
    Commonwealth v. DeCost, Appellant.
    
      Criminal law— Perjury— Evidence — Materiality—■ Appeals— Indictment.
    
    Testimony may be assigned for perjury either where it directly tends to prove or disprove one side or the other of the main issue, or where under the established rules of evidence it directly tends to do so by corroborating or discrediting other evidence or the testimony of another witness. In the former case the materiality may usually be determined by reference to the pleadings without reference to the other testimony; in the latter case, the testimony being given on some secondary issue of fact arising on the trial of the case, its materiality is ordinarily determined by an examination of the other testimony which it is intended to corroborate or contradict.
    If the question whether or not the materiality of the testimony assigned as perjury was proved, is to be raised on appeal after judgment upon a verdict, it is highly important that the record, including the pleadings in the case in .which it was given, be brought up for examination by the appellate court.
    It is not absolutely essential in an indictment for perjury to set out the precise words of the testimony alleged to be false; it is sufficient to set forth its substance and effect, talcing care, however, that the meaning of the matter set forth is clearly apparent.
    Where the indictment contains several assignments of perjury, in order to convict on' any one there must be either two witnesses, or one witness and corroborative evidence to negative the truth of the matter in such assignments.
    Argued Oct. 8, 1907.
    Appeal, No. 29, April T., 1907, by defendant, from judgment of Q. S. Allegheny Co., Dec. T., 1906, No. 152, on verdict of guilty in case of Commonwealth v. William B. DeCost.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Indictment for perjury. Before Evans, J.
    At the trial when Mary Scott Hartje was on the stand, she was asked this question:
    “Q. He (DeCost) testified on the trial of the case of The Commonwealth v. Hooe, that about September 5 or 6, 1903, in substance that you came to his tailoring establishment — ”
    Objected to.
    Mr. Brennen: Under the indictment, stating that it was September 5 or 6, counsel proposes to read a different allegation from that which is in the indictment. We object to that.
    Objection overruled.
    To which ruling counsel for the defendant request an exception. Exception allowed and bill sealed. [1]
    Whereupon the witness testified in response to a question by Mr. Robb:
    “Q. He testified that about September 5 or 6, 1903, you came to his cleaning establishment and interviewed Clifford Hooe, that he asked about the children and that you said the children were well and that they always liked you, Clifford, and that you shook hands with Clifford and had a low-toned conversation with him. Is that true or false? A. That is false. I never was in his establishment; never talked to him. Q. Did you ever see Clifford Hooe in his establishment in your life? A. No, sir.”
    Defendant presented these points:
    4. That in this case there is not sufficient evidence, in the opinion of the court, which would warrant the jury in finding that the defendant swore falsely to the assertion that on or about September 5 or 6, 1903, Clifford Hooe introduced to defendant a woman as Mrs. Hartje, and that a conversation took place between Hooe and that woman. Answer: Refused. [2]
    5. That there is not sufficient evidence, in the opinion of the court, to warrant the jury in finding that defendant swore falsely in relation to the incident of a woman waving her hand from the street car to Hooe, and that the woman was the same woman introduced to defendant as Mrs. Hartje. Answer: Refused. [3]
    8. - That the materiality of the matter alleged in the case to be perjury has not been shown by the commonwealth. Answer: Refused. [4]
    9. That in this case there is not direct evidence even of a single witness as to the falsity of the matter testified to by defendant at the Hooe trial. Answer: Refused. [5]
    10. That before the jpry can convict, it must be satisfied beyond a reasonable doubt of the truth of every fact or circumstance alleged by the commonwealth as tending to establish the charge of perjury, and it must also be satisfied beyond a reasonable doubt that such facts and circumstances make a case inconsistent with the innocence of the defendant. Answer: Refused. [6]
    Verdict of guilty, upon which judgment of sentence of two years in the penitentiary was passed.
    
      Errors assigned were (1) rulings on evidence, quoting the bill of exceptions; (2-6) above instructions, quoting them.
    
      J. S. Ferguson, with him W. J. Brennen and J. W. Holmes, for appellant.
    — This case is a most remarkable one, in this: there is not a single bit of direct testimony indicating that from any standpoint appellant committed perjury.
    
