Commonwealth v. Smith , 93 Mass. 243 ( 1865 )

Hoar, J.

The questions raised by the bill of exceptions are numerous, and it will be necessary to consider them in detail.

The defendant was indicted for wilfully and corruptly procuring one Charles C. Northrup to commit the crime of perjury. The perjury alleged was in the false answers given by Northrup in a deposition taken in Boston, under a commission from the superior court of the city of New York, and to be used in the trial of a cause depending and at issue in that court. The commission was directed to a commissioner specially named, who was not shown to have any other authority to execute it than that derived from the appointment of the court.

The first exception is to the admission of the deposition in evidence, because the commission did not authorize the commissioner to administer a binding oath to said Northrup in this commonwealth. And in support of this exception several distinct points are taken.

1. It is urged that the commissioner was not authorized by any law of this commonwealth to take the deposition. The provision of law for the taking of depositions within this state, to be used in a cause pending in a court in any other state or government, is found in Gen. Sts. c. 131, § 38. It provides that such depositions “ may be taken before a justice of the peace in this state, or before commissioners appointed under the authority of the state or government in which the suit is pending.’* We think that under this section the commissioner had authority to administer an oath ; and that, within its meaning, he was appointed under the authority of the state of New York. The statute may have had more special reference to commissioners appointed by the executive, for the purpose of administering oaths and taking depositions generally in the state for which they are designated ; but it will include as well commissioners appointed under the judicial authority of the state as those appointed by the executive. Our own statute respecting depositions to be taken in other states or countries, to be used in this commonwealth, allows them to be taken under a commission issued by the court in which the cause is pending, to competent persons, that is, to persons not disqualified by interest or otherwise, or before commissioners appointed by the governor for that purpose. Gen. Sts. c. 131, § 34. And the reason of the thing is equally applicable to depositions taken in either mode under the authority of another state; which may be as efficiently exercised through the legitimate action of a court of record as by an executive appointment.

2. It is objected that it was neither averred nor proved that issue was joined in the cause depending in the superior court of New York from which the commission was sent; and that the statute of New York empowers a court of record to appoint a person to take the depositions of witnesses out of the state, only after issue joined in a cause. But on looking at the indictment we find it is distinctly averred that on the day named a cause was depending, and that an issue was then and there joined in the cause between the parties ; and that on the same day “in the. said cause then and there so depending as aforesaid a commission was duly issued.” This is a sufficient allegation ; and there is nothing in the exceptions to show that it was not supported by proof. Evidence was offered “ to show the pendency of an action as alleged in the indictment.” We must presume that this evidence showed an action in which issue was duly joined. Nothing to the contrary is stated, and there is no fact reported upon which tne objection can be sustained.

3. It is then argued that the instructions accompanying the commission directed a particular form of administering the oath, namely, by causing the witness to lay his hand upon and kiss the gospels ; and that this form of administering the oath is not the lawful form in this commonwealth, unless in cases where it is found to be more binding upon the conscience of che witness than the form directed by our statute. By Gen. Sts. c. 131, § 8, it is provided that “ the usual mode of administering oaths now practised in this state, with the ceremony of holding up the hand, shall be observed in all cases in which an oath may be administered by law,” except in cases of conscientious scruples, or where the court or magistrate is satisfied that some other mode is more solemn or obligatory on the person to be sworn than holding up the hand. It is undoubtedly important and desirable that some proper and solemn form of administering oaths should be adopted and observed, and the injunction of the statute is to be regarded for this purpose. But the holding up the hand is a ceremony attending the taking of the oath, and is not to be regarded as of the essence of the oath itself. If this were not so, a person without hands and having no conscientious scruples or opinions in regard to the form could not be legally sworn to testify in this commonwealth. The provision as to the form is to be considered as directory only; and the oath administered by the commissioner was valid and effectual to oblige the witness to testify.

