I am of strong opinion that the judgment in this case should be reversed. I think so for two reasons.
I. The testimony given by Lamarre before the Senate Committee was presented to the jury upon the trial in so unfair and prejudicial a fashion as to constitute reversible error.
Lamarre testified before the Committee in executive session, only Senators, Mr. William P. Rogers, who was counsel to the Committee, the clerk, the reporter, and the witness being present. An official stenographic record was made of the proceedings. The testimony continued for two days, and the transcript is 315 typewritten pages. When Meyers was indicted, he moved for a copy of the transcript. The United States Attorney opposed, on the ground that the executive proceedings of a Senate Committee are confidential. The court denied Meyers’ motion.
When the trial began, the principal witness called by the Government was Mr. Rogers. He was asked by the United States Attorney, “Now, will you tell the Court and the jury in substance what the testimony was that the defendant Lamarre gave before the Committee concerning the Cadillac automobile?” Two counts of the indictment related to this automobile.
The court at once called counsel to the bench and said to the prosecutor: “Of course, technically, you have the right to proceed the way you are doing. * * * I do not think that is hearsay under the hearsay rule, but it seems to me * * * that, after all, when you have a prosecution based on perjury, and you have a transcript of particular testimony on which the indictment is based, that 'you ought to lay a foundation for it or ought to put the transcript in evidence, instead of proving what the testimony was by someone who happens to be present, who has to depend on his memory as to what was said.”
Counsel-for the defense, objecting, insisted that the procedure was “preposterously unfair”. The trial judge said that it seemed to him that the transcript ought to be made available to defense counsel. That was then done, but the prosecutor insisted upon proceeding as he had planned with the witness.
Mr. Rogers then testified: “I will try to give the substance of the testimony. * * * I am sure your Honor appreciates that I do not remember exactly the substance of the testimony. The substance of testimony was this, * * And then he gave “in substance” the testimony in respect to the Cadillac car. The same process was followed in respect to the matters covered by the other counts of the indictment, i. e., the redecoration of Meyers’ apartment and Meyers’ interest in the Aviation Electric Corporation. Defense counsel reserved part of his cross-examination until he could read the transcript.
*815The notable characteristics of this testimony of Rogers are important. In each instance, the “substance” was a short summation, about half a printed page in length. The witness did not purport to be absolute in his reproduction but merely recited his unrefreshed recollection, and his recollection on each of the three matters bears a striking resemblance to the succinct summations of the indictment. It is obvious that what the witness gave as “substance” was an essence of his own distillation and not an attempt to reproduce the whole of Lamarre’s testimony. There are differences between Rogers’ recollection and the transcript which are vital in the case.
The foregoing was on Wednesday, February 25th, the second day of the trial. On Tuesday, March 9th, which was two weeks later and the eleventh day of the trial, the Government, as it was about to close its case, offered the whole transcript of Lamarre’s testimony in evidence as an exhibit, and it was received without objection. The prosecutor and one of his assistants then read to the jury such portions of the transcript as they deemed material. Defense counsel then read the portions which they deemed material.
Upon the reserved cross-examination of Rogers, the following occurred:
“Q. Is it not a fact that nowhere in his testimony did the defendant Lamarre on October 4th or 6th, 1947, testify that Bennett E. Meyers was not financially interested in or connected with the Aviation Electric Corporation ? A. I don’t think he ever used those words.
“Q. Is it not a fact that all of his testimony, taken as a whole, negatives such an interpretation ?
“Mr. Fay: I think that is purely a question of law.
“The Court: Objection sustained, I do not think that is proper cross-examination.”
