
    Stadden Crusen v. The State of Ohio.
    1. The forms of indictment for perjury found in Wharton’s Precedents of Indictments, 587, and Warren’s Ohio Criminal Law, 296, approved.
    2. On a trial under an indictment for perjury, it is not error for the court to charge the jury, that the corroborative evidence, in addition to the testimony of one reliable witness, need not be of sufficient force to equal the positive testimony of another witness, or such as would require a jury to-convict in a case in which a single witness is sufficient; but that it must be such as gives a clear preponderance to the evidence in favor of the state, and in view of this rule, establishes the falsity of the oath on which perjury is assigned, beyond a reasonable doubt.
    3. Where, on such a trial, the jury have retired to consider of their verdict, and the court being about to take a recess for dinner, announces in open court, and in the hearing of the accused (who is at large on bail), and his counsel, that *in case the jury shall agree on a verdict during the recess, the court-h.ouse bell will be rung, and that the court will, on that signal, convene and receive the verdict; and on the occurrence of such contingency, and the giving of such signal the court does convene, inquires for the counsel of the accused, and waits for them over twenty minutes, it is not error to receive the verdict in the presence of the accused and in the absence of his counsel.
    Error to the court of common pleas of Licking county.
    At the August term, 1859, of said court, the plaintiff in error was-indicted for the crime of perjury.
    In the indictment the grand jurors “find and present that Stadden Crusen, late of the county of Licking aforesaid, wickedly and maliciously intending and devising to vex and aggrieve one Lee-Dunning, and him the said Lee Dunning to subject to the punishment, pains; and penalties of the laws of said State of Ohio, provided for persons guilty of the crime of forgery, on the fifth day of January, in the year of our Lord one thousand eight hundred and fifty-nine, at the county of Licking aforesaid, came in his own proper person before Alexander Adair, then and yet one of the justices of the peace within and for the county of Licking aforesaid, and then and there, in due form of law, was sworn and took his oath before the said Alexander Adair, the justice of the peace aforesaid (he, the said Alexander Adair, then and there having full power and competent authority to administer the said oath to the said Stadden Crusen in that behalf), and that the said Stadden Crusen being so sworn as aforesaid, then and there before the said Alexander Adair, justice of the peace as aforesaid, upon his oath aforesaid, in a certain, information, complaint, and affidavit, then and there by the said Stadden Crusen made, and to depend before the said Alexander Adair, the justice of the peace aforesaid, falsely, maliciously, willfully, corruptly, and feloniously did say, depose, swear, and give information in writing as follows, that is to say, that Lee Dunning (meaning the Lee Dunning aforesaid) some time during the months of June, July, or August, in the year 1858 (meaning in the year of our *Lord one thousand eight hundred and fifty-eight), in the county aforesaid (meaning in the county of Licking aforesaid), did falsely forge and counterfeit a certain promissory note for the payment of money, purporting to be made and signed by this affiant (meaning the said Stadden Crusen), for the sum of twenty dollars, which said false, forged, and counterfeit promissory note is in the words and figures following, to wit: “ Six months after date I promise to pay to the order of Lee Dunning & Co. twenty dollars, value received. Stadden Crusen,”—with intent there and then to injure and defraud the said Stadden Crusen (meaning the Stadden Crusen aforesaid). And further affiant (meaning the said Stadden Crusen) saith not.”
    The indictment then proceeds to negative the truth of the matter sworn to, and to assign perjury thereon.
    To this indictment the plaintiff in error pleaded not guilty, and at the August term, 1859, was put upon his trial, but the jury having “ returned into court and being unable to agree upon a verdict,” they were dischai’ged from the further consideration of the case, and the same was continued.
    Afterward, at the November term, 1859, the case came to trial to a jury again.
    It appears from the bill of exceptions that in trying the issue to the jury at the November term, 1859, the state on her part introduced sundry witnesses who gave evidence tending to make out the case for the state, and among them was said Lee Dunning who testified, among other things, that the note set out in the affidavit of the plaintiff in error, upon which the perjury was assigned, was signed by the plaintiff in error with his own hand. Other evidence was given on behalf of the state and by witnesses called by the plaintiff in error, strongly tending to prove the falsehood of the oath, of the plaintiff in error, and upon which perjury was assigned, and te corroborate the testimony of the said Le'e Dunning as above stated. The plaintiff in error also gave evidence which, it was claimed, ^tended to show that he was not guilty as charged in the indictment.
    In argument to the jury, counsel for the state claimed that the evidence made out a case against the plaintiff in error; and on the other hand, his counsel claimed that upon the whole evidence the plaintiff in error was entitled to a verdict of acquittal.
