Yessen v. State

DISSENTING OPINION My brother Gilkison has ably stated the record as well as the legal principles involved, and I agree with his reasoning. However, the importance of the questions presented is of such magnitude that further notice should be brought to the attention of the profession.

The record discloses the prosecuting witness was in fact a neglected, delinquent and incorrigible child of twelve years, and a ward of the County Department of Public Welfare. Appellant was sixty years of age, born in Syria, and was so unfamiliar with the English language that the trial judge as well as counsel had great difficulty in understanding his testimony. Among other defenses, he tried to convey to the court his contention that he was impotent. His unique testimony on this subject to me would have been convincing as a trial judge, but I realize the trial judge had the right to determine his credibility as a witness, and that we are not permitted to review for this. But I would not affirm the action of the trial court in overruling the motion for a new trial, nor can I condone or approve the particularly unenlightened position the state has taken since the time the motion for new trial was filed.

It would not be necessary in this appeal to decide that in all cases where a female adolescent child makes a charge that a man has committed a sexual offense upon her, that a psychiatric examination should be had. There may be cases where corroborative evidence leaves no doubt that the crime was committed, but this is not such a case. The state was well advised before the prosecution was instituted that its only witness whose testimony could justify conviction was not a normal child.

She was within the control of the state at all times. No doctor examined her until months after the alleged offense. Ordinary prudence on the part of the state would require that she be given a physical examination by a competent physician as soon as her story of the offense was made known. Instead of that she was examined a short time before trial, and told several other witnesses that the doctor stated she had not been ravished. The testimony of the physician who did make the examination was based on possibility and not probability. He never attempted any psychiatric examination to determine if she was telling a creditable story. There was no reason at any time why the state, with all of its power and authority over one of its wards, could not have had her examined by a competent psychiatrist who would be able to correctly advise the prosecuting attorney and the court whether she was a truthful child, or one of the many who are all too prone to tell libidinous stories of sexual events which are only a figment of the imagination.

If the incidence of such occurrences and resulting miscarriages of justice is so high that the American Bar Association has taken official notice, and such an eminent authority as Dean Wigmore advocates psychiatric examination of the alleged victim in order to protect accused persons from being imprisoned on such perjured tales, it is imperative that the prosecuting officials, the trial judges, and courts of review take cognizance of the grave dangers involved in any such prosecutions. If it was important that she be given a psychiatric examination before testifying, it was even more important that the trial court should have had the benefit of the evidence of a competent psychiatrist after she had repudiated all of her testimony implicating appellant. The state ought not be permitted to rely on the presumption of the regularity and validity of a judgment, and take no steps to enlighten the trial court, or put this court in a position to have more facts in the record on appeal.

At the time this appeal was argued the state contended that the affidavit of retraction by the prosecuting witness was false, yet at the same time the state admitted that no steps whatever had been taken to determine how she happened to execute such affidavit. If this affidavit was perjured, it would hardly be common sense to suppose that she committed perjury without the aid and advice of someone else. If it was perjured, it was suborned perjury. The state should be vigilant to discover and punish for such an offense, but it was not in this case. The powerful arm of the grand jury should have been used to investigate and discover who suborned this perjury, and the guilty person or persons should have been indicted for subornation of perjury, even before the motion for new trial was ruled upon. Nor did the state after her retraction bring her into open court for examination under oath concerning her affidavit or her testimony at the trial. The fact that the state did nothing to determine who caused the execution of this affidavit is consistent only with the position that the affidavit of retraction stated the truth. The state's inaction speaks louder than its words.

It should be evident that no civilized judicial system should permit to stand any judgment of conviction which is wholly based upon perjured testimony. We are not dealing with a case of impeached testimony or retraction of corroborative evidence. We have here an exceptional case where the record discloses that the trial court did not and could not know whether or not an innocent man was convicted of a serious felony. This court has previously held that a conviction which could not stand without perjured evidence, should be vacated. Dennis v. State (1885),103 Ind. 142, 2 N.E. 349; Partlow v. State (1924), 195 Ind. 164,144 N.E. 661; Davis v. State (1928), 200 Ind. 88, 161 N.E. 375. The holding in Bolton v. State (1945), 223 Ind. 308,60 N.E.2d 742, that the inquiry in cases of retracted testimony is directed to the determination of which time the witness told the truth, and that the discretion of the trial court in ruling on such inquiry should not be reviewed unless a clear abuse is manifest, is not in conflict with the position of this dissent. Here there was a gross abuse of discretion.

