State v. Lowe

Respondent, Charles R. Lowe, was indicted by the grand jury of Ada county, upon a charge of perjury, to which indictment respondent interposed his demurrer "for the reason and upon the ground the facts stated in said indictment do not constitute a public offense." The demurrer was sustained and respondent ordered discharged and his his cash bail refunded. From the judgment the state has appealed and assigned as error the action of the court in sustaining respondent's demurrer to the indictment.

The charging part of the indictment is as follows:

"That Charles R. Lowe, on or about the 17th day of May, 1938, at Boise, in the County of Ada, and State of Idaho, then and there being did then and there, commit the crime of perjury, to-wit: That the said defendant, Charles R. Lowe, then and there being, did, having taken an oath before the District Court of the Third Judicial District in and for the County of Ada, State of Idaho, and the Hon. Charles F. Koelsch, District Judge presiding, that he would testify truly before said Court in a matter then and there concerning a case before said Court, to-wit: The case of State of Idaho, Plaintiff, vs.W.H. Abendroth, Defendant, Docket No. 722 of the Docket of said Court, said oath having been regularly administered by Chloe B. Burnett, the duly authorized Deputy Clerk of said District Court, who then and there had authority to administer such an oath, did in a matter material to said case and matter before said Court, he, the said Charles R. Lowe, 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 Grand Jury 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; all of which statement and testimony was false and not true, and that such false statement was made and declared by said Charles R. Lowe for the purpose of influencing the Court and a jury duly empanelled to try the aforementioned matter and case then and there before the court, and that the said false statement and oath was then and there material to the issues tendered in said cause."

The main question presented by this appeal is whether or not the indictment sets forth the substance of the controversy ormatter in respect to which the offense was committed, as prescribed by section 19-1326, I. C. A., providing:

"In an indictment for perjury, or subornation of perjury, it is sufficient to set forth the substance of the controversy or matter in respect to which the offense was committed, and in what court and before whom the oath alleged to be false was taken, and that the court, or the person before whom it was taken, had authority to administer it, with proper allegations of the falsity of the matter on which the perjury is assigned; but the indictment need not set forth the pleadings; record, or proceeding with which the oath is connected, nor the commission or authority of the court or person before whom the perjury was committed."

In the indictment under consideration "the controversy or matter in respect to which the offense was committed," was the case of State v. Abendroth, referred to in the indictment only by designating the court, the judge, the names of the parties and the docket number, as follows:

"in a matter then and there concerning a case before said Court (District Court of the Third Judicial District in and for the County of Ada, State of Idaho, and the Hon. Charles F. Koelsch, District Judge presiding), to wit: The case of State of Idaho,Plaintiff, vs. W. H. Abendroth, Defendant, Docket No. 722, ofthe Docket of said court. . . ." (Emphasis inserted.)

The question is whether the indictment, so worded, sets forth the substance of State v. Abendroth. An examination of the authorities considering statutes for all practical purposes the same as section 19-1326, I. C. A., discloses two divergent and irreconcilable lines of authority. One line, that followed in California, follows People v. Ah Bean, 77 Cal. 12, 18 P. 815, wherein it is held that in an information for perjury, charging that defendant was duly sworn in a certain case "then and there at issue to-wit the case of The People v. Martine," and setting out defendant's testimony therein, with an averment of its materiality, sufficiently "sets forth the substance of the controversy in respect to which the offense was committed" as required by Penal Code of California, section 966. To similar effect are, People v. Collins, 6 Cal. App. 492, 92 P. 513;People v. Dunstan, 59 Cal. App. 574, 211 P. 813; Williams v.State, 14 Okl. Cr. 100, 167 P. 763; State v. Reidt, 54 S.D. 178,222 N.W. 677; Atkinson v. State, 133 Ark. 341,202 S.W. 709.