The next exception to be considered is that taken to the exclusion of the letters written by Craig to Rowe, which were offered in evidence on the ground that there was proof of a conspiracy between Craig, Rowe and Northrup, and that therefore the acts and declarations of either of them were admissible against the others. The rule of evidence for which the defendant contends is well established, but we do not think the facts proved were sufficient to show a conspiracy, and so the case is not brought within the rule. A conspiracy must be to do an unlawful or criminal act. The proof only tended to show that Craig and Rowe had acted in concert to induce Northrup to come into this commonwealth to testify, and had offered him pecuniary inducements to do so. But this is not criminal or illegal. It does not appear that they tried to induce him te testify to anything which was not true. The ruling at the trial was therefore right.

The next point taken arises upon the admission of evidence that the wife of the witness Northrop, before her marriage with him, lived with the defendant as his mistress. The objection to this evidence was that it was irrelevant, and tended to prove no allegation in the indictment, but only matters mentioned in the innuendoes therein.

It is averred in the indictment that the question became material in the cause and in the issue between the parties, whether the wife of the said Northrop had been living with the defendant Smith as his mistress, before the said Northrop married her. It is then alleged that in the eighteenth additional cross-interrogatory propounded to the witness he was interrogated as follows : “ Had she not been living with the defendant (meaning said Smith) before you married her ? ” (meaning living with said Smith as his mistress,) and- that to this interrogatory the witness falsely, wilfully and corruptly answered that “ she had not,” and “ No.” The point upon which the defendant relies is, that the material question was whether she had lived with him as his mistress; that the interrogatory propounded was whether she had lived with him; that the question averred to be material was not asked, and the question asked is not averred to be material.

The crime of perjury is the taking of a wilful false oath, by one who, being lawfully required to depose the truth in any judicial proceeding, swears absolutely in a matter material to the point in question. The testimony must not only be wilfully false, but it must be material to the issue. The prosecutor must prove that it is thus material; and it is also necessary that it should be alleged in the indictment that the matter sworn to was material, or that the facts set forth as sworn to, and upon which the perjury is assigned, should be sufficient in themselves to establish the materiality. The King v. Nicholl, 1 B. & Ad. 21. Commonwealth v. Pollard, 12 Met. 225, and cases there cited. But it is not essential that the interrogatory propounded to the witness should be set forth in the indictment, unless it is necessary to make the answer which he gives intelligible. It is not even requisite that any specific interrogatory should have been put to him, since the perjury may be committed in the course of his own relation of the facts. Commonwealth v. Knight, 12 Mass. 273. And we think the defect in the defendant’s argument upon this point is, that it confounds the question at issue with the interrogatory put to the witness. The usual form in indictments for perjury is to aver that “if then and there became and "was a material question upon the issue aforesaid.” But the word “ question ” there means “ subject of inquiry.” If the indictment sets out a material subject of inquiry, upon which the witness was called to testify, and in answer to any question, or without any specific question, in his statements made while testifying, it shows that he gave testimony on that subject which was material, and that his testimony was wilfully false, it contains a sufficient description of the perjury. It is certainly not necessary that the interrogatory to the witness should be such that every possible answer that could be given to it would be material to the issue, in order to admit of an assignment of perjury in an answer. On the contrary, if a question is asked upon a material subject of inquiry in a cause, which, answered affirmatively, might or might not furnish material evidence, but which, answered in the negative, necessarily includes and covers something that is material, then we can have no doubt that a negative answer wilfully and falsely made is perjury. It is in the answer that the perjury is committed; and it must appear by the indictment, either by direct averment or from the matter shown on the record, that the answer was material. In the indictment before us, whether the wife of Northrop lived with Smith as his mistress before her marriage is directly averred to have been a material question upon the issue in the cause. Neither the interrogatory put to the witness nor the answer made by him is directly averred to have been material. Unless, therefore, the answer appears to have been material without such averment, the objection must prevail. We give no effect to the innuendo enlarging the meaning of the interrogatory We have only to consider whether, as it was propounded to the witness, it allowed and received an answer wilfully false upon what appears by the indictment to have been material to the issue. And it is very clear that it did. To testify that she never lived with Smith was to testify that she never lived with him as his mistress. That the answer included more than was material makes no difference. It expressly negatived an essential part of a fact in issue which the indictment averred to be material.