      December 12, 1907 :
    Perjury consists in swearing falsely and corruptly contrary to the belief of the witness, not in swearing rashly and inconsiderately according to his belief: Commonwealth v. Cornish, 6 Binn. 249; State v. Cockran, 1 Bailey (S. C.), 50; United States v. Shellmire, Fed. Cas. No. 16,271; Com. v. Brady, 71 Mass. 78; Williams v. Com., 91 Pa. 493.
    It is an elemental principle that the offense of perjury must be proved beyond a reasonable doubt: Regina v. Yates, 1 Carr. & Marsh. 132.
    It is admitted, of course, that the fact as to what the defendant may have sworn to may be proved by a single witness, but the falsity of such testimony cannot be proven by the testimony of a single witness: People v. Stone, 32 Hun, 41 (39 N. Y. Sup. Ct.); Regina v. Wheatland, 8 C. & P. 238; Schwartz v. Commonwealth, 27 Gratt. (Ya.) 1025; Rhodes v. Commonwealth, 78 Va. 692; Regina v. Yates, 1 Carr. & Marsh. 132; Galloway v. State, 29 Ind. 442; Gandy v. State, 27 Neb. 707.
    
      John M. Freeman, with'him John S. Robb, Jr., and Harry L. Goehring, district attorney, for appellee.
    — It is not necessary that the indictment shall set forth the precise language used by the defendant in his oath or affidavit. The substance is sufficient: Williams v. Commonwealth, 91 Pa. 493; Commonwealth v. New Bethlehem Borough, 15 Pa. Superior Ct. 158.
    The testimony of Mrs. Hartje is corroborated on material, points by at least five witnesses. It is not necessary that her entire testimony be corroborated by more than one witness, but it is sufficient if there be substantial corroboration on some material point: Williams v. Com., 91 Pa. 493; State v. Miller, 24 W. Va. 802.
    The appellate court will not consider assignments of error where material testimony relating thereto is not included m the record: Commonwealth v. Hasse, 21 Pa. Superior Ct. 291; Commonwealth v. Sober, 22 Pa. Superior Ct. 22.
   Opinion by

Rice, P. J.,

The indictment upon which the defendant was convicted averred that upon the trial of one Clifford Hooe upon a charge of perjury, the defendant, DeCost, willfully, falsely and corruptly testified in substance and to the effect that Mary Scott Hartje on the fifth or sixth day of September, 1903, came to his, DeCost’s, store, and then and there met, shook hands with, and conversed with Clifford Hooe, and that he, DeCost, on a certain morning after the fifth or sixth of September, 1903, saw Mary Scott Hartje wave from a street car to Clifford Hooe.

Testimony may be assigned for perjury either where it directly tends to prove or disprove one side or the other of the main issue, or where under the established rules of evidence it indirectly tends to do so by corroborating or discrediting other evidence or the testimony of another witness. In the former case the materiality may usually be determined by reference to the pleadings without reference to the other testimony; in the latter case, the testimony being given on some secondary issue of fact arising on the trial of the case, its materiality is ordinarily determined by an examination of the other testimony which it is intended to corroborate or contradict. It is seen from this statement of familiar principles that if the question whether or not the materiality of the testimony assigned as perjury was proved is to be raised on appeal after judgment upon a verdict, it is highly important that the record, including the pleadings in the case in which it was given, be brought up for examination by the appellate court. The record in the Hooe case, although offered in evidence, is not printed in the appellant’s paper-book. From this omission we are justified in inferring that the relevancy and materiality in that issue of the matter assigned as perjury, are not seriously questioned; and we add that, judging from the statements of counsel on both sides as to the nature of that issue, they could not be questioned.