The other line of authority is to the effect that the statutory requirement that the substance of the controversy or matter in respect to which the offense was committed is not met by an averment merely giving the name of the case, the court, the docket number and such matters, but that substantially what was the matter in controversy must be shown, that is, the substance of the case or the issue involved must be set forth, which principle is supported by the following authorities:

In State v. See, 4 Wash. 344, 30 P. 327, it is said:

"This indictment, it will be observed, does not describe the proceeding at which the alleged perjury was committed. The first part of the indictment, eliminating the parenthetical portion, is as follows: 'Said John See, (upon a proceeding wherein the state of Washington was plaintiff and John See was defendant) why said John See should not be punished for contempt of said court in disobeying a subpoena served upon him,' etc. It will readily be seen that no proposition at all is stated here, and that the defendant, before he can determine what is meant, must not only supply an ellipsis, but must supply the substantive part of the sentence, which we think, even under the liberal provisions of the Code, he should not be compelled to do, especially where there was a timely interposition of a demurrer."

In State v. Argo, 118 Tenn. 377, 100 S.W. 106, the court said:

"Shannon's Code, sec. 7093, provides: 'It shall be sufficient in such case to give the substance of the controversy or matter in respect to which the offense was committed,' etc. This requirement, it is clear, is not met by the averments of this indictment. There is no statement of the substance of the matter or controversy in either case. It is only averred there was a suit pending. What the substance, or substantially what was the matter in controversy, is not shown; only that it became material. This is not an averment of facts showing the materiality of the matter sworn to. This is a clear requirement of the Code, and may easily be complied with."

"The indictment should have set out the substance of the issue involved in the chancery court cause. The point of inquiry should have been stated. 'The proceeding should be identified by charging the legal name, as, for example, that it was a trial for murder or an action of ejectment; and the matter in issue must be averred with sufficient clearness to inform the person accused of perjury of the exact nature of the charge against him.' 16 Enc. Pl. Prac. p. 321, sec. 2, and cases cited in the notes. On this point the indictment charges that 'in a certain issue joined between R.B. Tennison, complainant, and H. Silberberg, defendant (No. 1,181), in the chancery court of said county and state, . . . . in making answer to a certain bill of injunction filed in said chancery court by said Tennison against said Silberberg,' etc. This amounts to no more than giving the style of the case, for there are numerous causes of equitable cognizance in which a writ of injunction may issue. The phrase 'bill of injunction' does not indicate in the remotest degree the issue involved. Section 1362 of the Code provides that an indictment for perjury shall set forth the substance of the offense charged. This statute . . . . did not intend to dispense with the necessity of setting out in an indictment for perjury the substance of the issue or point of inquiry in the case in which the perjury is alleged to have been committed;" (State v. Silberberg, 78 Miss. 858,29 So. 761.)

In Treece. v. People, 96 Colo. 32, 40 P.2d 233, the court states as follows:

"When subjected to a trial on an indictment for perjury alleged to have been committed before a grand jury when it was inquiring into an issue or point in question, the defendant is entitled to be advised by the indictment what the issue is, or as to the nature of the point in question, so that he may prepare himself to show, if he can, that though the testimony be false, it was not material, therefore the issue or point in question, and the matter under inquiry, must be stated. 'The point in question,' as stated in the statute, relates to the subject matter of the investigation and not to a particular question asked or answered." (See, also, Cowan v. State,15 Ala. App. 87, 72 So. 578.)

The word "substance" is defined by Webster's New International Dictionary as:

"The most important element in any existence; the characteristic and essential components of anything; the main part; essential import; purport."

The indictment in the instant case merely alleged the title of the case, its docket number, and the court, but does not in any manner set forth or advise respondent what the issue was, or the nature of the point in question in State v. Abendroth. The characteristic and essential components, the main part, the essential import or the purport of State v.Abendroth was not set forth in the indictment. Respondent was, by the terms of the statute, section 19-1326, I. C. A., entitled to be advised just what was the nature of the charge, controversy or matter involved in State v. Abendroth, so that he might prepare himself to show, if he could, that though the testimony was false it was not material, and in order to prepare his defense. We are of the opinion that the "substance of the controversy or matter" in State v. Abendroth, was not set forth by merely naming the case, its docket number and the court, and that the trial court did not err in sustaining the demurrer.

The judgment is therefore affirmed.

Morgan and Holden, JJ., concur.