Defense counsel inquired of Rogers if it were not a fact that “the substance of Lamarre’s testimony with reference to the Cadillac car” was so-and-so. The court interrupted and said that counsel was asking the witness “to construe” Lamarre’s testimony and that since the jury had heard the testimony read it would have to determine what its meaning was. Counsel for the defense agreed with that proposition and moved to strike all of Rogers’ direct testimony as to what Lamarre’s testimony had been. The court denied the motion, saying that Rogers had not, on direct, been “interpreting” Lamarre but had stated “the substance”, which the court said “is an entirely different thing”. Rogers then answered as to his “recollection”, commenting, “I stated at the outset it is just my recollection.” He repeated that comment in effect several times. Finally counsel asked a specific question as to Lamarre’s use of the word “gift” (which we note was the key word in Count Five), and the prosecutor objected on the ground that “the record [i. e., the transcript] speaks for itself”. The court sustained the objection. A similar question was then asked, objected to, and the objection sustained. Thereupon counsel dropped that line of examination.
To my mind, the foregoing procedure was, as defense counsel characterized it, “preposterously unfair”. It lacked the minimum elements of fair play essential to our concept of a fair trial. I reach my conclusion upon both practical and theoretical considerations. The problem has both aspects.
The practical elements are these: The transcript showed exactly what Lamarre told the Committee, word for word. But the words and expressions charged to him by the indictment do not appear in the transcript. Whether he testified as alleged, whether he said what is alleged to be the truth, or whether he said what is alleged to be false, were matters of inference, or conclusion, or summation, or “substance”, to be gathered from his answers to many questions. Mr. Rogers was the counsel who interrogated Lamarre before the Committee. The Committee was the actual complainant in the perjury charge. Rogers was its representative.
Thus, the sum of the practical aspect of the matter is that the prosecutor put to the jury at the opening of his case, out of the mouth of the complainant, under oath and on the stand, the complainant’s interpretation of the alleged perjured testimony, translating it into approximately what the indictment attributed to the alleged per*816jurer. I need not elaborate the tremendous advantage thus gained by the Government, an advantage later magnified by what occurred on attempted cross-examination.
The difference between the presentation of elemental facts and the piecing of them together so as to reach a conclusion is basic.1 One is evidence and the other argument. The principle runs through much of the law of evidence.
I doubt that anyone would say that the prosecutor could first have put into evidence the transcript of Lamarre’s testimony and thereafter have produced Rogers to give tó the jury from the witness box his own summation of it. He would have been met with a ruling that “the transcript speaks for itself”. Indeed, exactly that developed. The prosecutor first produced the oral summation, and it was admitted. Then he produced the transcript. Then, when defense counsel attempted to cross-examine as to “the substance”, he was blocked because of the presence of the transcript. Can a prosecutor do by so simple and obvious a maneuver that which the law otherwise forbids as unfair ? Can he thus transform into sworn evidence from the box that which is otherwise only argument from the rail? I do not think so. In the presence of the unimpeached transcript, even though it was temporarily on counsel table and not yet in the clerk’s hands, summation and interpretation was argument and not evidence.
Nor was the prejudice cured by the availability of the transcript to defense counsel for cross-examination. If that were so in this case, the same doctrine would admit in evidence any opinion, or description, or summation of elemental facts otherwise provable in precise accuracy. The impression given by a succinct summation by a live witness on the stand cannot be correct-
ed or offset by the later reading of a long, cold record. It is my view that for this exceedingly practical reason the reception of Rogers’ summation in evidence was not permissible.
From the theoretical viewpoint, I realize that there is a line of authority that (absent or incompetent the original witness) a bystander who hears testimony or other conversation may testify as to what was said, even though there be a stenographic report.2 And there is a line of cases which holds that a stenographic transcript is not the best evidence of what was said.3 There is also a legal cliche that the best' evidence rule applies only to documentary evidence.4 The trial judge in this case was confronted with that authority, and a trial court is probably not the place to inaugurate a ne .v line of authority. But I do not know why an appellate court should perpetuate a rule clearly outmoded by scientific development. I know that courts are reluctant to do so.5 I recognize the view that such matters should be left to Congress. But rules of evidence were originally judge-made and are an essential part of the judicial function. I know of no reason why the judicial branch of Government should abdicate to the legislative branch so important a part of its responsibility.
I am of opinion, and quite ready to hold, that the rules of evidence reflected by the cases to which I have just referred are outmoded and at variance with known fact, and that the courts ought to establish a new and correct rule. The rationale of the so-called “best evidence rule” requires that a party having available evidence which is relatively certain may not submit evidence which is far less certain. The law is concerned with the true fact, and with that alone; its procedures are directed to that *817objective, and to that alone. It should permit no procedure the sole use of which is to obscure and confuse that which is otherwise plain and certain.
