Appeal from the District Court of the United States for the Eastern District of Pennsylvania; T. Blake Kennedy, Judge.
Before MARIS and JONES, Circuit Judges, and BARD, District Judge.
The defendant appeals from a judgment of conviction of perjury.*fn1 He contends that his alleged false testimony was not material to the question under inquiry and consequently that the conviction cannot be sustained. Since materiality is a question of law for the court*fn2 we shall examine the prior proceedings to determine whether the testimony was material.
The defendant and one other were indicted jointly and charged with violating restrictions and rationing orders as to new rubber tires and tubes.The indictment was in four counts. At the conclusion of the Government's case the court directed a verdict for the defendant upon counts III and IV. The jury found the defendant not guilty upon counts I and II. Count II charged that the defendants conspired to defraud the United States on December 12, 1941 and divers dates theretofore and thereafter by making false bills or invoices, by failing to keep any records of sales or transfers, and by failing to file an inventory report of new tires and tubes.
During the course of the trial the Government proved that the Office of Price Administration and the Office of Production Management required those who had new rubber tires and tubes on hand December 12, 1941, the date of the order freezing the supply, to make out an inventory report upon Form PD-216 and that the defendant had not filed this report. Upon cross-examination the defendant testified that he received Form PD-216 on January 5, 1942, that the instructions thereon were to file the report on or before December 31, 1941 and that since he could not file it on time he did not file it at all. He was asked by the trial judge whether he had previously stated that he did not file the report because he was winding up his business. He said this was so - that the report had to be filed every three months. The trial judge then asked the defendant whether he had filed a report for the first three months of 1942. The defendant replied "The First one I couldn't file because on the face of it it was void, and the next one came three months later, [i.e. in March, 1942] and I had no stock." The United States Attorney asked the defendant if he had not in fact purchased new tires in March, 1942. The defendant answered that he had not. He was thereupon shown a letter addressed to the United Petroleum Corporation, dated March 24, 1942, signed by him with his affidavit affixed, in which he stated that he had purchased 170 tires from that company on March 16, 1942. The defendant explained that the tires were in fact purchased by one Daniel L. Roatche, to whom he loaned the money for the purpose, but that he gave the letter stating that he had himself made the purchase in order to help out one Bernard E. Sweeney, an employee of the seller, who had become involved in the sale of the tires to Roatche.
In the trial upon the prejury indictment the Government undertook to prove that this testimony was false and that the defendant had in fact purchased and received 170 tires in March, 1942. The defendant contends that even if false this testimony was not material to the subject under inquiry and that the trial judge should have so decided as a matter of law and directed a verdict for the defendant.
We think that the testimony was as to a material matter. The reason for the defendant's failure to file the report in 1941 was the subject under inquiry. The Government contended it was with the intent to conceal and thereby to defraud the United States. The defendant claimed his failure to file the report was quite fortuitous and was due solely to the fact that he received the printed form too late for timely use. His failure to file subsequent forms which did arrive on time, therefore, shed light upon the credibility of his explanation. The question is whether the credibility of a witness is material to the inquiry in the sense in which that term is used in the perjury statute.*fn3 We think it is. It is well established that the false swearing need not be to the fact immediately in issue.
In United States v. Shinn, C.C. Ore., 1882, 14 F. 447, 453 the court said: "But when the superfluous or collateral matter is calculated and intended to prop and bolster the testimony of the witness on some material point, as by clothing it with circumstances which add to its probability or strengthen the credibility of the witness," it is material.In Luse v. United States, 9 Cir., 1933, 64 F.2d 776 it was held that testimony which if believed would tend to establish the credibility of the witness was material. In United States v. Slutzky, 3 Cir., 1935, 79 F.2d 504, this court pointed out that a material matter does not mean necessarily a matter that directly affects the ultimate issue of the trial but means one that is legally capable of being proved in the cause. In Goins v. United States, 4 Cir., 1938, 99 F.2d 147, certiorari dismissed 306 U.S. 622, 59 S. Ct. 783, 83 L. Ed. 1027, it was held that a witness commits perjury by swearing falsely not only as to the fact which is immediately in issue but also when he swears falsely as to material circumstances which have a legitimate tendency to prove or disprove such fact. In Blackmon v. United States, 5 Cir., 1940, 108 F.2d 572, 573, the court said "The materiality required is not as to any particular issue in the case, but as to the trial as a whole, that is, materiality is determined by whether the false testimony was capable of influencing the tribunal on the issue before it."
