(dissenting).
If it lay within our power to say that the testimony of one witness is sufficient to sustain a finding of guilt of perjury, the well-reasoned and cogent views expressed by my brother Maris would go a long way toward furnishing ample justification for the enunciation of such a rule. However, it is my opinion that the rule which requires two witnesses or one witness and corroborating circumstances to sustain a finding of guilt of perjury is so firmly imbedded in federal criminal jurisprudence as to require for its alteration a positive legislative declaration to that end. See Hammer v. United States, 271 U.S. 620, at page 627, 46 S.Ct. 603, at page 604, 70 L.Ed. 1180, where the Supreme Court said-that “The absence of such legislation indicates that it [the rule as to the quantum of proof required in perjury cases] is sound and has been found satisfactory in practice.” And, as lately as 1941 in Warszower v. United States, 312 U.S. 342, 347, 348, 61 S.Ct. 603, 606, 85 L.Ed. 876, the Supreme Court said that “* * * evidence of perjury, given by one witness only, does not as a matter of law establish beyond a reasonable doubt the commission of a crime * *
Such being the situation with respect to the proof required in perjury cases, I am unable to accept the view that the disposition made of Goins v. United States, 1939, 306 U.S. 622, 59 S.Ct. 783, 83 L.Ed. 1027, was intended to change the rule so that thereafter one witness alone was sufficient to establish the commission of the crime of perjury.
It is true that in the Goins case the trial judge refused to charge, as requested, with' respect to the proof required to convict-of- perjury and it is also true that the Court of Appeals affirmed the judgment of guilt entered below on the jury’s verdict. But, an examination of the opinion in the Goins case, 99 F.2d 147, 149, discloses that the Court of Appeals deemed it “inconceivable” that the jury could have believed one and rejected the other of two witnesses to the act around which the defendant’s alleged perjury revolved when both witnesses were corroborated by one and the same bit of documentary proof, viz., a hotel registration card signed by the defendant. The Court of Appeals, therefore, concluded that, since the jury must have believed the two witnesses, the trial error in the lower court’s refusal of the requested instruction could not have been prejudicial to the defendant The Supreme Court, in a per curiam opinion, dismissed the writ of certiorari “As it appears on hearing argument that the District Court’s failure to give Instruction B could not have prejudiced the petitioner [defendant] * * The Supreme Court did not, however, pass upon -the possible error involved in the trial court’s refusal to charge, as requested, for which the certiorari had been granted. See 306 U.S. 623, 59 S.Ct. 461, 83 L.Ed. 1028. I think that the Goins case was sufficient unto itself on its own peculiar facts and that the Supreme Court did not intend by *211its dismissal of the certiorari to change the rule as to the proof required to convict of perjury.
The question then is whether the rule is merely quantitative as to the number of witnesses to be produced by the prosecution or must the jury believe two witnesses or one witness and corroborating circumstances before guilt may be found. In his work on Evidence (Third Ed.), Vol. VII, at § 2038, Wigmore says in discussing the proof required 'to support a charge of treason — “(3) The rule of two witnesses means, by reason of the general principle * * * that they must be effective witnesses, i.e., they must both be pelieved by the jury. A rule requiring a certain quantity of evidence is binding upon the jurors as well as upon the judge; they are not to convict unless in their judgment the required amount exists. If the testimony of one is rejected by the jury upon consideration, there remains but one witness, — less than the rule requires.” Nor do I think any distinction is relevantly to be drawn because the requirement as to the quantum of proof in treason cases is constitutionally prescribed. Our present concern is as to when the requirements of the two-witness rule can be said to have been met. That question can just as pertinently arise in a trial for perjury as it can in a trial for treason. The inquiry is whether the jury, in order to convict, must find the evidence credible to the extent of the quantity of proof which the law requires. I think it must. If the answer were otherwise, the rule would prove in practice to be but an empty form.
Why then should a jury not be instructed accordingly in a perjury trial? The credibility of the testimony is ordinarily for the jury to determine and not for the court. But, suppose that the duty of finding the facts in a perjury trial should fall upon the court, because of the defendant’s competent waiver of a jury trial, and, out of all of the evidence offered, the court could find only one credible witness. Will anyone say that, in such circumstances, the court would not forthwith enter a verdict of not guilty? That, I believe, is precisely what a court, sitting without a jury, would do, and it would do it, not because it was not satisfied of the defendant’s guilt beyond a reasonable doubt on the basis of the testimony of the one credible witness but because the law provides that a conviction for perjury may not be had upon the testimony of one witness alone. If a court, because of its knowledge of and regard for the law, would so act in the circumstances, as above supposed, why, then, should the jury not be instructed as to the law by which they, too, should be guided in testing whether the required quantum of credible proof has been produced.
In the instant case the learned trial judge, although he carefully and, I think, correctly instructed the jury on the law pertinent to the facts of the case, failed to make any mention whatsoever of the quantity of credible proof necessary to be found present by the jury before a verdict of guilt could be returned. That, I think, was error, particularly in view of the fact that counsel for the defendant had submitted a request for charge in material regard (see footnote 4 ante) which the trial court had refused. The court was, of course, not required to charge in the language of counsel’s request even though it contained a correct statement of the law. See United States v. Quick, 3 Cir., 128 F.2d 832, 835, and cases there cited. But, the attention of the court having been specifically drawn to the pertinent matter for charge, by counsel’s direct and formal request, it was the duty of the court to tell the jury in effect that, unless they found the alleged perjurious act on the basis of the credible testimony of two witnesses or of .one witness and corroborating circumstances, it was their duty to acquit. United States v. Quick, supra, 128 F.2d at page 835.
Nor may the trial error, thus indicated, be overlooked as not having been prejudicial. The evidentiary situation in the instant case differed materially from that presented in the Goins case. Here, one witness testified in corroboration of the principal witness and two more testified to later admissions by the defendant. If the jury believed none but the principal witness, then their verdict rested on less than what the law requires. That they did believe more than the one witness is not to be inferred from the verdict in the absence of any instruction as to the quantity of proof required for the establishment of the defendant’s guilt.
I should, therefore, reverse the judgment of the District Court and remand the case for new trial.