Treece v. People

Mr. Justice Holland

delivered the opinion of theconrt.

May 4, 1934, in the district court of the City and County of Denver, after objections made at the beginning of the trial to- the introduction of any testimony; objections to the testimony of each witness; and after motions to strike the testimony of each witness and motion for a directed verdict, all of which were overruled, the defendant J. Dale Treece was convicted of perjury and sentenced to serve a term of 18 months to two years in the state penitentiary on the following indictment, which had been theretofore returned by a Denver grand jury:

“That J. Dale Treece, on, to-wit: the twenty-eighth day of February, A. D. 1934, * * * appeared as a witness before the Grand Jury of the City and County of Denver, State of Colorado, which Was then and there-regularly called, chosen, selected and sworn, and in regular session in a judicial inquiry and proceeding then and there pending before said Grand Jury, and- after having been duly sworn in such judicial inquiry and proceeding by Richard L. Fisher, Foreman of said Grand Jury, and who was competent and authorized to administer oaths; that the evidence which he the said J. Dale Treece should give in such judicial inquiry and proceeding touching the matters in question should be the truth, the whole truth and nothing but the truth, did commit the crime of perjury by wilfully, knowingly, corruptly, falsely and feloniously, swearing falsely and giving false testimony in said judicial proceedings in regard to matters which were material to the issues and points in question in such judicial proceedings, to this, to-wit:”

Then follows a statement of Treece’s testimony, alleged to have been false; namely, that Treece testified that he “had never donated, delivered or turned over to one James W. Furlong, seventeen hundred dollars in money * * * at any time or any place ’ ’; that he ‘ ‘ did not agree with James W. Furlong, and other persons whose names to the grand jury are unknown, to raise and collect certain sum or sums of money and did not donate any said sum or sums; of money to be delivered to the said James W. Furlong for the purpose of providing a defense fund or other fund, the name of which to the grand jury is unknown, said fund to be used and expended with members of the State Legislature of the State of Colorado”; that he “had taken no part, and had done no thing or things towards the raising of a defense fund or other fund, the name of which is to the grand jury unknown”; and that he “never raised, attempted to raise, or take any part in the raising of a so-called defense fund and other fund, the name of which is to the grand jury unknown.”

Motion for a new trial was overruled and motion in arrest of judgment was unavailing.

The sole defense was, and now is, that the indictment was insufficient to charge perjury, in that it did not allege the subject or nature of the inquiry which was before the grand jury at the time defendant gave the alleged false testimony. He first made this objection after the jury was sworn and witness called, and contended then, and now contends, that the following statutes require that the substance of the offense be set forth:

Section 6776, Compiled Laws of 1921: “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, or shall suborn any other person to swear or affirm as aforesaid, shall be deemed guilty of perjury or subornation of perjury, as the case may be, and upon conviction thereof shall be punished by confinement) in the penitentiary for a term not less than one year nor more than fourteen years.”

Section 6779, Compiled Laws of 1921: “In every indictment for perjury or subornation of perjury it shall be sufficient to set forth the substance of the offense charged upon the defendant, and before what court or authority the oath or affirmation was taken, averring such court or authority to have had full power to administer the same, together with the proper averment or averments to falsify the matter or matters wherein the perjury is assigned, without setting forth any part of the record or proceeding's either in law or equity other than as aforesaid, and without setting forth the commission or authority of the court or other authority before whom the perjury was committed, or the form of the oath or affirmation or the manner of administering the same.”

It is well settled in this jurisdiction that if the indictment is defective merely in matters of form, then the objections thereto must be made previous to trial, but if, as claimed here, an essential ingredient of an offense is omitted, advantage thereof may be taken at any stage of the proceeding and as late as a motion in arrest of judgment after sentence. Tracy v. People, 65 Colo. 226, 176 Pac. 280; People v. Fontuccio, 73 Colo. 288, 215 Pac. 145.

