(after stating the foregoing facts.) The crime of subornation of perjury is usually committed in secret, by word of mouth, without leaving any of the physical signs- affoiding circumstantial evidence by which other offenses are so often established. Hence the books contain comparatively few cases on the subject; and while we have had from both sides arguments of marked ability, we find little direct authority on the only question orally argued, as to whether the perjurer is the accessory and accomplice of the suborner.
. 1. The defendant demurred to the indictment, on the ground that a suborner is the accessory before the fact to the crime of perjury, and therefore he could not be put on trial until it was charged
2. In perjury and subornation of perjury the act of the two offenders is concurrent, parallel, and closely related in point of time and conduct. The two crimes both culminate in the delivery of false testimony. Still the offenses are dual, each having in it elements not common to the other. There is sufficient inherent difference between the two to warrant the lawmaking power in separating the act into its component parts, making that of the suborner a new and independent offense, punishable with greater or less severity than that inflicted on the perjurer. The act of the suborner may be accessorial in its nature; and as it is necessary to prove perjury as well as subornation, it may often be best to try the perjurer first. But just as principals in the second degree, formerly called accessories at the fact, may now be tried before the principal in the first degree (Williams v. State, 69 Ga. 297), so the General Assembly can provide that one theretofore even a technical accessory is to be treated as principal, and under such a statute he is to be indicted and tri&d as such. The tendency of modern legislation is all in this direction, so as to do away with the distinction under which the guilt of the accessory was regarded as derivative and dependent. Many statutes now provide that each shall be guilty of a substantive and independent offense. 1 Whart. Cr. L. (10th ed.) §237. Some expressly provide that what was formerly the accessory may be tried before the principal, and the same result follows, even without such provision, when the offense of each is made separate and distinct. Thus, where a statute made aiding, abetting, or procuring a crime to be committed a sub
Nor is Com. v. Smith, 11 Allen, 243, relied on by the accused, an authority opposed to the conclusion hereinbefore stated. There the letters which procured the. false testimony were written by the defendant to the wife of the witness, who handed them to her husband, and thereafter Smith was indicted for subornation. He insisted that he was only accessory to the subornation which the wife had procured. The court held that Smith procured the wife to procure her husband to commit perjury ; that the crime of subornation is in its nature that of an accessory before the fact to the perjury ; that whoever procures a felony, though it be by the intervention of a third person, is accessory before the fact; that the accessory is a felon, though his felony is different in its kind from that of the principal; that he who procures a felony to be done is, a felon. But it thereupon proceeded to say: “ We can not see that the application of these principles is changed when the crime of the accessory before the fact is made by statute a substantive felony. The object of making it a substantive felony may be either to provide a distinct or milder punishment upon conviction, or to authorize the indictment and conviction of the accessory where the principal has not been convicted.” So far as we can learn from the report the suborner was tried before the alleged perjurer. So too, apparently, in Evans v. People, 40 N. Y. 2; Bab
3-5. If not accessories, the suborner and the perjurer are not accomplices. It is true that participation in many of the acts going to make up the two separate offenses is of such a nature as apparently to bring each close to the rule requiring corroboration; and there are some cases which hold that if the witness was in any sense a particeps criminis, there must be corroboration of his testimony before a conviction could be sustained. Roach v. State, 4 Tex. App. 46. On the other hand, when the rights of the public or of the defendant depend on the meaning of this word, neither can expect the courts to do other than apply the definition accepted and recognized in the law. The term can not be used in a loose or popular sense, so as to embrace one having guilty knowledge, or morally delinquent, or who was even an admitted participant in a related, but distinct offense. U. S. v. Van Leuven, 65 Fed. 78; People v. Sternberg, 111 Cal. 6. It must appear that the witness is an accomplice, before the law relating to accomplices can be invoked; and according to the rule laid down in many approved cases, and expressly adopted in Keller v. State, 102 Ga. 506, he is such only when it is shown that he could have been tried as principal or accessory in the offense under investigation. Others may be, but the woman can not be an accessory to seduction or rape of herself. For her to aid in the rape or to procure some one to seduce her negatives the existence of the essential element of such crimes. So likewise, in the. very nature of things, Linda Green could not procure Stone to procure her to commit perjury. And if she could not thus be an accessory to suborning herself, it would logically result that she is not within the definition of an accomplice. The same test has been applied iti other and similar cases, where the separate act of two was as necessary to complete the crime as in subornation and perjury. While there is some conflict in the authorities, most of the courts
