Points for Defendant.
I.
krhe indictment does not show that the municipal court had jurisdiction over the subject-matter of the libel suit. Kizer v. People, 211 Ill. 407; Maynard v. People, 135 Ill. 425; 2 Bishop’s New Criminal Procedure (4th ed.), see. 910a; Pankey v. People, 2 Ill. 80; 22 Ency. of Law (2d ed.) p. 683; Johnson v. State, 58 Ga. 397; United States v. Jackson, 20 D. C. 424; Renew v. State, 4 S. E. 19; Elkin v. People, 28 N. Y. 177; Franklin v. State, 91 Ga. 712; State v. Furlong, 26 Me. 69; State v. Plummer, 50 Me. 217; People v. Howard, 111 Cal. 655; United States v. Wilcox, Fed. Cas. 16,692; State v. Jenkins, 1 S. E. 437.
II.
It is insufficient to set out the alleged false testimony in substance only. Wilkinson v. People, 226 Ill. 135; Coppack v. State, 36 Ind. 513; State v. Blackstone, 74 Ind. 592.
III.
The deputy clerk of the municipal court has no authority to administer the oath in his own name. He acts as deputy only for and in his principal’s name. Sees. 14 and 15, Municipal Court Act; see. 1, eh. 101, Rev. Stats, of Ill.; United States v. Hall, 21 Pac. 85; Wimbish v. Woolford, 33 Tex. 110; Talbott’s Devisees v. Hooser, 75 Ky. 408; Schott v. Youree, 142 Ill. 233; 13 Cye. 1043; 9 Ency. of Law, p. 381; Village of Auburn v. Goodwin, 128 Ill. 57; Norton v. Colt, 2 Wend. 250; Glencoe v. Edwards, 78 Ill. 382; Ditch v. Edwards, 2 Ill. 127; Ryan v. Eads, 1 Ill. 217; Vol. 3, “Words and Phrases,” pp. 2208 et seq.
IV.
The testimony set forth in count III is immaterial. The cross-examination has reference to matters entirely foreign to the direct examination. Perjury cannot be assigned on cross-examination unless the original testimony is material and the cross-examination affects the credibility of the witness. Kizer v. People, 211 Ill. 407; Wilkinson v. People, 226 Ill. 135; 2 Russell on Crimes (5th Am. from 3rd London ed.), pp. 600 et seq.; Pollard v. People, 69 Ill. 148; Young v. People, 134 Ill. 37; Morrell v. People, 32 Ill. 499; Pankey v. People, 2 Ill. 80; 2 Bishop’s New Criminal Law (8th ed.), see. 1033; 2 Russell on Crimes (5th Am. ed.), p. 642; State v. Budd, 65 Ohio St. 1; Commonwealth v. Pollard, 12 Metc. 225.
V.
The materiality of the testimony as to the impression produced by the libel. 25 Cyc., pp. 502 et seq.
A. In slander cases a witness may be asked as to the impression the words made upon him, or as to the sense in which the words were understood by the hearers. Tottleben v. Blankenship, 58 Ill. App. 47; Foval v. Hallett, 10 Ill. App. 265; McKee v. Ingalls, 4 Scam. 32; Nelson v. Borchenius, 52 Ill. 236.
B. It is not permissible for readers of an alleged libelous article to testify as to its meaning. Gribble v. Pioneer Press Co., 34 N. W. 30; Quinn v. Prudential Ins. Co., 90 N. W. 349; Beardsley v. Maynard, 4 Wend. 337; Rep. Pub. Co. v. Miner, 20 Pac. 345; Hearne v. De Young, 52 Pac. 150; Railway Co. v. McCurdy, 8 Atl. 233; Anderson v. Hart, 27 N. W. 289; Smart v. Blanchard, 42 N. H. 137.
C. If words are not actionable in themselves, the testimony as to their effect or meaning is incompetent. Hamm v. Wickline, 26 Ohio St, 81.
D. Perjury cannot be assigned on cross-examination where. the direct testimony was not material. Wilkinson v. People, supra; 22 Ency. of Law, 687; Stanley v. United States, 33 Pac. 1025.
VI.
The publication is not libelous per se. 25 Cye. 250; Cerveny v. News Co., 139 Ill. 345.