When subjected to a trial on an indictment for perjury alleged to have been committed before a grand jury when it was inquiring into an issue or point in question, the defendant is entitled to be advised by the indictment, what the issue is, or as to the nature of the point in question, so that he may prepare himself to show, if he can, that though the testimony be false, it was not material; therefore the issue or point in question, and the matter under inquiry, must be stated. “The point in question,” as stated in the statute, relates to the subject matter of the investigation and not to a particular question ashed or answered.

There is abundant authority to serve as a guide in preparing an indictment for perjury committed before a grand jury, and which establishes the proposition that it should set forth the subject matter of the investigation in which the alleged false testimony was given. 48 C. J. 870; 2 Wharton’s Criminal Law (12th Ed.), p. 1815.

In the case under consideration, the averment of any fact, which would shed any light as to the nature of what was being investigated by the grand jury, is glaringly absent. Facts, not conclusions, must be averred. From the facts appearing on the face of the indictment, the court must determine, as a matter of law, whether or not "the alleged false testimony is material to the issue. This cannot be done where no such statement of fact appears. In the case of Stonebraker v. People, 89 Colo. 550, 4 P. (2d) 915, this court determined the materiality of the alleged! false testimony, and it was able to do so because the charge specifically set out the nature of the proceedings wherein such occurred. In all the Colorado cases dealing with perjury, wherein the indictment is set out, the specific nature of the issue or subject of investigation is affirmatively pleaded. The people place much reliance on the case of Thompson v. People, 26 Colo. 496, 59 Pac. 51, which may be said to be the leading Colorado case on perjury. This case is to be distinguished because there, the contention was made that the information was defective in that it did not appear by express averment, or statement of facts from which it might be presumed, that the court had jurisdiction of the case being tried, and because it did not set forth in what manner the testimony of defendant Thompson was material to the issue. The information in the Thompson case contained these words: “And at and upon the trial of the issue so joined between the parties aforesaid, it then and there became and was a material question whether upon the evening of August 11th, 1897, after the shooting of one A. F. Meyers by the said J. H. Cremar, and while the said J. H. Cremar was leading the said A. F. Meyers from the store in which the said shooting had occurred, and upon the sidewalk in front thereof, the said A. F. Meyers handed to any one a pistol or revolver of any kind, saying at the time ‘take this’ ”; that Thompson swore that at the specified time and place, he “saw the said A. F. Meyers hand to some one a blue barreled pistol, saying at the time, ‘take this’; whereas in truth and in fact the said A. F. Meyers * * * did not hand to anyone a blue barreled pistol * * or weapon of any kind.” This court said, “Nor is the information defective because of the failure to set forth how or in what way the evidence alleged to be false was material to the issue,” also, “It is well settled that it is sufficient if its materiality appears either from the facts alleged, or by direct averment.” This is a recognition of the necessity that an issue be stated. Materiality, cannot appear or be determined from the bare averment that it is material. In the case at bar, the question is not as to in what manner the evidence was material, but the failure of the indictment to in anyway reveal the nature of the “issue or point in question.” This is a matter of substance and not of form, it is the opposite of form, and goes to the merits of the case, and as such the question could be raised at any stage of the proceedings. Magee v. People, 79 Colo. 328, 245 Pac. 708.

Even though it could be said that no substantial right of the defendant herein was prejudiced, we should not be called upon to approve, as good pleading,.an indictment so loosely drawn, when reference, without study, to the wealth of existing authorities, would have shown that there must be a compliance with certain essential requirements. Such an approval could lead to great abuse. It might be wholesome law that deliberate false swearing before any court or jury would be deemed perjury regardless of the question of materiality, but our Legislature has not so declared, and not being endowed with legislative functions, we must apply the law as we find it.

These conclusions lead to the determination that the judgment below must be reversed.

Me. Justice Butlee, Me. Justice Campbell and Me. Justice Bueke dissent.