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UNITED STATES v. ROSE

July 10, 1953

UNITED STATES
v.
ROSE



The opinion of the court was delivered by: MURPHY

Defendant convicted of perjury, 18 U.S.C.A. ยง 1621, moves for judgment of acquittal *fn1" and for a new trial. A grand jury, investigating whether the government was defrauded as to the cost of operations of 'G.I. Schools', questioned defendant as a supplier of York Painters and Paperhangers Training School, Inc. It appeared that the school purchased tools from the Peerless Wall Paper Company for $ 5870.08. There was, however, apparently covering the same transaction defendant's invoice and a cancelled school check to defendant's order for $ 10,583.04.

Inquiring into the good faith of the transaction the grand jury asked defendant what he did with the check and the proceeds thereof. He said he cashed it at the Northwestern National Bank; paid about $ 1500.00 cash on one transaction to the Federal Wall Paper Company; about $ 3000.00 cash on another transaction to the Fidelity Paint and Varnish Company; placed the balance in a bureau drawer at home; and that he did not have a safe deposit box. One commits perjury when he knowingly states contrary to his oath any material matter which he does not believe to be true. United States v. Seavey, 3 Cir., 180 F.2d 837, certiorari denied 339 U.S. 979, 70 S. Ct. 1023, 94 L. Ed. 1383.

 There was sufficient competent evidence from which the jury could reasonably find that defendant testified falsely in each instance.

 Defendant asserts absence of material matter; the evidence does not meet the standard required in perjury cases; error in ruling on defendant's points for charge, and in refusing his requests to inspect the transcript of his grand jury testimony. *fn2"

 Materiality was a question of law for the court. Sinclair v. United States, 279 U.S. 263, at page 298, 49 S. Ct. 268, 73 L. Ed. 692; Carroll v. United States, 2 Cir., 1927, 16 F.2d 951, at page 954; United States v. Slutzky, 3 Cir., 1935, 79 F.2d 504, at page 506; Steinman v. McWilliams, 6 Pa. 170 at page 177. The test is whether the testimony has a natural effect or tendency to influence, impede, or dissuade the grand jury from pursuing its investigation. United States v. Moran, 2 Cir., 1952, 194 F.2d 623, at page 626. It is not negatived by the fact that a truthful answer would not have made the inquiry more successful. United States v. Goldstein, 2 Cir., 1948, 168 F.2d 666, at page 671. The scope of the inquiry should not be limited by doubts as to whether or not anyone would be indicted. Blair v. United States, 250 U.S. 273, at page 282, 39 S. Ct. 468, 63 L. Ed. 979. Defendant had a duty to give truthful answers. United States v. Johnson, 1943, 319 U.S. 503, at page 510, 63 S. Ct. 1233, 87 L. Ed. 1546; United States v. Norris, 300 U.S. 564, at page 574, 57 S. Ct. 535, 81 L. Ed. 808. The grand jury had a right to know whether or not the criminal laws of the United States had been violated. The matter involved was obviously material.

 As to quantum and quality of the evidence.

 A vice president of the Northwestern Bank testified (Count I) that defendant deposited the entire amount of the check to the account of Maurice or Bessie Rose. Against the deposit he drew a check- not the usual counter check- to cash for $ 3534.72; *fn3" drew a check payable to Peerless Wall Paper Company for $ 5870.08, and requested it be certified. Certification was delayed several days until the $ 10,583.04 check cleared the drawee bank. As corroboration the government produced the three checks, the deposit ticket, the bank's ledger card, and microfilms reflecting the transactions involving defendant's account.

 Philip Cohen, of Federal (Count II) and John Urban, of Fidelity (Count III) each denied having any such transaction with defendant. As corroboration they produced their books of account, records, invoices and deposit tickets.

 There was testimony that defendant requested Mr. Urban to write and date back a letter to prove the defendant had a transaction with him about the time covered in defendant's testimony, and that defendant threatened him with jail if he did not comply. He refused.

 Evidence of misconduct of a party in connection with the trial of his case is admissible as tending to show that he was unwilling to rely upon the truth of his cause. United States v. Katz, D.C.M.D. Pa., 78 F.Supp. 435, at page 438, affirmed 3 Cir., 173 F.2d 116; Vetterli v. United States, 9 Cir., 1952, 198 F.2d 291 at page 294.

 A bank employee testified defendant did have a safe deposit box at the bank (Count V). Originally in defendant's name only, the names of his wife and daughter were later added. As corroboration there was the rental contract signed by defendant and the record of visits indicating by defendant's signatures thirty-eight visits thereto.

 To prove defendant placed no proceeds of the $ 10,583.04 check in a bureau drawer (Count IV) the government relied upon the foregoing evidence, particularly that under Count I. The various witnesses and circumstances were competent for that purpose. The government need not corroborate the particular circumstances but merely prove the falsity of the oath itself. United States v. Palese, 3 Cir., 133 F.2d 600, at page 603; United States v. Seavey, supra, 180 F.2d at page 840; United States v. Hiss, 2 Cir., 185 F.2d 822, at page 830; United States v. Moran, supra, 194 F.2d at page 627; Com. v. Schindler, 170 Pa.Super. 337 at page 342, 86 A.2d 151; Com. v. Gore, 171 Pa.Super. 8 at page 13, 90 A.2d 405.

 'The general rule in prosecutions for perjury is that the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused set forth in the indictment * * *.' Hammer v. United States, 1926, 271 U.S. 620, at page 626, 46 S. Ct. 603, 604, 78 L. Ed. 1118, and see Weiler v. United States, 1945, 323 U.S. 606, 65 S. Ct. 548, 89 L. Ed. 495, 156 A.L.R. 496; Maragon v. United States, 1950, 87 U.S.App.D.C. 349, 187 F.2d 79.

 The converse is also true: the direct testimony of one witness is sufficient *fn4" if that testimony is supported by proof of corroborative circumstances. United States v. Palese, supra, 133 F.2d at page 602; United States v. Seavey, ...


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