    The court thereupon charged the jury, among other things, that before the plaintiff in error could be convicted, the state must make out his guilt by evidence establishing the truth of every material allegation of the indictment beyond a reasonable doubt; that among the allegations which it was incumbent on the state to establish, as above, was the allegation that the matter sworn to by the plaintiff in error, in his affidavit set out in the indictment, was false; that the falsehood could not be established by the testimony of one witness; that the law regarded the oath of the plaintiff in error as the testimony of one credible witness in his favor, and sufficient to countervail the testimony of one witness swearing positively in contradiction of his oath, so that the testimony of Lee Dunning on one side, and the oath of the plaintiff in error on the •other, would, if the jury regarded Lee Dunning as a credible wit-mess, leave the evidence on that point equally balanced, and that Ibefore the plaintiff in error could be convicted the state must furffurnish evidence in corroboration of Lee Dunning, so as to cause ¡the scale to preponderate in its favor; that the corroborative evidence need not be of sufficient force to equal the positive testimony <of another witness, or such as would require the jury to convict in :a case in which the testimony of a single witness is sufficient, but ■that it must be such as gives a clear preponderance to the evidence ün favor of the state; that in considering the evidence bearing upon ¡this point, the jury ought to keep this rule in view, in determining 'whether this allegation had been proved, and if in view of the :above rule, the state had failed to prove the truth of this allegation beyond a ^reasonable doubt, the plaintiff in error was entitled to the benefit of that doubt, and ought to be acquitted.
    The bill of exceptions further shows, that William Sample was ithe sole and only judge who presided at the trial; that Gibson Atherton, prosecuting attorney, and Charles Eollet, assistant ¡prosecuting attorney, conducted the prosecution on behalf of the state, and that James R. Stanberry and George B. Smythe conducted the defense, the plaintiff in error being on bail during the trial,, and in attendance in person; that the case was finally submitted to the jury by the charge of the court about 11 a. h., and that the jury at that time left the court-room, and, in charge of the proper officer, retired to their room to consider of their verdict; that after the court had charged the jury, and before they had retired as aforesaid, the court, in an audible voice, so that it might have been heard in any part of the court-room, and in the presence of the defendant and all the counsel engaged in the case, who were present in court, instructed the jury to return their verdict into court, if they should agree upon a verdict when the court was not in session; that the officer in charge of the jury was directed to ring the court-house bell, and the said judge would come to the court-house and receive the verdict, and no other notice was directed to be given to any party; that afterward, a short time before 12 o’clock si., of that day, that being the usual hour of adjournment for dinner, the court requested the sheriff, in hearing of the members of the bar present (the sheriff being in his box), to inquire of the jury if they were likely soon to agree upon a verdict in the ease; whereupon the sheriff, after making inquiry as requested, returned, and, from his box, reported to the court in the hearing of the members of the bar and others present, that there was no prospect of the jury agreeing soon; soon after which the court adjourned in the usual manner until one and a half o’clock p. m., the usual time of adjournment for dinner; and the said judge, the members *of the bar, and others present, dispersed, as usual upon such occasions.
    That at about twelve and a half o’clock p. m. of the same day, the court-house bell was rung, at which time the said judge, being at his boarding-house, and hearing the bell, at once repaired to the court-room, and directed the officer in charge of the jury to bring them into the court-room, which was done accordingly, and the jury took their seats in the box, the sheriff, his deputy, Wm. W. Coffee, who acted in the clerk’s office as an assistant clerk, but who was not legally qualified as a deputy clerk, and a considerable concourse of other persons being present in the court-room, said judge took his seat on the bench, and the plaintiff in error not appearing, the said judge directed the sheriff to call him, when he made his appearance and took his seat within the bar. The said judge seeing that the counsel for the plaintiff in error were not present, inquired of him if he desired to have his counsel present, to which he replied that he did. Thereupon the judge directed the sheriff to call Messrs. Stanberry and Smythe, and, after waiting a short time in expectation of the arrival of one or both of the counsel for the prisoner, and they not appearing, directed "Wm. W. Coffee, an assistant in the clerk’s office, but not a clerk, to call over the names of the jury and inquire if they had agreed upon a verdict, to which inquiry one of the jurors replied that they had. The said assistant then inquired of the jury whether they found the prisoner, Stadden Crusen, guilty or not guilty, to which the same juror replied that they found the prisoner guilty. The judge then waited for some time in expectation of the appearance of the prisoner’s counsel, he not doubting but that they had heard the instructions given to the jury and the officer having them in charge, as above stated, nor did he doubt but that they had heard the ringing of the bell, knowing that the offices of both of said attorneys are in the immediate vicinity of the court-house, and that the dwelling-house of the said George B. Smythe is but little *further distant from the courthouse than the judge’s boarding-house is, and quite as favorably situated for hearing the ringing of the court-house bell. After waiting a sufficient length of time for counsel to have traveled to the court-room from any part of the well-improved part of the village of Newark, after the ringing of the bell, and neither of them appearing, the judge, in the presence of said officers and other persons in attendance, inquired of the jury if they all agreed to to the verdict which had been announced by their fellow-juror, to which they all replied that they did. The judge then caused the said assistant to call the names of the jurors separately, and directed the jurors, as their names were respectively called, to rise to their feet, and the judge distinctly inquired of each juror whether he found the prisoner guilty or not guilty, to which in - quiry each of said jurors for himself distinctly answered that ho found the prisoner guilty. Thereupon, neither of the counsel for the state or for the prisoner having arrived or being present, and about twenty to twenty-five minutes after the ringing of the bell as aforesaid, the judge remarked that all had been done for the prisoner that could have been done for him if his counsel were present, discharged the jury, and directed the sheriff to take the prisoner into custody; and the judge and the other persons assembled at the court-room dispersed a short time before the ringing of the first bell for the assembling of court in the afternoon, which said first bell was regularly rung at one o’clock p. m. No counsel for the prisoner was present at any time during said proceedings, nor was anything other or further done or said by said judge or said prisoner in connection with the return of said verdict than as above stated.