We need not venture into full discussion of all the principles involved.6 As between two observers of an event, the law will not accept the evidence of one and exclude that of the other, because the law cannot say which is more accurate. But as between a document itself and a description of it, the law accepts the former and excludes the latter, because the former is certain and the latter is subject to many frailties. So as 'between the recollection of the parties to a contract evidenced by a writing and the writing itself, the law rejects the former and accepts the latter. To be sure, the writing may be attacked for forgery, alteration or some such circumstance. But absent such impeachment, the writing is immutable evidence from the date of the event, whereas human recollection is subject to many infirmities and human recitation is subject to the vices of prejudice and interest. Presented with that choice, the law accepts the certain and rejects the uncertain. The repeated statement in cases and elsewhere that the best evidence rule applies only to documents is a description of practice and not a pronouncement of principle. The principle is that as between human recollections the law makes no conclusive choice; it makes a conclusive choice only as between evidence which is certain and that which is uncertain.
It may be remarked at this point that the transcript in the case at bar is a document, not challenged for inaccuracy or alteration. It possesses every characteristic which the most literal devotee of established rules of evidence could ascribe to written evidence of a contract as justification for preference of such writing over the recollection of the parties.
In my view, the court iterates an error when it says that the best evidence rule is limited to cases where the contents of a writing are to be proved. The purpose of offering in evidence a “written contract” is not to prove the contents of the writing. The writing is not the contract; it is merely evidence of the contract. The contract itself is the agreement between the parties. Statutes such as the statute of frauds do not provide that a contract be in writing; they provide that the contract be evidenced by a writing, or that a written memorandum of it be made. The writing is offered as evidence of an agreement, not for the purpose of proving its own contents. A deed to real estate is different, being actually the instrument of conveyance, although there is authority that it too is merely evidence of the agreement between the parties.
The doctrine that stenographic notes are not the best evidence of testimony was established when stenography was not an accurate science. The basis for the decisions is succinctly stated in the 1892 case quoted as leading by Professor Wigmore: “Stenographers are no more infallible than any other human beings, and while as a rule they may be accurate, intelligent, and honest, they are not always so; and therefore it will not do to lay down as a rule that the stenographer’s notes when translated by him are the best evidence of what a witness has said, in such a sense as to exclude the testimony of an intelligent bystander who has heard and paid particular attention to the testimony of the witness.” 7
But we have before us no such situation. Stenographic reporting has become highly developed, and official stenographic reports are relied upon in many of the most important affairs of life. Even as early as 1909, a court referred to “Experience having demonstrated the impartiality and almost absolute accuracy of the notes of court stenographers” as. the reason for legislation making admissible as evidence a court stenographer’s report.8 In the present instance, at least, no one has disputed the correctness of the transcript.
From the theoretical point of view, the case poses this question: Given both (1) an accurate stenographic transcription of a *818witness’ testimony during a two-day hearing and (2) the recollection of one of the complainants as to the substance of that testimony, is the latter admissible as evidence in a trial of the witness for perjury? I think not. To say that it is, is to apply a meaningless formula and ignore crystal-clear actualities. The transcript is, as a matter of simple, indisputable fact, the best evidence. The principle and not the rote of the law ought to be applied.
I do not suggest that a stenographer’s report is unimpeachable; that question is not here.
I find some support for my view in the authorities. As early as 1878 the Supreme Court, in ruling upon the problem, seemed to qualify the traditional view. It said that “Where a stenographer has not been employed, it can rarely happen that anyone can testify to more than the substance of what was testified * * (Italics supplied.)9 And Volume 2, Section 693, of Wharton’s Criminal Evidence, after discussing the cases, has this to say: “However, since it is a primary rule of evidence that the best evidence must be produced, it would seem that since practically all testimony is now taken by stenographers, a transcript of the stenographer’s notes would he the best evidence, and that oral evidence would not be admissible when such transcript could be obtained.” And there is authority to the effect that even where a witness is permitted to give the substance of prior testimony of another, he must reproduce as accurately as he can the whole of that testimony and cannot give merely his own summation.10
II. The proof did not establish that Lamarre told the Senate Committee what the indictment, in the first count, says he did, and it established that he told the Committee what the third and fifth counts say is the truth. What Lamarre told the Committee was, of course, the first factual question in the prosecution, and thus in the defense, of Meyers.