Applying any one of the above tests we conclude that the defendant's testimony as to the purchase of tires in March 1942 was material. It follows that the indictment based upon the alleged false testimony in the prior criminal proceedings was well founded. The court accordingly did not err in overruling the defendant's motion in arrest of judgment.
The defendant next assigns as error the refusal of the trial judge to charge that in a perjury case the Government must establish the falsity of the statement made by the defendant by the testimony of two independent witnesses or one witness and corroborating circumstances.*fn4 This rule of evidence has been the subject of cogent criticism.*fn5 Nevertheless, save for some exceptions not here relevant,*fn6 it continues to be applicable to perjury cases in the federal courts.*fn7 We, therefore, must begin with the premise that in the federal courts no defendant may ordinarily be convicted upon a charge of perjury which issupported by the testimony of but a single witness. It does not necessarily follow, however, that a defendant in a perjury case is entitle to have the jury instructed as to this rule of evidence. On the contrary not only historical considerations but practical considerations as well lead to the conclusion that the jury have no role to perform in its application. Moreover, as we shall see, even those courts which in theory have accepted the view that the jury are to be instructed upon the rule have in practice shown an increasing willingness to condone the refusal of the trial judge to give such instructions.
We will first glance briefly at the history of the rule and its nature.*fn8 In early times most perjury cases were tried in the Court of Star Chamber. That court, which followed the canon law, had absorbed much of the civil law in its procedure. In particular it had adopted the quantitative theory of evidence. This involved a counting of the oaths given in a judicial proceeding with victory going to the party with the greater number on his side. It was the intrinsic value of the oath rather than the credibility of the witness's testimony which was considered important. The Court of Star Chamber accordingly required two oaths against the defendant's one to sustain a charge of perjury. In 1640 when the Court of Star Chamber was abolished by statute jurisdiction over the crime of perjury was transferred to the common law courts and with it was transferred the two oaths rule. That the rule thus transferred was quantitative in its nature is indicated by the reasons which the common law courts gave for its acceptance in perjury cases but not in other criminal cases. In the Seventeenth Century when the transfer of jurisdiction took place defendants in criminal proceedings in the common law courts were not permitted to testify in their own defense. In a perjury case, however, the defendant's allegedly false oath was before the court and jury. The courts accordingly reasoned that the prosecution should be required to produce two oaths to contradict the defendant's one since otherwise there would be the legal stalemate of one oath against another. This, it will be noted, was a purely quantitative idea.
As originally taken over into the common law the rule, being quantitative in nature, required that the oaths of the two prosecution witnesses should both be directly adverse to the defendant's oath.*fn9 It is true that the rigor of the two oaths rule has long since been ameliorated by permitting evidence of corroborating circumstances to take the place of the second oath. But this modification came about in order to facilitate the conviction of perjurers. It was certainly not designed to provide them with additional opportunities to escape conviction. It would thus appear that the modification was not intended to change the fundamental nature of the rule to the extent of presenting a jury question where none had theretofore existed. Considered quantitatively the rule is purely one of law. The trial judge is in a position to determine whether the burden imposed by the rule upon the prosecution in this respect has been met. It it has been met he can submit the case to the jury. If the burden has not been met he can direct a verdict of not guilty.
When we turn to a consideration of the rule in its practical operation we likewise reach the conclusion that it should be considered as purely quantitative in nature and as raising no question for the jury. Considered from the standpoint of the jury's task the interjection of the rule into their deliberations would impede rather than aid them in reaching a right decision upon the sole issue with which they are concerned, the guilt or innocence of the defendant. For it such an instruction is to mean anything it must mean that the members of the jury must make an independent decision as to the credibility of each government witness before they determine the guilt of the accused and, if they find themselves unable to credit the corroborating witness whom the Government has offered, they must acquit the defendant even though they may be so well satisfied of the credibility of the principal government witness as to the convinced beyond doubt of the defendant's guilt. Anyone who has had practical experience in ...