State v. Lowe

I concur in the opinion of Justice Budge herein. I think, however, that the most serious defect in the indictment consists in the absence of averment as to what defendant said to the grand jury, the nature of the investigation then pending before them and the materiality of the statements made.

The "matter in respect to which the offense was committed," (see sec. 19-1326, I. C. A.) was evidently something that the defendant is alleged (inferentially) to have sworn to before the Ada county grand jury and which he allegedly denied on the witness stand in the district court. The indictment fails to advise defendant what matter or issue was being inquired into by the grand jury nor does it state the time, nor the particular testimony he gave before the grand jury which he subsequently denied under oath in the district court. This was absolutely essential in order to enable the court to determine the materiality of the testimony, and likewise necessary to enable the defendant to know what he would be called upon to defend himself against. The crux of the case against defendant was the testimony he gave before the grand jury that he subsequently denied before the district court; and it was therefore of first importance that the indictment inform him ofthe matters and things he stated to the grand jury that it isclaimed he denied saying. We have on several occasions pointed out the importance of an indictment or information apprising the defendant of "the acts constituting the offense in ordinary and concise language and in such manner as to enable a person of common understanding to know what is intended." (Sec. 19-1309, I. C. A.; State v.Smith, 25 Idaho 541, 138 P. 1107; State v. McMahan, 57 Idaho 240,65 P.2d 156.)

Here, the only thing in the indictment, in the way of statement of the testimony given, is as follows:

"That Charles R. Lowe. . . . did in a matter material to said case and matter before said Court, . . . . having taken such oath as aforesaid, wilfully, corruptly, falsely, and feloniously, state, declare and testify the truth to be, that he, the said Charles R. Lowe, while testifying before the GrandJury of Ada County, State of Idaho, had not testified before the said Grand Jury that he had bought the hay from Hodson, and that it, or some of it, had been delivered, and part had been used before W.H. Abendroth called at the hospital, and the said defendant further testified as aforesaid, the truth to be, that he had not stated to the said Grand Jury that he did not discuss hay at all with W.H. Abendroth at a meeting between he and Mr. Abendroth at the said Charles R. Lowe's office at Blackfoot, Idaho," etc. (Italics supplied.)

An analysis of the foregoing reveals an utter failure to allege the question or issue that was being investigated by the grand jury and also a total failure to state the testimony that defendant gave before the grand jury that he subsequentlydenied before the district court. These things are essential to the validity of the indictment. (State v. See, 4 Wash. 344,30 P. 327; Treece v. People, 96 Colo. 32, 40 P.2d 233;State v. Roberts, 22 Wash. 1, 60 P. 65; State v. Witham,6 Or. 366; Commonwealth v. Taylor, 96 Ky. 394, 29 S.W. 138;Davis v. State, 79 Ala. 20; State v. Argo, 118 Tenn. 377,100 S.W. 106; Hilliard v. United States, 24 Fed. (2d) 99.) Furthermore, this indictment fails to charge that the statement made before the grand jury, whatever it was (which is not disclosed), was true or false. This indictment merely charges the defendant with denying in the district court that he made some contrary statement before the grand jury.

It has been stated by very high authority that: "If the pleader sets out contradictory oaths, it is also essential to show which is true and which is false." (Hilliard v. UnitedStates, 24 Fed. (2d) 99; 3 Bishop, New Cr. Proc., sec. 918.)

The state cites and relies on People v. Ah Bean, 77 Cal. 12,18 P. 815, in support of the contention that it was unnecessary to state the nature of the controversy or question pending before the grand jury concerning which defendant testified or to set out the specific testimony he gave. It must be conceded that the ease tends to support the state's contention. The case, however, should not be accepted as controlling here, for the reason that it involved the simple and single issue of the falsity of certain testimony given by the accused while testifying as a witness in and before the same court to which the indictment of defendant was returned. No question confronted the court in the Ah Bean case involving the denial of testimony given by the defendant in or before another tribunal or body. Treece v. People, supra, involved testimony given before a grand jury and the point is very clearly stated as to why the testimony should be stated and thenature of the inquiry set out, in order that the materiality of the evidence may be determined by the trial court as well as understood by the defendant in preparing his defense. To the same effect is State v. Witham, supra.

The law does not undertake to punish every false statement a man may make either in litigation or otherwise; that would be too great a task for the state to assume or the courts to hear. It is only willful falsehood about a material matter at issue or involved in some matter requiring the sanction of an oath that the state may prosecute. The peculiar nature of the controversy attempted to be presented by the indictment before us furnishes my only reason for this discussion.

Holden, J., concurs.