The indictment charged that Lamarre made three specific false statements to the Senate Committee.
I take it as elementary that an indictment must allege the commission of an act and not mere rascality; that the offensive act must be alleged with precision, clarity and certainty; that upon the trial the Government must prove the commission of the act alleged, and that no other misdeed, however proved, will support conviction; and that an accused need defend against no proof except that of the act alleged. The issue now before us cannot be resolved correctly, or indeed even understood, unless we first note with attentive care exactly what this indictment says Lamarre told the Senate Committee.
The first count of the indictment charged that Lamarre testified falsely that “Meyers was not financially interested in or connected with the Aviation Electric Corporation of Dayton and Vandalia, Ohio, during those years [i. e., 1940, 1941, 1942, 1943, 1944, 1945, 1946 or 1947] or any of them”.
That is a very specific, precise charge. Also it is quite clear and easily understood. It relates to financial interest or connection of any sort on the part of Meyers in or with the corporation. It relates to any one of the years 1940-47. Conviction required the Government to prove the allegation as made. Conversely, Meyers was called upon to defend against-the allegation made, and none other.
First, we note that Lamarre never made the direct assertion in the language the indictment recites. No one claims that he did. As we have already noted, Mr. Rogers testified, “I don’t think he ever used those words.” And when asked, in reference to finances, “So that Lamarre did not say, in summary, as you understood it, that Meyers had no connection with the company ?” Mr. Rogers replied, “I never said he said that.”
Second, we note that Lamarre repeatedly testified to the precise contrary of what the indictment charged he said. Financial interest in or connection with a corporation is of two principal sorts, owner and creditor. Lamarre testified that Meyers had both. He told the Committee that Meyers put up all the money for the stock upon the incorporation. He identified the original book *819entry which showed Meyers as the sole original stockholder. He said that the named incorporators were “dummies”. He said that when the stock was transferred on the records to him (Lamarre), he endorsed it in blank and left it at the company office where Meyers had access to it. He also testified that Meyers put up any money which the corporation needed and that Meyers was the sole creditor of the corporation. He even testified flatly, as follows:
Q. “That [the stock transfer to Lamarre] was just a bookkeeping transaction, and you held the stock and then you endorsed them over to Meyers and he took the certificates, is that correct ? -
“Mr. Lamarre: Yes.
“[Q.] So you understood all of the time that for all practical purposes he owned the business, did you not ?
“Mr. Lamarre: That is right.
“[Q.] He put all of the money in and he owned all of the stock?
“Mr. Lamarre: That is right.”
And again the record shows:
Q. “In other words, without any payment on your part, and he [Meyers] made the arrangement that you were to endorse them in blank and he would take possession of them, is that correct?
“Mr. Lamarre: Yes.”
And again Lamarre testified: “Of course, as I said, the company actually had no money; it was borrowed from General Meyers.”
He testified that at the end of 1941 the corporation owed Meyers $30,000, and he identified a list which showed that Meyers advanced $58,310 to the corporation, of which amount $20,000 was advanced in 1942.
The very first questions by defense counsel upon the cross-examination of the witness Rogers at the trial developed the nub of the matter:
“Q. Mr. Rogers, did I understand you to say that Lamarre testified that he or General Meyers, for all practical purposes, owned the stock, owned the company: Aviation Electric? A. Well, he said both ways. He said he was the owner of the stock—
“Q. Yes? A. — but he said, when we pressed him with questions, in view of the fact that Meyers had put up all the money and had given the stock in the company, for all practical ■ purposes Meyers was the owner.
“Q. So that actually, as the testimony was left, he didn’t deny that Meyers was, in that sense at least, interested in the company? A. No.
