Campbell v. State , 23 Okla. Crim. 250 ( 1923 )

From the foregoing statement of the evidence in this case it appears that there are only two disputed issues, the first being whether or not Gillette, the court clerk, swore the defendant to the affidavit, a copy of which is set out in the information, prior to the issuance of the marriage license; second, did the defendant have knowledge that the girl was under 18 years of age at the time the marriage license was applied for. On these two issues the evidence is in direct conflict. On all other questions of fact, while there are some slight discrepancies in matters of detail, there is no material conflict.

In submitting the law of the case to the jury, the court gave, among others, the following instructions:

"Instruction No. 5: The court instructs the jury that the statute provides that any person who, having taken an oath that he will testify, declare, depose, or certify truly before any competent tribunal, officer, or person in any of the cases in which such an oath may be by law administered, willfully and contrary to such oath, states any material matter which he knows to be false, is guilty of perjury. The statute also provides, gentlemen, that an unqualified statement of that which one does not know to be true, is equivalent to a statement of that which one knows to be false. The term ``oath' as used in law includes an affirmation, and every other mode of attesting to the truth of that which is stated, which is authorized by law. You are further instructed that under the statute it is no defense to a prosecution for perjury that the oath was administered or taken in an irregular manner. Neither is it a defense to a prosecution for perjury that the accused did not know the materiality of the false statements made by him, if any, or that it did not in fact affect the proceedings in or for which it was made. It is sufficient that it was material and might have been used to affect such proceedings. The statute also provides, gentlemen, that any one guilty of perjury shall be punished by confinement in the state penitentiary for any period, not to exceed five years.

"Instruction No. 6: The court instructs the jury that, if you find and believe from the evidence in this case beyond a reasonable doubt, that within the county of Caddo and the state of Oklahoma, and on or about the 8th day of December, 1919, the defendant, J.O. Campbell, did intentionally, unlawfully, willfully, and feloniously, under oath, then and there legally administered to him by Guy R. Gillette, court clerk of Caddo county, Okla., make certain false statements and declarations and affidavit in order to procure a marriage license for himself and one Flora Francis, that she, the said Flora Francis, was of the age of 18 years, and whereas in fact and in truth the said Flora Francis was not 18 years of age, and that the said statements so made in said affidavit to obtain said marriage license were known to the said Campbell to be false at the time so made, then in that event the defendant would be guilty as charged, and you should so find; and should you find the defendant guilty as charged in the information you must assess his punishment at confinement in the state penitentiary for any period not to exceed five years. You are further instructed, gentlemen of the jury, that an unqualified statement of a matter which the defendant did not know to be true is equivalent to a statement of that which the defendant knew to be false, if such statement be made, or was made, willfully, and was intended that it should be received as a statement of what was true in fact.

"Instruction No. 7: The court further instructs the jury that, before you can convict the defendant, you must believe beyond a reasonable doubt each and all of the necessary elements necessary to constitute the offense charged, which are as follows, to wit: First, that the offense occurred on or about the 8th of December, 1919; second, that it occurred in Caddo county, Okla.; third, that Guy R. Gillette was the court clerk at said time of Caddo county, Okla.; fourth, that he administered an oath to the defendant prior to the issuance of the license; fifth, that the defendant willfully stated under oath that Flora Francis was 18 years of age; sixth, that the defendant knew at said time that she was under the age of 18, or willfully made an unqualified statement without knowing it to be true; seventh, that Flora Francis was at said time under the age of 18 years; eighth, and that the statement made with reference to the age of Flora Francis was material to the issuance of a marriage license.

"Instruction No. 8: You are instructed, gentlemen of the jury, that, as a matter of law, Guy R. Gillette was the court clerk of Caddo county, Okla., on the 8th day of December, 1919, and that he was authorized under the law to administer an oath to the defendant prior to the issuance of the license, and the statement as to whether or not Flora Francis was of the age of 18 years on said date was material.

"Instruction No. 9: You are instructed, gentlemen of the jury, that, should you find and believe from the evidence, or entertain a reasonable doubt from the evidence, that the defendant merely stated to Guy R. Gillette, court clerk, that no oath administered to him by Guy R. Gillette, court clerk, with reference to the age of the said Flora Francis, you should Flora Francis was of the age of 18 years, and that there was resolve such doubt in favor of the defendant, and acquit him.

