so discredited.
People v.
Evans, 40 N.Y. 1, 3.
To hold to the rule in perjury and to deny its application in
subornation cases would lead to unreasonable results. Section 332
of the Criminal Code abolishes the distinction between principals
and accessories, and makes them all principals. One who induces
another to commit perjury is guilty of subornation under § 126,
and, by force of § 332, is also guilty of perjury. In substance,
subornation is the same as perjury, and one accused of perjury and
another accused of subornation may be indicted and tried together.
Ruthenberg v. United States, 245 U.
S. 480;
Commonwealth v. Devine, 155 Mass. 224.
Obviously the same rule of evidence in respect of establishing the
falsity of the matter alleged as perjury must apply to both.
Evidence that is not sufficient to warrant a finding of that fact
as against the one accused of perjury cannot reasonably be held to
be enough as against the
Page 271 U. S. 629
other who is accused of suborning the perjury. No such
distinction can be maintained. The rule that the uncorroborated
testimony of one witness is not enough to establish falsity applies
in subornation, as well as in perjury cases.
People v. Evans,
supra. Falsity is as essential in one, as in the other. It is
the
corpus delicti in both.
The trial court should have directed the jury to return a
verdict of not guilty on the ground that the uncorroborated
testimony of Trinz at the trial was not sufficient as against
petitioner to establish the falsity of the oath alleged as perjury.
We need not consider whether his testimony was sufficient to
establish the fact of subornation.
Judgment reversed.
*
United States v.
Wood, 14 Pet. 430,
39 U. S. 437,
et seq.; United States v. Hall, 44 F. 864, 868;
Allen
v. United States, 194 F. 664, 667-668;
Peterson v.
State, 74 Ala. 34;
Clower v. State, 151 Ark. 359,
363;
People v. Follette, 240 P. 502, 511;
Thompson v.
People, 26 Colo. 496, 503;
State v. Campbell, 93
Conn. 3, 12;
Marvel v. State (Del.), 131 A. 317;
Cook
v. United States, 26 App.D.C. 427, 430;
Yarbrough v.
State, 79 Fla. 256, 264;
People v. Niles, 295 Ill.
525, 532;
Hann v. State, 185 Ind. 56, 60-61;
State v.
Raymond, 20 Iowa 582, 587;
State v. Wilhelm, 114 Kan.
349, 353;
Day v. Commonwealth, 195 Ky. 790, 793;
State
v. Jean, 42 La.Ann. 946, 949;
Newbit v. Statuck, 35
Me. 315, 318;
Commonwealth v. Butland, 119 Mass. 317, 324;
People v. Kennedy, 221 Mich. 1, 4;
State v.
Storey, 148 Minn. 398;
Johnson v. State, 122 Miss.
16;
State v. Hardiman, 277 Mo. 229, 233;
State v.
Gibbs, 10 Mont. 213, 219;
Gandy v. State, 27 Neb.
707, 734;
State v. Cerfoglio, 46 Nev. 332, 340;
People
v. Evans, 40 N.Y. 1, 5;
Territory v. Remuzon, 3 N.M.
368;
State v. Hawkins, 115 N.C. 712;
State v.
Courtright, 66 Ohio St. 35;
Wright v. State (Okla.),
236 P. 633, 636;
Williams v. Commonwealth, 91 Pa. 493,
501;
State v. Pratt, 21 S.D. 305, 311;
Godby v.
State, 88 Tex.Cr.R. 360;
State v. Sargood, 80 Vt.
415, 421;
Schwartz v. Commonwealth, 27 Grat. 1025;
State v. Rutledge, 37 Wash. 523, 527.
And see an
act to consolidate and simplify the law relating to perjury and
kindred offenses (1911) 1 & 2 Geo. V, c. 6, § 13.