“Q. And in that sense at least financially interested in the company? A. That is right.
“Q. And he did not deny or state falsely in that sense that Meyers was connected with the company? A. No.”
It is impractical to quote in this opinion the whole of the testimony upon the point. But to my mind the record of what Lamarre told the Senate Committee conclusively shows that he made perfectly clear to the Committee, by repeated and unequivocal statements, that Meyers was the originator and first sole stockholder of the corporation; that when the stock was transferred on the record to him (Lamarre), he was merely a record holder, having paid nothing for the stock and having endorsed the certificate in blank and left it physically available to Meyers; that Meyers was the sole financial backer of the company, and that during the years 1940-42 Meyers was a creditor of the corporation in large amounts, his loans evidenced by notes and secured by pledge of all the stock. Throughout his testimony there was no intimation that the corporation had any financial support of any sort except that of Meyers. Lamarre made many statements and representations which the record may indicate were false and which he later repudiated. But he did not, as best I can read the record, even suggest that Meyers had no financial interest in or connection with the corporation in any of the years 1940-47. And that is what the indictment says he told the Committee, and that is what the Government had to prove in order to sustain conviction.
I do not agree with the court that appellant’s contention in this connection is based upon one question and answer. As I understand it, the contention is based upon the *820whole of Lamarre’s testimony before the Committee, upon many questions and answers. Certáinly my conclusion is.
Neither do I agree with the court’s view that if Meyers’ interest in the corporation during any of the years named be established, the conviction must be sustained. Lamarre is alleged by the indictment to have told the Committee that Meyers had no interest in the corporation during the years 1940, 1941, 1942, 1943, 1944, 1945, 1946, 1947, or any of them. The Government had to prove that Lamarre made that statement. If Lamarre told the Committee that Meyers had an interest during three of the eight years named, he did not say what the indictment says he said. Upon such proof, conviction under the indictment as drawn could not stand. We cannot rewrite the indictment so as to allege that Lamarre said something else. It is perfectly true that if Lamarre made the statement ascribed to him by the indictment, and if it were proved that Meyers had an interest in any one of those years, Lamarre’s perjury would be established. Therein lies the confusion. It seems to me that the court is thinking about the proof necessary to establish the falsity of the statement recited in the indictment, whereas the question under consideration at this point is the proof necessary to establish that Lamarre made the alleged statement. This particular question is not “Was the alleged statement false?” The question is “Did Lamarre malee the alleged statement?” It seems plain to me that if, as the court finds, Lamarre asserted and never denied Meyers’ interest in some of the years 1940-47, he did not state that Meyers had no interest in any of those years. The Government has simply failed to prove one of the essentials of its case under the indictment as drawn.
In the third place, in respect to this count, everybody agrees that Lamarre made it clear to the Committee that Meyers was a creditor of the corporation in large amounts during the years 1940, 1941 and 1942; that, in fact, he supplied all the money the corporation needed when it was in need. Upon the trial below, the insistence of the witness Rogers was that Lamarre told the Committee that Meyers was not financially interested “except as a creditor”. The same exception runs through every claim in the Government’s brief before us. The opinion of the court recites that “Meyers advanced considerable sums for working capital and took therefor the company’s promissory notes which were secured by the pledge and delivery to him of the certificates evidencing all its capital stock” and that “by the end of 1942 all Meyers’ loans had been repaid.” The court finds and recites that Lamarre insisted that the stock “did not belong to Meyers all the time but actually became his [Lamarre’s] when the notes were paid.” The notes were paid at the end of 1942. So the court’s view of Lamarre’s testimony is that'Meyers owned the stock in 1940, 1941 and 1942. The court says that Lamarre tried to persuade the Committee that Meyers bore to the corporation “merely the relation of creditor”; and the court concludes from the evidence as a whole that Meyers had no interest “except that he was a creditor and held the capital stock as collateral".
