State v. Sargood , 80 Vt. 415 ( 1907 )

Munson, J.

This is an indictment for perjury alleged to have been committed on an inquiry before the grand jury regarding the poisoning of certain colts, and upon the trial in county court -of an indictment charging the respondent with poisoning them. The respondent demurred' to the indictment, showing for cause of demurrer that in neither of the counts is it set forth by what court, magistrate or person the oath to the respondent was administered on the occasion when the crime is alleged to have been committed. The indictment follows the statutory form, and the statutory form is sufficient in this particular. State v. Camley, 67 Vt. 322. This being the only point made in support of the demurrer in the court below, the other matters now suggested will not be considered. State v. Schoolcraft, 72 Vt. 223.

It is claimed that the court erred in permitting the jury to base a conviction upon certain statements made to the grand jury, inasmuch as it did not appear that the respondent knew , what person or matter was being investigated, and so could not understand what statements had bearing or weight. We are referred to no authority, and have seen none, that treats knowledge of the materiality as an element of the crime.

It is objected that the court erred in instructing the jury that certain statements were material to the issue. It is clear that all of them were statements that might properly have influenced the jury in reaching its conclusion, and this was sufficient. 2 Bish. Cr. Law, 3rd Ed. § 998.

It is charged that the respondent committed perjury in testifying on his trial for poisoning the colts that he did not poison them. The court held that the record of his conviction in that case was conclusive proof against him in this case that he did poison them. The respondent insists that this was error.

It has been repeatedly held that the determination of an issue of fact in a criminal case is conclusive thereof in a subsequent criminal proceeding between the same parties. 24 A. & E. Ency. Law, 2d Ed. 831; Mitchell v. State, 140 Ala. 118, 103 Am. St. 17 and note. The rule is commonly stated without recognizing any exception, but is to be tahen with some limitations.

The few cases bearing upon the precise question before us are reviewed by Mr. Freeman in the note above cited. It has been held that a prior acquittal of an offence is a conclusive adjudication in the respondent’s favor upon a subsequent trial for perjury committed in swearing to his innocence. United States v. Butler, 38 Fed. 498; Petit v. Com. 22 Ky. Law. 262; Cooper v. Com., 106 Ky. 909; 90 Am. St. 275. There was a dissenting opinion in the ease last cited, and there seems to be substantial ground for questioning these decisions. The reasoning amounts to this: The respondent procures an acquittal by his own perjury, and that acquittal is conclusive evidence that he did not commit perjury. But if the adjudication is not to be held conclusive in the respondent’s favor, the ordinary rule of mutuality would require that it be not held conclusive against him. This may not follow, however, when the holding is placed upon the ground that the acquittal was procured by the respondent’s fraud. It has been held in other cases that an acquittal is not an adjudication that the respondent did not commit perjury in denying his guilt. State v. Caywood, 96 Iowa 367; Hutcherson v. State, 33 Tex. Cr. 67. It is said in the case last cited, but without stating the grounds of the conclusion, that such evidence is not admissible to show either the guilt or the innocence of a defendant.

-The rule under consideration does not apply unless the measure of proof required in the adjudged case was as great as that required in the ease on trial. Riker v. Hooper, 35 Vt. 457. This alone will ordinarily prevent the application of the rule when one case is civil and the other criminal. Freeman on Judg. § 319 a. Nor does the doctrine apply when the rules which determine the instruments of proof are different. 1 Green. Ev. § 537. The fact that a conviction may have been obtained by the testimony of the plaintiff is one of the reasons given for excluding proof of it in a civil action where the plaintiff cannot testify. Quinn v. Quinn, 16 Vt. 426; Robinson v. Wilson, 22 Vt. 35; State v. Cazeaux, 8 Mart. 3Í8: 13 Am. Dec. 288. A difference of requirement regarding the instruments of proof is equally controlling where both cases are civil. Steph. Dig. Ev., Art. 41, (d.) We see no reason why this distinction should not be recognized when both cases are criminal. Whatever the amount of evidence ordinarily adduced, there is no rule that requires more than the evidence of a single witness in criminal cases generally. There can be no conviction of perjury on the uncorroborated testimony of a single witness. An application of the rule in cases like this might result in convictions upon less evidence than the law requires. This serves to distinguish cases of perjury from criminal cases generally, and renders the doctrine of res judicata inapplicable.

Exceptions sustained, judgment and sentence reversed, and •cause remanded.