1. An indictment charging the defendant with having falsely
testified under oath before a federal grand jury -- in answer to a
question material to the investigation, and knowing the answer to
be false -- that he did not make certain statements to Government
agents concerning earlier conversations with others regarding the
operation of places of ill repute sufficiently charges perjury in
violation of § 125 of the Criminal Code. Pp. 311 U. S. 293
311 U. S. 295
2. The alleged perjury consists not in the accused's having
contradicted before the grand jury earlier statements made by him
in conversation with others, but in his having sworn falsely that
he had never told Government agents he had made such statements. P.
311 U. S.
Appeal under the Criminal Appeals Act from an order of the
District Court quashing an indictment for perjury.
MR. JUSTICE MURPHY delivered the opinion of the Court.
In a proceeding before a grand jury, appellees were asked
whether, in 1937, they had made certain statements to government
agents concerning earlier conversations
Page 311 U. S. 293
with one Ray Born and others regarding the operation of places
of ill repute. They denied having made the statements. The grand
jury thereupon found the indictments [Footnote 1
] now before us which charge, in effect, that
appellees' testimony was false, that it was material to the
investigation of the grand jury, and that appellees therefore
committed perjury in violation of Section 125 of the Criminal Code
(35 Stat. 1111, 18 U.S.C. § 231). [Footnote 2
Appellees promptly moved to quash the indictments on the ground
that they failed "to charge an offense against the United States."
After hearing on the motions, the trial judge entered orders in
both cases quashing the indictments because they did not charge an
offense under the statute. The cases are here on appeals from these
rulings. 18 U.S.C. § 682, 28 U.S.C. § 345; see United States v.
Borden Co., 308 U. S. 188
308 U. S.
The sole question presented by the two cases is whether the
indictments charge an offense under the statute. The indictment
against May Harris alleged that
". . . the said May Harris . . . at the times she made the
statements aforesaid [before the grand jury], then and there well
and fully knew that they were, as a matter of fact, false and
untrue in that, and for the reason that, May Harris aforesaid then
and there well and fully knew that she did in fact tell and inform
Page 311 U. S. 294
said Special Agents . . . that she had gone to Ray Born in 1932
and talked to him . . . ; that she had spoken to Lou Kissel . . . ;
that she had paid money to said James McCullough. . . . [Footnote 3
The trial judge apparently thought that the alleged perjury
consisted of contradicting, before the grand jury, the earlier
statements made by appellees in conversations with Born and others,
for, in the opinion accompanying the orders quashing the
indictments, he stated:
". . . I am satisfied . . . that perjury cannot be predicated
upon a contrary statement made by the witness at a time prior to or
after the making of the sworn statement, notwithstanding the claim
that the witness on her oath denied that she made such statements,
which, it is averred, can be proven by two or more credible
He cited several cases to show that mere proof of prior
inconsistent or contradictory statements would not support a charge
of perjury. See Phair v. United States,
60 F.2d 953, 954;
Clayton v. United States,
284 F. 537, 540.
It is evident, however, that the indictment charged perjury not
in the mere making of contradictory and inconsistent statements
concerning these conversations, but in swearing falsely before the
grand jury that appellees had never told the government agents they
had had such conversations. Moreover, proof that appellees had told
government agents that they had conversed with Born and others
would not be evidence of mere previous inconsistent or
contradictory statements by appellees affecting only their
credibility as witnesses, but would be direct evidence of the
offense itself, and hence would support the charge made in the
indictment. The difference between the instant cases and such cases
Page 311 U. S. 295
v. United States,
60 F.2d 953. therefore is obvious and
substantial. See O'Brien v. United States,
135, 99 F.2d 368.
Section 125 of the Criminal Code makes no distinction between
the false assertions of the fact of prior statements and the false
assertions of any other fact. Nor can we see any reason to make
one. As the government points out, the denial of the fact that
certain statements have been made may be equally as clear,
deliberate, and material a falsehood as the denial of any other
fact. And since statements made to government agents are generally
one of the bases upon which criminal proceedings are instituted and
indictments returned, such a distinction might substantially impede
effective administration of criminal law.
The facts stated in the indictment are clearly sufficient to
charge a violation of the perjury statute. Accordingly, the orders
quashing the indictments are reversed, and the cause is
* Together with No. 53, United States v. Kenny,
appeal from the District Court of the United States for the
District of New Jersey.
Although appellees were indicted separately, the indictments in
all material respects are identical, and the appeals present the
same question. They are therefore treated in one opinion.
"Section 125. 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."
The charge in the indictment against Marie Kenny, mutatis
is identical with the one quoted.