While there must be fornication before the completion of the independent, though concurrent, crime of seduction, yet, as the woman could not be tried as principal or accessory to the crime of seducing herself, this court, contrary to the views taken by others, held, in Keller v. State, supra, that the seducer may be convicted on her uncorroborated testimony. So, by parity of reasoning, and-in strict analogy, one who suborns, or seduces, another to commit-the crime of perjury may be convicted on the testimony of the perjurer. In State v. Renswick (Minn.), 88 N. W. 22, the court held that the constituent element of perjury must be proved by two witnesses or one witness and corroborating circumstances, but the fact that he was induced to commit perjury by the person on trial for subornation may be established by the perjurer’s uncorroborated testimony. And a similar ruling was made in U. S. v. Thompson, 31 Fed. 331, where it was said, “the person solicited to-commit perjury is not an accomplice in the crime of subornation committed by the person who suborned him; and the fact that he committed the perjury does not prevent the jury from convicting the suborner . . . on his testimony.” By a divided bench the Court of Appeals of New York, in People v. Evans, 40 N. Y. 5, in
We will not discuss the question as to how far the admission by the defendant in his statement, that he had gone to Linda Green’s house at night and there talked with her as to her testimony, may amount to corroboration; nor whether Annie and Eliza Green could be accomplices because only concerned in a related but distinct offense. People v. Sternberg, 111 Cal. 6. And having determined that Linda Green, the perjurer, was not a technical accomplice of Stone, the alleged suborner, it would -be unnecessary to consider the necessity for corroboration, but for the fact that the plaintiff in error raised the point both by requests to charge and also in an attack on the verdict as being contrary to law. He insists that these three witnesses were at least participants in the crime, and if not accomplices within the letter of the definition, they were such in substance; that in considering the probative value of testimony the spirit of the rule should govern, and verbal niceties should be ignored; that according to the practice in criminal cases the jury were instructed not to convict even on the uncorroborated testimony of two or more accomplices; and that in the present case the application of these well-recognized principles of law demanded Stone’s acquittal.
This argument necessarily proceeds upon the idea that accomplices in all respects form an exception to the rule laid down as to the right of the jury to pass upon the credibility of impeached witnesses (Civil Code, § 5295); that their testimony is inherently bad; that to add testimony of one accomplice to that of another is to add nothing to nothing, the result still being nothing. On the contrary, on general principles, and until a comparatively recent date, the testimony of even a single accomplice was sufficient
6. The accused renews the attack on the verdict in view of the admission by Linda Green and her two daughters that they had committed perjury. As this was on the trial of a different case, though in reference to the same general transaction, there was no-request to charge as to the necessity for corroboration under Civil Code, § 5295. Stafford v. State, 55 Ga. 592; United States v. Thompson, 31 Fed. 333. As even conviction of the crime would not have rendered the witnesses incompetent, it was but another fact to be considered by the jury in determining what credit should be given their evidence. Civil Code, § 5294. In People v. O’Neil, 109 N. Y. 251, it was shown that two of the witnesses for the State had, in their testimony before a senate committee, committed perjury in reference to the same matter which was involved in the prosecution for bribery. It was objected that a conviction could not be sustained on their testimony, and Judge Andrews, after reciting the New York statute, which is similar to-that contained in the Civil Code, § 5269, declaring that no witness should be incompetent because of his conviction for a crime, said that “ the testimony of a witness who has committed perjury in the same matter on a prior occasion must be considered by the: jury in connection with tlie other evidence, under such prudential instructions as may be given by the court. See also Owen v. Palmour, 111 Ga. 885 (2); Phœnix Ins. Co. v. Gray, 113 Ga. 432 (3). That a witness is an accomplice, or a participant in a related offense, or a perjurer on the trial of a different case as to-the same subject-matter, or is of bad character, goes to his credibility. Such facts are, of course, matter for argument and careful consideration by the jury. No doubt they scan with anxious deliberation evidence coming from such sources. But one previously perjured may tell the truth in the case then on trial; and if, after rigid cross-examination, hearing all the testimony and listen