The rule is well settled that it is a denial of due process under the Fourteenth Amendment for a defendant to be convicted in a state court upon perjured testimony, when that fact is known to the state. Mooney v. Holohan (1935), 294 U.S. 103, 79 L. Ed. 791, 55 S. Ct. 340, 98 A.L.R. 406; White v. Ragen (1945),324 U.S. 760, 89 L. Ed. 1348, 65 S. Ct. 978; Pyle v. Kansas (1942),317 U.S. 213, 87 L. Ed. 214, 63 S. Ct. 177. The element of knowledge to the state makes it state action, which is the agency prohibited by the Fourteenth Amendment. The holding of these cases necessarily is that a conviction based upon such perjured testimony is a want of due process, even though it must be done by the state to make it subject to review by the federal courts. Nor can I escape the conclusion that such a conviction is a denial of due process in any event. The fact that in this appeal the trial court had a right to find that the state was not advised of the perjury until after conviction should have no weight in the administration of justice. It would be a shocking result for this court to hold that a conviction should stand based upon perjured evidence when the state discovered it after conviction, but that if the perjury was known before conviction, the conviction should be reversed.

As in many other subjects of the law, the decisions of other jurisdictions are not in accord on reversing judgments based in whole or in part on perjured testimony. Those which grant relief are based upon every consideration of principle. See Pettine v.Territory of New Mexico (1912), 201 Fed. 489; Harrison v.United States (1925), 7 F.2d 259; Martin v. United States (1927), 17 F.2d 973, Cert. denied 275 U.S. 527, 48 S. Ct. 20, 72 L. Ed. 408; Roath v. State (1932), 185 Ark. 1039,50 S.W.2d 985; Sutton v. State (1938), 197 Ark. 686, 122 S.W.2d 617;Doss v. State (1941), 203 Ark. 407, 157 S.W.2d 499; State v. Zeilinger (1938), 147 Kan. 707, 78 P.2d 845; People v.Heinen (1921), 300 Ill. 498, 133 N.E. 237; People v. Busch (1923), 228 Ill. App. 11; State v. Myers (1923), 154 Minn. 242, 191 N.W. 597; Martin v. State (1926), 34 Okla. Crim. 274,246 P. 647; McConnell v. State (1918), 82 Tex.Crim. R.,200 S.W. 842; Green v. State (1923), 94 Tex.Crim. R.,252 S.W. 499; Wadkins v. State (1925), 102 Tex.Crim. R.,277 S.W. 684; Altman v. State (1932), 121 Tex.Crim. R., 51 S.W.2d 359; Douglas v. State (1932), 122 Tex.Crim. R.,54 S.W.2d 515; Schwartz v. State (1941), 141 Tex.Crim. R.,149 S.W.2d 96; Powell v. Commonwealth (1922), 133 Va. 741, 112 S.E. 657, 33 A.L.R. 541; Hodnett v. City of Danville (1929), 152 Va. 955, 146 S.E. 281; State v. Elliott (1940),6 Wash. 2d 393, 107 P.2d 927.

The proviso contained in § 9-2105, Burns' 1942 Replacement, that "every pleading, motion in writing, report, deposition or other paper, filed or offered to be filed, in any cause or proceeding, whether received by the court, refused or stricken out, shall be a part of the record from the time of such filing or offer to file" (italics supplied), is certainly broad enough to include affidavits filed as a part of and in support of a motion for new trial. My brother Gilkison has carefully stated the history of the erroneous decisions holding that such affidavits must be made a part of the record by special bill of exceptions. This court was not constituted to perpetuate its own error, nor to indulge in judicial legislation by the nullification of the plain provisions of statutes. The special bill of exceptions rule is seldom followed in practice, and time after time we have presented here records properly certified by the clerk showing affidavits filed as a part of a motion for new trial, which are not brought into the record by special bill of exceptions. In not a single case brought to my attention has it ever been contended by the state that the record does not speak the truth, yet time after time this court has refused to see what it knows to be the truth, and so avoids passing on the merits of issues affecting the liberties of some individual who may be unfortunate enough to have counsel not familiar with this nonsensical rule.

What possible injury could society suffer by granting a new trial so that a full investigation may be had of the prosecuting witness? If her testimony at the trial was the truth, a psychiatric examination would have established its credibility. If her testimony at the trial was true, the one or ones who procured her affidavit of retraction should be properly charged and prosecuted. But if appellant has been convicted upon her perjured testimony, he should be set at liberty. It is not a matter of executive clemency when the courts have the power and the duty to grant relief from such unjust convictions, for the constitution commands us to administer justice "completely, and without denial."

NOTE. — Reported in 92 N.E.2d 621.