To say that if the witness had answered truly, his testimony would have established no material fact, does not meet the proposition. That may be true. The interrogatory was merely whether his wife did not live with Smith before her marriage; and if he had said that she did, it would not have proved that she lived with him as his mistress, which was the fact averred to be material. If he had said that she did, and that had been untrue, there is nothing in the averments in this indictment which would show that such an answer, though wilfully false, would have been perjury. But the interrogator may not have intended, certainly he was not bound, to prove the whole of the material fact by this witness. Yet his question admitted, and the witness chose to give, an answer that was material; which did not merely avoid the material subject of inquiry, but was evidence expressly negativing the fact which it was material to establish in the cause. The evidence offered and admitted was therefore competent under the averments of the indictment.

The remaining exceptions are those taken to the instructions given to the jury at the trial, and to the refusal of the judge to give the instructions asked by the defendant. The instruction which relates to the authority of the commissioner to administer the oath has been already disposed of. The others may be considered together, and they all depend upon three propositions, on which the defendant relies :

1. That subornation of perjury is a substantive felony, and not governed by the rules which would apply to the crime of being an accessory before the fact to perjury.

2. That if the defendant sent a letter to Northrup for the purpose of inciting him to commit perjury, and thereby procured him to commit that crime, if the person by whom the letter was sent knew and participated in the guilty purpose and procurement, the defendant cannot be convicted of subornation of perjury, but only of being an accessory before the fact to the felony of subornation committed by the person who carried the letter.

3. That if the defendant, when out of the jurisdiction of this commonwealth, wrote a letter to Mrs. Northrop with the intent and understanding with her that she should communicate its contents to her husband to incite and procure him to commit perjury in the Commonwealth, and she did so communicate them, and he was thereby incited to commit the perjury, the defendant could not be convicted upon this indictment.

There are undoubtedly some peculiarities respecting the crime of peijury, both at common law and as affected by statute. Thus it may be doubted whether more than one person can be charged with perjury in one indictment; or whether the pres* ence, when the false testimony is given, of a person who has counselled and procured the peijury to be committed, makes him a principal in the crime. The case in which it was held that several persons cannot be joined, appears, however, to have been a case of distinct perjuries. Rex v. Philips, 2 Stra. 921. But two persons have been joined without objection in a prosecution for subornation of peijury. Regina v. Rhodes, 2 Ld. Raym. 886. And one defendant has been charged with peijury, and another with suborning him to commit it, in the same indictment. Regina v. Goodfellow, 2 Russ. on Crimes, 622, note o. The crime of subornation of peijury is clearly in its nature that of an accessory before the fact to the perjury. Both peijury and subornation are felonies under our statute, being punishable by imprisonment in the state prison. Gen. Sts. c. 163, §§ 1, 2, 3 c. 168, § 1.

Whoever procures a felony to be committed, though it be by the intervention of a third person, is an accessory before the fact, for it is not necessary that there should be any direct communication between the accessory and the principal. Rex v Cooper 5 C. & P. 535. Foster’s Crown Law, 125. 2 Hawk. c. 29, §§ 1, 10 Earl of Somerset’s case, cited in 19 Howell’s State Trials, 804 And the accessory is a felon,' though his felony is different in kind from that of the principal. Foster’s Crown Law, 343. So it is said to be a principle in law which can never be controverted, that he who procures a felony to be done is a felon. 1 Russ, on Crimes, 32.