The unspoken major premise to the Government’s contention and the court’s position is that a creditor upon a promissory note of a corporation and pledgee of all its capital stock has no financial interest in or connection with the corporation. I cannot agree with that proposition. Of course, the term “interest in” has many meanings, some of them narrow and technical. But we are not construing a statute, and, moreover, the whole expression before us is “interested in or connected with”. We are examining an allegation in an indictment which purports to recite what a witness said on the stand in a congressional hearing. The indictment recites that his testimony was that a certain person had no financial interest in or connection with a corporation. The witness actually said that the person was a substantial and secured creditor of the corporation. The witness may have been guilty of perjury, but he clearly was not guilty of the perjury charged by the indictment.
The second charge against Meyers (Count Three of the indictment) related to a Cadillac automobile. The charge was premised upon allegations in the indictment that “The fact was, as Blériot H. Lamarre then knew, that that automobile had been *821purchased for the personal use of Bennett E. Meyers. Blériot H. Lamarre nevertheless wilfully and contrary to his said oath testified falsely * * * that that Cadillac automobile had been purchased for the Aviation Electric Corporation and for the use of the Aviation Electric Corporation.”
Thus, the indictment recites, first, what the truth was and, second, what Lamarre told the Committee. Again we must note with care exactly what the indictment charged. The critical question posed by its allegations was: For whose use was the car purchased? According to the indictment, it was perjury to say that the purchase was “for the use” of the corporation because in truth it was “for the personal .use” of Meyers.
The testimony of Lamarre relating to the automobile is comparatively short. It came near the end of the second day of his testimony. He made no direct statement to the Committee as to whose use the car was purchased for. His meaning in that respect is a matter of inference. What he said was that the company had one car, a Cadillac, purchased from the Capitol Cadillac Company in Washington, where Meyers lived (the corporation was in Dayton and Vandalia, Ohio); that Meyers picked out the car, bought it and took delivery on it; that Mey.ers had access to it; that Meyers had the "keys to it; that the car remained in Washington; that Meyers kept it in his garage; :that the car was bought and titled in the .company name; that he (Lamarre) was the .only officer in the company who had access •to the car; that Meyers made arrangements rto get the insurance; that the car was insured in Washington; that the car cost $3,-¡000 and was sold to Meyers’ father-in-law •for $1,400; that it was sold because “We ; had no further use for it”; that they “had •not had too much use for it.” None of • these elemental facts has been disputed; as to them Lamarre testified truthfully before the Committee.
The contention of the Government and the holding of the court is that this factual testimony is so positive to the effect that the car was purchased “for the use of the Aviation Electric Corporation” as to make it perjury, since the fact was that the purchase was “for the personal use” of Meyers.
I have some difficulty in drawing a clear line between purchases of cars for the use of a corporation and purchases of cars by a corporation for the personal use of an officer, or sole stockholder, or sole creditor. Frequently, it seems to me, the use of the officer, stockholder or creditor is, in many senses, a use of the corporation. At any rate, it is frequently so considered in business circles. Be that as it may, I cannot find in Lamarre’s testimony a distinction between company use and Meyers’ personal use so clear and sharp as to constitute one a perjury when the other is the fact. Lamarre certainly told the Committee that Meyers selected the car, arranged for its purchase, bought it in Washington, kept it in his garage in Washington (the company being located in Ohio), had the keys, and arranged for the insurance. To my mind, it is a logical and fairly obvious conclusion from that testimony that the car was purchased for Meyers’ use. It seems to me that what the indictment recites as the truth is as fair an inference as any other from Lamarre’s actual testimony.
The Government and the court put much stress upon Lamarre’s reference to the car as the “Company car” and to his having driven it once from Ohio to Washington. But those scraps of testimony are not, to my mind, an affirmation that the car was purchased for the use of the company and not of Meyers.
I can find in Lamarre’s testimony no clear inference that the car was purchased for the use of the corporation in critical contradistinction to a purchase for the use of Meyers. Unless his testimony was clear in that difference, conviction upon this indictment, as drawn, cannot be sustained. One is perjury, the other truth, the indictment says. Unless he said one and not the other, prosecution for this perjury fails.