But it is very earnestly urged, to adopt the words of appellant’s, counsel, that “there was no proof whatever to sustain the averments of the indictment,” and that “the indictment did not aver the matter on which the case was submitted to the jury.” In the consideration of these propositions, it is to be borne in mind that it is not absolutely essential in an indictment for perjury to set out the precise words of the testimony alleged to be false; it is sufficient to set forth its substance and effect, taking care, however, that the meaning of the matter set forth is clearly apparent: 2 Wh. Cr. L. (9th ed.), sec. 1297; 16 Ency. of Pl. and Pr. 333; sec. 21, Act of March 31, 1860, P. L. 427. It follows that if the proof of the testimony alleged to .have been given substantially supports the narration of it in the indictment, there is no fatal variance. Turning now to the evidence given on the Hooe trial, we find that the defendant, DeCost, testified that about the fifth or sixth of September, 1903, a woman came to his store whom Hooe introduced to him as Mrs. Hartje; that Hooe shook hands and conversed with her, part of the time in a low tone of voice; that after he received this introduction he recognized her voice as that of the person he had heard before over the telephone inquiring for Hooe; and that shortly afterwards he saw the same woman wave her hand from a street car to Hooe. There is no evidence that prior to these alleged occurrences DeCost knew Mrs. Hartje, or would have been able to identify her if he had seen her. Therefore, proof of the giving of this testimony, and of its falsity, would not of itself sustain the indictment, and so the learned trial judge plainly instructed the jury. But the testimony given by the defendant upon the Hooe trial did not rest here. Before he detailed the occurrences at his store, he testified that Hooe worked for him from the second or third of August, 1903, until Christmas, and then his examination proceeded as follows: "Q. Now while he was there did you know Mrs. Hartje? A. I know a lady came over to the store that I received an introduction to by Clifford who he named as Mrs. Hartje. Q. Did you see her here? A. Yes, sir. On the stand here and by the papers. Q. Is that the same lady that was on the stand here? A. Yes, sir.” Later in concluding his narration of the street-car occurrence he said, "So, I stepped out there to see what it was, whether it was the lady that I had received the introduction to through Mr. Hooe, and it was Mrs. Hartje.” Taking the defendant’s testimony as a whole the jury before whom it was given could naturally and reasonably interpret it as an assertion of a fact within his knowledge, that Mary Scott Hartje, the person whose conduct was brought in issue in that case, conducted herself towards Hooe in the manner substantially described in the testimony assigned as perjury. The fact that DeCost did not claim to have the knowledge at the time of those occurrences to testify to more than that the woman who waved to Hooe was the same woman whom Hooe had met at his place and introduced to him, does not determine the question of variance in the appellant’s favor. The conclusive fact is that at the time he gave the testimony he had seen Mrs. Hartje on the witness stand, and therefore had the knowledge, according to his own assertion, which enabled him to testify whether or not she had conducted herself in his presence in the manner in question. His testimony was not merely an assertion of a belief, or an opinion that she was the woman who had so conducted herself, but an assertion that a woman had so conducted herself, and that Mrs. Hartje was the woman. Not only is this the fair interpretation of the testimony he gave upon the Hooe trial, but it is apparent from his reiteration of the assertion upon his own trial that this was the interpretation he intended it to have. Without further elaboration we conclude that there is no substantial variance between the indictment and the proof as to the testimony which the defendant gave upon the Hooe trial.

' In the defendant’s tenth.point the court was requested to charge that before the jury could convict it must be satisfied beyond a reasonable doubt of the truth of every fact or circumstance alleged by the commonwealth as tending to establish the charge of perjury, and it must also be satisfied beyond a reasonable doubt that such facts and circumstances make a case inconsistent with the innocence of the defendant. This point was properly refused. If the defendant testified willfully, corruptly and falsely that Mrs. Hartje conducted herself in the manner testified to, a conviction could be had even though the jury might not be convinced beyond a reasonable doubt that no woman conducted herself in that manner at the time and place in question.

The weight of authority and the general rule require that where the indictment contains several assignments of perjury, in order to convict on any one there must be either two witnesses, or one witness and corroborative evidence to negative the truth of the matter in such assignments: Williams v. Commonwealth, 91 Pa. 493. In the affirmance of the defendant’s first point, as well as in other portions of his charge, the learned judge properly instructed the jury upon the question of the corroboration which it was necessary to produce in support of Mrs. Hartje’s absolute and unqualified denial of the facts testified to by the defendant. No good purpose would be served by a recital of the evidence produced in compliance with the rule. This was quite fully done in the charge of the court, and all that is necessary for us to say upon that subject is that there was ample evidence to warrant the conviction of the defendant, and that the case was submitted to the jury in a fair, clear and adequate charge.

All of the assignments of error are overruled, the judgment is affirmed, and the record is remitted to the court below to the end that the sentence be fully carried into effect, and to that end it is ordered that the defendant be committed to serve such part of his sentence of imprisonment as had not been complied with at the time his appeal was made a supersedeas.  