Commonwealth v. Nailor

Opinion by

Smith, J.,

When an indictment contains more than one count, each count forms a distinct indictment, though the counts are signed collectively by the district attorney. Here each count is in form a complete indictment, signed by the district attorney. But the legal effect of this joinder is not changed by the form of the counts, or by, the district attorney’s signature to each ; the instrument remains in law an indictment containing two counts. And when a written instrument is contained on two or more sheets, it may be necessary that these should be fastened together to show their relation. The manner in which this is done is not material; it is sufficient that they are so attached to each other as to show that they are parts of one instrument. In the present case this lias been done, and the action of the grand jury and the court has been on the connected sheets as a single indictment. Hence the appellant’s objections on. this point are not well founded.

The legal rules relating to the date of the offense, as laid in an indictment, have been sufficiently stated in the preceding case, which was based on the same transaction from which the indictment in the. present case arose. One of these rules is that the date must not be uncertain, and that two dates must not be laid for an offense completed on a single day. Tested by this rule, the first count of the indictment before us is fatally defective. In its essential points, it avers the holding of a coroner’s inquest on April 7, 1904, in which the defendant was among the witnesses sworn and examined; an adjournment of the inquest to April 22, when the defendant was further examined; it then sets forth the matters which it was material for the inquest to know; and follows with the averment, “ That the said Lizzie Nailor, sworn as aforesaid, did then and there unlawfully, willfully, corruptly and falsely swear and testify ” to the matters assigned as perjury. Here are two dates, to which, in the structure of the indictment, the words “ then and there,” as the time and place of the offense, equally apply; • hence the date to which they refer is wholly uncertain. If they may be understood as referring to both, the result is a charge of the same offense on each day, and is, in effect, duplicity, as charging two offenses in one count. A further defect appears, which is of itself fatal. It is a settled principle that when a statute describes, defines,' or creates an offense, and fixes a penalty, the indictment must charge the offense, substantially, in the statutory language. Section 14 of the penal code of March 31,1860, P. L. 382, provides that “ If any person shall willfully and corruptly commit willful and corrupt perjury,” the penalty therein prescribed shall be imposed. Here the count under consideration, after negativing the truth of the defendant’s testimony, avers that she well knew that it was “ false, perjured and corrupt, contrary to the form of the act of the general assembly,” etc., but fails to aver that the de-’ fendant, in manner and form aforesaid, then and there willfully and corruptly did commit willful and corrupt perjury. It charges no offense, either at common law or under the statute. As to this count, therefore, the judgment cannot be sustained.

In the second count, June 6, 1904, is laid as the date of the offense charged. This is subsequent to the complaint and hearing on which the count is based. Yet being prior to the finding of the indictment, subsequent to the statuté describing the offense and fixing the penalty, and within the period prescribed by the statute of limitations, it is well laid, according to the principles referred to in the preceding case.'

The contention that the defendant cannot legally be tried for the perjury charged, pending the indictment for abortion, cannot, under the circumstances, be sustained. The rule that the proceeding in which, it is charged, the perjury was committed, must be ended before the accused can be tried for perjury, so far as it applies to the case in hand, supports the commonwealth’s contention in the premises. While the present indictment grew out of the coroner’s inquest, its relation to that proceeding is not such as to bring it within the established rule. The present prosecution was not commenced until after the inquest had ended, and is a totally distinct proceeding. Had it been commenced by the commitment of the defendant by the coroner, on a verdict charging her with having caused the death under investigation, a different question would be presented.

It is the duty of a coroner to hold an inquest super visum corporis when there is reasonable ground to believe that death was caused by unlawful violence or other undue means. Should the evidence before him fail to show such cause of death, his jurisdiction in the premises is not thereby ousted, yet, upon a charge of perjury on the part of a witness, the materiality of the testimony which is the subject of the charge remains to he considered. To sustain the charge of perjury, the testimony must be not only false, but material to the issue. Among the cases illustrating this point are Crookshank v. Gray, 20 Johns. 344; Ross v. Rouse, 1 Wend. 475; Power v. Price, 12 Wend. 500; Power v. Price, 16 Wend. 450; Com. v. Pollard, 53 Mass. 225; Com. v. Grant, 116 Mass. 17. On a coroner’s inquest, the issue is whether the death was caused by unlawful means. Evidence, either direct or circumstantial, tending to show that it was thus caused, is material, and so, also, is evidence in contradiction of this. But when it is shown that death was not due to such means, evidence relating to some act which in no way contributed to it is not material to the inquiry, and testimony on such a point lacks the materiality which is an essential ingredient of perjury. The case in hand presents a striking illustration. ' The inquest was held upon suspicion that death was the consequence of a miscarriage, unlawfully produced. The only operation shown to have been performed on the deceased was a not uncommon one for the replacement of a displaced uterus, and the evidence shows no relation between this and the death of the patient four months later. The testimony on this point was wholly immaterial, since it failed to support or contradict the view that death resulted from a criminal operation. If, indeed, the testimony of the accused had been the only evidence on which this conclusion rested, the question of its mate, riality would present a different aspect. But it was fully sus-, tained by the medical testimony produced by the commonwealth, and on the trial it was expressly admitted by the commonwealth “ that the operation was not a criminal operation, and a perfectly proper one.” By this admission, and the evidence on which it was based, the question of death from unlawful meanso was eliminated from the case. Testimony in denial of an operation admittedly proper, and without bearing on' the cause of death, was wholly immaterial to the purpose of the inquest,— as much so as if it had related to the reduction of a dislocation, or the paring' of the finger nails. The matter in issue before. the coroner was apparently obscured by. the form of the question put to the witness. This related to “an operation,” a term of indefinite scope, ranging, technically, from the extraction of a splinter with an instrument of any kind to an amputation, or the removal of a malignant growth, or of a fetus. It "does not appear how the defendant understood the word, or how the coroner intended it to be understood. If she understood it as meaning a miscarriage, her denial that there was an operation was corroborated by the medical testimony on the part of the commonwealth showing that there was no miscarriage. If she understood it otherwise, her testimony respecting it was immaterial, since there was no evidence that death was due to any operation.

In this view of the controlling features of thé case, the defendant’s ■ testimony in denial of declarations alleged to have been made by her is immaterial. Further than this, the evidence in contradiction lacks the weight and certainty requisite, to convict, even in the absence of the direct evidence in disproof of death by unlawful means.

There are some unusual features connected with the two prosecutions of the defendant in this case, which we may properly notice. Though not formally accused before the coroner, her examination was obviously conducted on the theory that she was guilty of having taken part in a criminal operation, and aimed at obtaining admissions criminating herself. If such a course is to be permitted, it should certainly be with the caution that the witness is not legally required to make such admissions. The only caution that appears to have been given the witness was a notice, by the district attorney, that “ if she didn’t tell the truth there was ten years waiting for her.” The prosecution of the defendant, on both charges, appears marked by peculiar rancor. Though, on the trial for perjury, the commonwealth admitted that the operation in the case was not criminal, but perfectly proper, in the subsequent trial for abortion, on substantially the same evidencé, it pressed for the conviction of the defendant for aiding in this operation, as a criminal abortion. And while the defendant has been convicted of both the offenses charged, the professional operators in the affair — the principal culprits if, as the commonwealth insisted, an abortion had been committed, — have been allowed to escape prosecution.

Judgment reversed and defendant discharged from her recognizance.