The problem posed by this phase of the case is not that presented when a witness swears both truthfully and falsely in the same testimony. That' witness may be guilty of perjury in that part of his testimony which is false, even though on other matters he testifies truthfully, and even though he recants that which is false. In the case at bar, Lamarre testified to a number of simple facts about the car, all of *822which facts are admittedly true. The question is: Did he thereby convey a false impression ? If what he actually said fits what the indictment says was the truth of the transaction, he is not guilty of perjury. In other words, in my view, if either of two impressions, one true and the other false, can be gathered from a true recitation of elemental facts, conviction for perjury fails.
The third count of the indictment charged that Lamarre, knowing that “the cost of redecorating the apartment of Bennett E. Meyers * * * had been paid for out of the funds of the Aviation Electric Corporation”, testified falsely before the Senate Committee that the cost of the redecoration “was a gift from himself, Blériot H. Lamarre.”
Again we must note with care what the indictment says. It makes the difference between “paid for out of the funds of” the corporation and “a gift from himself” the difference between truth and perjury. I have some doubt as to the validity of the count because of its vagueness; the payment might be correctly described by both the expressions used. But my dissent does not arise from that view.
Lamarre clearly, emphatically and in complete detail testified before the Committee that the cost of redecorating Meyers’ apartment was paid for out of the funds of the corporation. No one disputes that literal fact. He said that the 'bills were paid by corporation checks, drawn on corporation bank accounts, and first charged as sales expenses on the corporate books. He identified the corporate checks. In all these respects he testified to what was the literal, actual truth, and no one has since alleged otherwise. So far there is, and can be, no dispute but that he testified to what the indictment says was the truth.
The difficulty arises because it is alleged that Lamarre falsely characterized the transaction as a gift from himself to Meyers.
Lamarre told the Committee that the cost of redecorating Meyers’ apartment ($10,-000), having first been charged on the corporate books as a business expense, was later removed from that account and entered as a charge against his own salary account. His statements in these respects were true; that was exactly what was done. The real issue of truth or falsity revolves about the salary account itself. The Government says that the account was spurious, that Meyers was the owner of the corporation, that Lamarre never had any such salary, and that the account was merely a device for siphoning profits to Meyers. But the indictment does not raise that issue. We cannot rewrite the indictment to charge that whereas the truth was that Meyers owned the corporation and all its profits, including what was charged as Lamarre’s salary, Lamarre falsely represented that the salary credited to him was his own and that charges against it were gifts by him.
Much is made of the word “gift”. The facts as shown by the record are quite simple. When Lamarre appeared before the Committee, he was interrogated at length throughout the morning concerning his and the corporation’s relationship with Meyers, during the course of which much discussion was had of “gifts” from Lamarre to Meyers and from Meyers to Lamarre. The decorating of the apartment was not mentioned. After the luncheon recess, Lamarre said: “There is one thing I would like to say before we proceed. That is, you laid a great deal of stress this morning on what you called gifts to General Meyers. I would like to amplify my statements on that, because at the time I did not consider it a gift, but it was after General Meyers had come to Washington, he had an apartment decorated, and I paid for the decoration of that apartment, and the furnishings.” Throughout that afternoon and the next morning, Lamarre was questioned at great length and in great detail concerning this transaction. He identified the checks and explained at great length the book entries, and repeatedly reasserted his claim that he caused this payment because of what Meyers had done for him. Until almost the close of this interrogation, the expression “gift” was not used. Then the following occurred:
“Mr. Rogers: What do you consider this $10,000 now, and I am not talking about Saturday morning or Saturday afternoon; I am speaking now about now; what do you consider this $10,000 was ?
*823“Mr. Lamarre: As I said, it was pretty much, I considered it a moral obligation on my part to do something for General Meyers because of the things he had done for me.
“Mr. Rogers: Look, you are a college graduate and president of the corporation. You understand what I mean. Was this $10,000 a repayment for a loan to General Meyers ?
“Mr. Lamarre: No, it was not.
“Mr. Rogers: Was it part of any business deal at all?
“Mr. Lamarre: No.
“Mr. Rogers: And it had no consideration.
“Mr. Lamarre: No.