A. An innuendo and colloquium are essential. 25 Cyc. 439, 441; Patterson v. Edwards, 2 Gilm. 720; Strader v. Snyder, 67 Ill. 404; Townsend on Slander & Libel (3rd ed.), pp. 198 et seq.
B. An innuendo cannot enlarge the meaning of words, or make certain that which is uncertain. There must be" an averment of extraneous matter, so that the court can see that the libel is susceptible of the meaning attributed to it. 25 Cyc. 449; Gault v. Babbitt, 1 Ill. App. 130; Brown v. Burnett, 10 Ill. App. 278; Hrrick v. Tribune Co., 108 Ill. App. 244; Patterson v Edwards, 2 Gilm. 720; Strader v Snyder, 67 Ill. 404; Brown v. Brown, 14 Me. 317; Carter v. Andrews, 16 Pick. 1; Weed v. Bibbins, 32 Barb. 315; Railway Co. v. Sheftall, 45 S. E. 687; Wallace v. Homestead, 90 N. W. 835; Kilgour v. Newspaper Co., 53 Atl. 716; Townsend on Slander & Libel (3rd ed.), sees. 308, 335, 336, 337, 338, 341, 342; Van Vechten v. Hopkins, 5 Johns. 210; Moss v. Harwood, 46 S. E. 385; Russell on Crimes (5th Am. ed.), 644, 647; McLaughlin v. Fisher, 136 Ill. 111; McLaughlin v. Schnellbacher 65 Ill. App. 50; Newell on Slander & Libel, sees. 18, 34, 35; Railway Co. v. McCurdy, 8 Atl. 230; 2 Bishop’s New Criminal Proc. (4th ed.) sees. 785, 786, 793, 794; Lanston v. Linotype Co., 147 Fed. 871 (aff. 154 Fed. 42); Ukman v. Daily Record Co., 88 S. W. 60; Kenworthy v. Brown, 92 N. Y. S. 34; Hardness v. News Co., 102 Ill. App. 163; Patterson v. Edwards, 7 Ill. 720; Smith v. Gafford, 33 Ala. 168; Jorallmon v. Pomeroy, 22 N. J. L. 271.
VII.
If the pamphlet was not libelous the testimony given on the trial was not material Rex v. Dunston, R. & M. N. P. R. 109; 21 Eng. C. L. 712; Morrell v. People, 32 Ill. 499; Rex v. Benesech, Peake Add. C. 93; Russell on Crimes (5th Am. ed.), p. 601, 602; Leak v. State, 61 Ark. 599.
Windes, J.(onally) :—
In the Myers case, I heard -arguments all day long and I had to cut off counsel in order to get home Saturday night. I refer to counsel for the defense; I did not cut off the state. That is on that indictment for perjury. I will not attempt to review the innumerable authorities cited to me on the argument of the cause, but I will merely state, as quickly as I can, the conclusions at which I have arrived. Owing to the great pressure of other business, I have not been able to give the full consideration to the case I should have been glad - “to give. Since this argument, I have tried three manslaughter cases and a large number of less important cases.
The statute with regard to perjury reads as follows: “Every person, having taken a lawful oath or made affirmation, in any judicial proceeding, or in any other matter where by law an oath or affirmation is required, who shall swear or affirm wilfully, corruptly and falsely, in a matter material to the issue or point in question, * * * shall be deemed guilty of perjury. * * * ” (Sec. 225, eh. 38, Rev. Stats, of 111.)
The words “material to the issue or point in question” are very important in this ease, though, of course, the statute with regard to the offense is of great importance in every indictment for perjury or subornation of perjury.
There are three counts in this indictment. They all allege that the defendant Myers swore to certain things in substance. The latest expression of the supreme court of this state on this proposition is in the case of Wilkinson v. People, 226 Ill. 135. It seems to me to be a very carefully considered case. The court, in passing upon the sufficiency •of the indictment in that case, at page 140, says:
“All the precedents to which our attention has been called, in a ease like this aver that it became a material matter whether the defendant- made the false statements assigned, ■for perjury in the indictment. We do not regard the averment that the testimony was material to the issue, generally, ns sufficient. Moreover, the so-called second assignment of perjury, and each of those following, as shown above, is, that he, Linder Wilkinson, upon the trial of said indictment aforesaid, then and there further unlawfully, knowingly, wilfully and feloniously testified on a matter material to the issue aforesaid, in substance, etc. There is no averment here that the testimony was corruptly given, which is always necessary in an indictment for perjury. Neither is it sufficient to state the substance of the alleged false testimony.”