We cannot sec that the application of these principles is changed, when the crime of the accessory before the fact is made by statute a substantive felony. The object of making it a substantive felony may be either to provide a distinct or milder punishment upon conviction, or to authorize the indictment and conviction of the accessory where the principal has not been convicted. But whether the crime is made the subject of separate prosecution and punishment or is to be included in an indictment with the principal offence will not, in the opinion of the court, change the definition of it, or alter the facts or circumstances in which the commission of it consists. The same facts, to be averred and proved in the same way, will substantiate the crime in one case as in the other. Thus, without any special provision of statute, any one inciting or counselling a murder afterward committed would be an accessory before the fact, whether be incited or counselled the actual perpetrator directly or through the intervention of another accessory. So he that procured the commission of peijury was guilty of subornation of perjury, whether his procurement was immediate or by the instrumentality of another suborner. In either case a change in the mode of indictment would not change the proof of what constitutes the crime. The crime of inciting or counselling the murder could be committed by the same person and by the same acts, although the guilt of the accessory were made a substantive felony, to be punished without reference to the prosecution of the principal. The crime of subornation of perjury would consist in procuring peijury to be committed, directly or indirectly, as much after subornation was made a felony as before.

In construing the provisions of Gen. Sts. c. 168, we must have reference not only to their apparent design and meaning, but to other provisions of the body of laws, of which that chapter forms a part. The first section gives a new and technical definition of felony, differing from that of the common law The common law incidents of felony would generally be held to attach to the felonies thus defined; but they would not be so held, where such a result would conflict with other statute provisions. Thus, § 4 provides that “ whoever counsels, hires or otherwise procures a felony to be committed may be indicted and convicted as an accessory before the fact, either with the principal felon, or after his conviction ; or may be indicted and convicted of a substantive felony, whether the principal felon has or has not been convicted, or is or is not amenable to justice; and in the last mentioned case may be punished in the same manner as if convicted of being an accessory before the fact.” This section materially alters the common law in relation to the indictment and trial of accessories. But it was held in State v. Ricker, 29 Maine, 84, in construing a similar statute of the state of Maine, that the defendant must still be charged in the indictment as an accessory and not as a principal. And on the other hand, we cannot suppose that the provision as to punishment would apply to a case where the accessory is expressly made subject to a penalty less than that allotted to the principal, as in c. 160, §§ 15 and 16. The section makes a general provision for the case of accessories before the fact to felonies, which is made to some extent in other parts of the statutes in regard to particular felonies, and for which there is a different provision elsewhere in regard to others. It is undoubtedly specially designed for the case of accessories to felonies before the fact for which no other provision is specifically made; but we see no reason why it is not applicable to all cases within the scope of its terms, when not inconsistent with any other statute.

A similar rule of construction may be applied to § 5, which declares that “ a person charged with the offence mentioned in the preceding section ”—that is, with the offence of counselling hiring or otherwise procuring a felony to be committed — “ may be indicted, tried and punished in the same court and county where the principal felon might be indicted and tried, although the offence of counselling, hiring or procuring the commission of such felony is committed on the high seas or on land within or without the limits of this state.”

Applying the two sections to the case at bar, the result of the views we have expressed may be stated thus. Perjury is a felony by statute. Whoever procures any felony to be committed may be indicted and convicted of a substantive felony under § 5. Subornation of perjury, consisting in procuring the felony of perjury to be committed, has been made a substantive felony by Gen. Sts. c. 163, § 3. But making it a felony does not change the definition of the crime, or make it any the less subornation to procure the commission of perjury through the agency of another guilty party, any more than the general provision that one who procures a felony to be committed may be indicted for a substantive felony changes the definition of what will constitute an accessory. The 5th section makes any one who procures a felony to be committed liable to indictment and conviction in the county in this state in which the felony was" actually committed, although the procurement was made without the limits of the state. It is equally applicable in its terms and in its reason to the case where the procurement is also made a substantive felony in some other chapter and section of the statutes. The defendant was charged in the indictment with procuring Northrup to commit the felony of perjury, and it was averred and proved that Northrup committed that felony in the county of Suffolk. The defendant might therefore be indicted and convicted in the same county, although he wrote the letter which incited and procured the perjury out of the state, and its contents were communicated to Northrup by an agent who participated in his guilty purpose.

Exceptions overruled.

A new trial was subsequently granted in this case, in the superior < curt, by Putnam, J., fat ne wly discovered evidence.