“Mr. Rogers: No legal consideration, so it must have been a gift, is that right ?
“Mr. Lamarre: It could have been considered a gift. ■
“Mr. Rogers: I do not know what it could be; what was it ?
“Mr. Lamarre: I told you how I felt about it.
“Senator Cain: Let me ask one question. What could it possibly be considered if it ■was not an outright gift for you said you ■wanted to do something for General Meyers. .
“Mr. Lamarre: That is right. In a legal sense, it undoubtedly would be a gift.
“Senator Cain: In what other sense ■would it be anything other than a gift or a present or a gratuity to a friend ?
“Mr. Lamarre: In my own personal feelings about it, it was that it was, I was sort ■of obliged to do that for him, or I wanted to ■do it for him because of the things that he '.had done for me.
Senator Cain: But the transaction m itself has absolutely nothing to do with your corporation business?
“Mr. Lamarre: That is correct.
“Senator Cain: It happens to have been paid from the corporation?
“Mr. Lamarre: That is correct.
“Senator Cain: But that was never your thought or intention; it was your personal obligation by personal wish to a personal friend?
“Mr. Lamarre:. That is correct.”
Upon this record Lamarre’s use of the expression “gift” plays little part in the question of perjury. Lamarre did not urge that expression upon the Committee. He testified to the constituent factual elements of the transaction. “Gift” was merely an inference, or characterization, which his interlocutors attempted, with limited success, to put into his mouth.
It is my view that upon examination of the official stenographic transcript of what Lamarre said to t-he Senate Committee, the trial court should have directed a verdict of acquittal upon this indictment. The basic issue presented by the defense was whether Lamarre said what the indictment alleged that he said. The issue was not what Lamarre said generally or in other respects. In each of the three instances, the stenographic transcript showed that he told the Committee what the indictment alleged to be the true fact; not only by a separate chance phrase but by the whole purport of his testimony. That he perjured himself in other respects is irrelevant in this prosecution.
I dissent from the decision of the court, because it seems to me to be a departure from the basic principle that conviction can be had only upon proof of the acts alleged in the indictment.
I use some of the words of Section 1 of Chapter I of Wigmore on Evidence, and refer to that authority for a discussion of the subject.
Johnson v. Umsted, 8 Cir., 1933, 64 F.2d 316; Weinhandler v. Eastern Brewing Co., 1905, 46 Misc. 584, 92 N.Y.S. 792; State v. Ortego, 1945, 22 Wash.2d 552, 157 P.2d 320, 159 A.L.R. 1232.
Cooper v. Hoeglund, 1946, 221 Minn. 446, 22 N.W.2d 450; McColgan v. Noble, Mo.App., St. Louis., 1930, 29 S.W.2d 205; Brice v. Miller, 1892, 35 S.C. 537, 15 S.E. 272; Pressley v. State, 1921, 18 Ala.App. 40, 88 So. 291. See cases collected at 15 A.L.R. 544 (1921); 122 A.L.R. 436 (1939); 159 A.L.R. 1250 (1945).
Wuerth v. Frohlich, 1930, 251 Mich. 701, 232 N.W. 373; Carroll v. Gimbel Bros., 1st Dept. 1921, 195 App.Div. 444, 186 N.Y.S. 737; Pecoraro v. Pecoraro, 1932, 105 Pa.Super. 543, 161 A. 591.
Read United States v. Provident Trust Co., 1934, 291 U.S. 272, 54 S.Ct. 389, 78 L.Ed. 793.
See 4 Wigmore, Evidence, § 1173 et seq. (3d ed. 1940), and the many cases there cited.
4 Wigmore, Evidence, § 1330 (3d Ed. 1940), quoting McIver, O. J., in Brice v. Miller, 1892, 35 S.C. 537, 549, 15 S.E. 272.
Wilmoth v. Wheaton, 81 Kan. 29, 105 P. 39.
Ruch v. Rock Island, 97 U.S. 693, 24 L.Ed. 1101.
See discussion and cases at 15 A.L.R. 548 et seq. (1921) and at 79 A.L.R. 1410 et seq. (1932).