"Instruction No. 10: The court further instructs the jury that, if you find and believe from the evidence in this case, or entertain a reasonable doubt from the evidence, that the defendant merely stated the age of Flora Francis to be that of 18 years, and upon said statement the clerk issued and delivered the license to the defendant, he would not be guilty, and you should so find, although you may further find and believe from the evidence that the said Flora Francis was under the age of 18 years, and that the defendant J.O. Campbell afterwards signed an affidavit and swore to said facts.

"Instruction No. 11: The court further instructs the jury that, although you may find and believe from the evidence that the defendant signed the application for a marriage license in a certain hardware store in the city of Anadarko, after the license had been delivered to him, still if you further find and believe from the evidence, beyond a reasonable doubt, that prior to the time the license was issued and delivered to him by the clerk that he willfully stated under oath that she was of the age of 18 years, he would be guilty as charged, and you should so find."

Considerable stress is placed upon the failure of the state to prove the material allegation of the information that Gillette, the court clerk, administered an oath to the defendant prior to the issuance of the marriage license. Upon this issue Gillette swore that he administered the oath. His deputy, while not so positive as to the administering of the oath, stated that Gillette asked the defendant if he would be willing to swear that the girl, Flora Francis, was 18 years of age, and also warned the defendant of the consequences if he made a false oath about the girl's age. The deputy remembers that the defendant said that he would be willing to swear to that fact. The defendant also admits that he said he would be willing to swear to that fact. The deputy did not issue the marriage license, and it is not clear from the record whether she was present during all the time the defendant was applying for and up until the time the license was issued. The testimony of Flora Francis upon this question is somewhat contradictory, and her statements apparently cannot be reconciled. The defendant himself swore that Gillette did not administer an oath to him prior to the issuance of a marriage license. The testimony of the deputy court clerk and of the girl, Flora Francis, if discarded, leaves a clear conflict between the testimony of Gillette, the court clerk, and that of the defendant as to the administration of the oath to the defendant prior to the issuance of the marriage license. The jury determined this issue in favor of the state, evidently preferring to believe Gillette instead of the defendant. If Gillette was to be believed, then the fact that the signature of the defendant was obtained on the affidavit after the marriage license had been issued was immaterial. As section 7492, Compiled Statutes 1921, requires the clerk, upon application for a marriage license, to take the oath of a person legally competent to make one and having a personal knowledge of the facts, and section 1628, Id., defining perjury, is as follows:

"Any person who, having taken an oath that he will testify, declare, depose or certify truly before any competent tribunal, officer, or person, in any of the cases in which such an oath may by law be administered, willfully and contrary to such oath, states any material matter which he knows to be false, is guilty of perjury."

The omission, therefore, to have the defendant sign the affidavit or application at the very time the oath was administered, would be an irregularity which would form no defense to the prosecution. The material inquiries are: Was the proceeding such a one in which an oath may by law be administered, did the party take an oath to testify, declare, depose, or certify truly before any competent tribunal, officer, or person, and did such person willfully and contrary to such oath state a material matter which he knew to be false?

The conflict between the testimony on behalf of the state and that of the defendant as to the administration of the oath prior to the issuance of the marriage license was solely for the jury's determination. Remillard v. State, 10 Okla. Crim. 438,133 P. 1132, 137 P. 370; Jones v. State, 10 Okla. Crim. 450,137 P. 740.

It is also contended that the trial court erred in permitting leading questions to be propounded by the county attorney to the witness Flora Francis. This witness was a girl about 14 years of age at the time of testifying, and the record discloses that on her redirect examination the court permitted the county attorney to ask her a number of leading questions on matters elicited in her cross-examination, and the trial court overruled objections to the questions, and stated that he was "permitting the questions to be asked, for the reason that the witness appeared to be willing to answer ``Yes' to all questions, and leading questions were allowed in order that the jury might have the benefit of her willingness to answer ``Yes' to all questions."

The limitation and extent of examination of witnesses must rest largely in the discretion of the trial court. It appears from the record here that the court permitted leading questions to be asked this witness, more for the purpose of discrediting her testimony, than for the purpose of prejudicing the rights of the defendant.