That seems to be in conflict with all other decisions of our supreme court, as I construe them, especially Hereford v. People, 197 Ill. 222, 238, but being the later expression of the supreme court, it ought to be followed, and the court in this case uses this language (226 Ill. 135, 141):
“In criminal pleading the highest decree of certainty is-always required.”
The second and third counts of the indictment allege, in. substance, that Myers swore that he did not remember certain things that he was asked about, — the alleged perjured' testimony. I think that what is said by the court of appeals, of New York in People v. Doody, 64 N. E. 807, 172 N. Y. 165, is applicable. I did not read the decison, as I thought it was-in accordance with reason clearly, and counsel on both sides argued it quite at length. While there are decisions — a. number of them — to the contrary, there are none such in this state, I believe, directly to the point, and the decision in that ease appeals to my ideas with regard to perjury.
It is a matter of proof as to whether or not a man remembered a specific thing. A man may get on the stand today and swear that he did not remember certain things material to the issue in question, and it would be shown by a hundred witnesses that he had said two hours before that he did remember all about it. Of course, that is an extremé case, but. insofar as the indictment alleges that he did not remember so-and-so, I think it is good. It is a matter of proof.
The first, .second and third counts of the indictment all fail to allege, in direct terms, that the alleged false testimony was material to the issue in the case that was being-tried. T have read you the section of the statute. It says, “A matter material to the issue or point in question.” There-must be no doubt, I think, from the allegations of the indictment, that the alleged false testimony was material to the issue, and in this last decision to which I have referred, the-Wilkinson ease, the court uses this language (p. 145) :
“It is well understood that in every prosecution for perjury it is essential that the alleged false testimony must have-been material to the issue upon trial. ’ ’
Now, a matter may be material in a suit when not material to the issue. There are numerous authorities to that effect, for instance, on the question of credibility. A matter-may be material, but not material to the issue. Now, the third count alleges — I mean it is claimed that the testimony set up in the third count, which it is alleged was false, was the cross-examination of the witness. Now, it is said that the testimony on the direct examination was not material to the issue. There is some doubt in my mind whether, strictly speaking, it is material to the issue in the libel case, but from a reading of Nelson v. Borchenius, 52 Ill. 236, and Dexter v. Harrison, 146 Ill. 169, 173, and the appellate court cases cited by counsel for the state,1 I think that the testimony there referred to and alleged to be perjury is, in part, material. I think it is material here. Speaking of the person Andrews, with whom he had talked:
“Q. What, if anything, did Andrews say to you?”
Now, that I do not regard material.
"Q. S'tate to the court what impression the reading of it made upon you, as to whether it was intended to charge Robert D. Lay with surreptitiously and wrongfully appropriating from the funds of that company $8,000 in excess of his salary?
“A. It made no such impression.”
Under Nelson v. Borchenius, 52 111. 236, I think that part was material to the issue as to how the libel would be considered. Also this:
“Q. State whether or not, in your opinion, the language used is or is not compatible with perfect honesty on the part of Lay?
"A. Yes.”
That testimony is material, I think, but there is not a word of the cross-examination that relates to that part of the testimony of the witness. Therefore, it is not germane, I think, to the direct testimony, and it could not, for that reason, be assigned as perjury. That is decided in the Wilkinson case, also.
A number of other points were made by counsel in the argument, but it seems to me that they are mostly very technical, and it is not necessary to go into them.
Ftor the reason that I have stated here, that all the counts allege that the testimony which is claimed to be perjury was in substance as follows, and that the testimony set up in the three counts is all cross-examination not germane to the direct, perjury cannot be assigned thereon, and because none of the counts allege clearly and directly that the testimony was material to the issue in the case, I will quash all the • counts of the indictment. i
Tottleben v. Blankenship, 58 Ill. App. 47; Foval n. Hallett, 10 Ill. App. 265. See also McKee v. Ingalls, 4 Scam. 30. — Ed.