7. The foregoing rulings apply to the bill of exceptions pendente lite, and to the 9th, 14th, 15th, 19th, 22d, 23d, and 24th grounds of the motion. The assignments iu the 1st, 2d, 3d, 4th, 5th, 7th, 8th, 10th, 11th, 12th, 13th, and 16th grounds may be grouped and considered together. According to the theory of the State, the coaching of the witnesses extended over a period of several weeks. In this Stone and Johnson are said to have participated with the connivance of Eiley Green, the husband of Linda Green. Most, if not all, of the transactions took place in the latter’s house, and some, if not all, were in the presence of the mother and the two daughters,— Stone and Johnson both being present. The defendant objected to evidence of statements by Stone, or by Johnson iu his presence, to the twq daughters as to what their testimony should be, on the ground that, as this particular indictment did not allege any subornation of perjury as to Eliza and Annie Green, such statements wore inadmissible and irrelevant. It is not necessary to set out the objections in extenso, because the sayings and acts • were certainly admissible as part of the general scheme by Stone to procure evidence which would secure the acquittal of Newsome; and while this involved the commission of. separate acts of perjury by the mother and the two daughters, and. separate crimes of subornation by Stone, it was all relevant in that-
8. The first ground of the amended motion for a new trial is that the court admitted the testimony of Iinda Green as to messages alleged to have been sent to her by Stone through her husband, Riley Green, on the statment by the solicitor-general that he expected to make proof by Riley that the messages had in fact - been sent by Stone. In the sixth ground it is assigned as error that Riley Green having clearly failed to connect the testimony of his wife with that alleged conversation with the defendant, and having failed to state that he told his wife what the defendant had said, the court failed to rule out the testimony. No new motion was made to that effect. Where incompetent evidence is admitted on the statement that it will be subsequently connected and made admissible, it is the right of the objecting counsel to renew his motion at a later stage of the trial; and if the connection has not been made, it will then be the duty of the court to exclude the testimony with proper instructions to the jury not to be influenced thereby. But it can not be expected that in a long and tedious trial the court should bear these matters in mind, and of his own motion exclude what has been thus provisionally admitted. It is for counsel interested to remind him of the circumstances and have it ruled out, if he so desires. It may often happen that counsel" may prefer to let the evidence remain in the record. Subsequent testimony may make the former evidence helpful to the party who originally objected. At any rate, if counsel remain silent, the court is authorized to conclude that the party regards the evidence admitted as immaterial, not hurtful, or possibly helpful.
It was not error to charge the law relating to perjury, and the
The definition of subornation of perjury is absolutely concise. Whoever shall procure another to commit the crime of perjury is guilty of subornation of perjury., It says.nothing as to how the procurement shall be made successful; and the indictment, being in the language of the code, was sufficient without showing how and why the threat to prosecute procured and induced the perjury. Penal Code, § 260; State v. Greer (Kan.), 30 Pac. 236 (1).
We find nothing requiring the granting of a new trial in any of the other grounds of the motion. There was no error in the court’s statement of the contentions on the part of the prosecution. The necessity for knowledge by Stone of the falsity of Green’s testimony was included in the general charge. People v. Clement (Wis.), 86 N. W. 535; Com. v. Devine, 29 N. E. 515. The instructions as to the effect of impeachment were substantially within the provisions of the code. The charge as to reasonable doubt and the certainty of proof required were correct.
Justice Turner did not preside on the ■ argument, but, having taken part in the consideration of the ease, and the seyeral conferences thereon, authorizes the statement that he concurs in the foregoing opinion.
Judgment affirmed.