An examination of this record convinces the writer of this opinion that the defendant was not in this instance prejudiced by the form and the extent of the redirect examination of this witness. Under such circumstances, and in view of the tender age of the witness, we find no abuse of discretion by the trial court, in overruling the objections to the questions on the ground complained of, such as to require a reversal of the judgment.

It is also contended that certain portions of the trial court's instructions were erroneous. In this connection it is first contended that the giving of that portion of the fifth instruction as follows: "You are further instructed that under the statute it is no defense to a prosecution for a perjury that the oath was administered or taken in an irregular manner," was harmful and reversible error, because it permitted the jury to find that, even had the court clerk administered no oath prior to the issuance of the marriage license, but had simply asked the question, as three witnesses testified he did: "Would you be willing to swear she is eighteen?" that such amounted to the administration of an oath in an irregular manner.

We are not impressed with the force or soundness of this contention when the instructions are considered as a whole, for by instruction No. 9 the jury is told that, if they should find or entertain a reasonable doubt from the evidence that the defendant merely stated to Guy R. Gillette, court clerk, that Flora Francis was of the age of 18 years, and there was no oath administered to him by Gillette, court clerk, with reference to the age of said Flora Francis, you should resolve such doubt in favor of the defendant and acquit him.

By instruction No. 10 the jury is told that, if the defendant merely stated the age of Flora Francis to be that of 18 and upon said statement the court clerk issued and delivered the license to the defendant, he would not be guilty, and you should so find, although you may further find and believe from the evidence that the said Flora Francis was under the age of 18 years, and that the defendant, J.O. Campbell, afterwards signed an affidavit and swore to said facts. In instruction No. 7 the jury is told in unmistakable language that they must find, among other things, beyond a reasonable doubt, "that Guy R. Gillette was court clerk of Caddo county, and that he administered an oath to the defendant prior to the issuance of the license."

Defendant requested no instruction asking the court to define what would be meant by the term "administering an oath." The ordinary adult has a pretty clear conception of the meaning of that term, and, in the absence of any request for a more specific definition of its meaning, and in view of the matter contained in the instructions given, heretofore quoted, we are of the opinion that the jury was not misled by that portion of instruction No. 5 above quoted and complained of.

Complaint is also made of instruction No. 11. Practically the same objection is urged against this instruction as is urged against that portion of instruction No. 5 heretofore referred to. We believe the instructions as a whole sufficiently covered the law of the case and were as favorable in stating affirmatively the defense interposed as the evidence warranted.

Further, it is contended that the court erred in refusing to give the defendant's requested instructions Nos. 1 and 2. Instruction No. 1 was a request to advise the jury to return a verdict of not guilty. While the evidence in this case is particularly in conflict on some of the material elements of the offense, there is evidence on the part of the state, which, if believed, authorized the jury to find the defendant guilty. It is not error, therefore, to refuse to give such requested peremptory instruction. An examination of the record discloses that the law contained in special requested instruction No. 2 was substantially covered in the court's general charge.

This appeal presents a conviction based upon evidence clearly in conflict upon two of the elements of the offense necessary to convict. These apparent contradictions were, as heretofore stated, for the jury's reconciliation, if that could be done; if the jury could not reconcile the testimony, then it became the province of the jury to determine whom to believe and whom to disbelieve on these important issues. This is a case the jury could have decided either way. It is not the province of this court to disturb verdicts based upon conflicting testimony, where there is evidence which, if believed, authorized the conviction. It is not our province to weigh the evidence, pass upon its conflicts or upon the credibility of the witnesses.

Undoubtedly, upon the information at hand, it would have conformed more consistently with the propriety of the duties of the clerk to have refused to issue the marriage license. To that extent perhaps the officer is open to criticism. On the other hand, the defendant displayed, after being warned, an unusual amount of determination to procure this license. The fact that the clerk is open to criticism is not sufficient reason for disturbing the judgment. The defendant's theory in our opinion was fairly and fully stated to the jury in the court's general charge, and, while some inaccuracies and incomplete statements of the law occur in separate paragraphs of the charge, these matters were cured in other portions of the charge, when considered as a whole, is not misleading, contradictory, or incomplete.

For reasons stated, the judgment is affirmed.

DOYLE and BESSEY, JJ., concur.