    The prisoner, by counsel, filed a motion to set aside the verdict, and for a new trial, for causes :
    1. That he had been put upon trial in the absence of a person claimed by him to be a material and necessary witness for him, and to procure whose presence he- had *used due diligence, as vas insisted in the prisoner’s affidavit for continuance.
    2. That the verdict was against the law and the evidence.
    3. That the" testimony offered by the state, without reference to that adduced by the prisoner, was not sufficient evidence of the offense charged in the indictment, consisting, as was insisted, solely of the oath of the prosecuting witness opposed by the oath of the prisoner as to the contents of his affidavit, upon which the perjury was assigned, unaided by any proof, or by any legal proof, to cause the scale of testimony to preponderate in favor of the state.
    4. The irregularity in the return and reception of the verdict.
    Upon the hearing of this motion, the affidavits of George B. Smytkc and James R. Stanberry, counsel for the prisoner, were read.
    Smythe, in his affidavit, says that he was not consulted, and did not, in any manner, assent that the verdict might be returned in the recess of the court, when it was not in regular session ; and that he did not hear, at any time, any order or direction of the court- that the verdict should or might be so returned ; that after the adjournment of the court, at about the meridian of the day, and during the recess of the court, and before the hour to which the court was adjourned had arrived, a deputy sheriff came to*his house, and advised him that his presence was required at the court-house, whither he immediately went, and found the prisoner in the custody of the sheriff, neither judge nor jury being there, and was advised that the verdict had been rendered and received, and the jury dispersed. That he desired to be present at the rendition of the verdict.
    Stanborry’s affidavit states, that the cause was submitted to the jury shortly before twelve o’clock m., and that he heard the court advise the jury that if they agreed upon their verdict before the court met in the afternoon, *or during the recess, that notice might be given, and the court would appear in the court-room and receive the verdict, but that although he heard this announcement, he was not called upon as counsel to assent thereto, or dissent therefrom, and that he made no remarks thereupon. That the first intimation he had of any agreement by the jury was communicated to him by the deputy sheriff, at the hour of half-past twelve o’clock who called at his office and notified him that his presence was re quired in court, whither he immediately hastened, and found the prisoner in the custody of the sheriff, and learned that the verdict had been received and the jury polled by the court, and that both court and jury had retired.
    The deputy sheriff’s affidavit was also read upon the hearing of the motion for a new trial. He states .that upon the prisoner’s signifying his desire that his counsel might be present at'the reception of the verdict, he was immediately dispatched after them, and that he found Mr. Smythe at his house, and that he notified him that ho was wanted at the court-room immediately in the Crusen case, as the jury were in with a verdict against him. That he immediately went after Mr. Stanberry to his dwelling, and not finding him tliere, he repaired to his office, where he found him, and notified him that the jury were in with a verdict of guilty in the Crusen case, and waiting for counsel. That they both at onco hurried to the court-house, and when they reached it the jury had already dispersed, and the prisoner was in the sheriff’s custody, and that the judge was absent from the court-house. That in going for counsel he was either running, or on a fast walk.
    The court overruled the motion for a new trial, and passed sentence upon the prisoner.
    To reverse this judgment this writ of error is brought, and the following is the assignment of errors :
    1. The indictment is defective in this, that it does not *appear that the affidavit made before Justice Adair was made or intended to be made the basis of a criminal prosecution, or that it was used for that or any other purpose. For all that appears, it was a mere voluntary affidavit, made, it is true, before lawful authority, but for no lawful purpose.
    2. The court erred in attempting to lay down the rule as to the requisite amount of corroborative evidence, in addition to one witness swearing directly to the corpus delicti. The court charged that corroborative evidence need not be equal to one other witness or adequate in any other criminal case, to convict, standing alone; whereas, the true rule in cases of indictment for perjury, to be made out by oral and not documentary evidence, as in this case, is, that there must be two witnesses to the corpus delicti, or one and such other circumstances as are equal to another witness; in other words there must be two witnesses or their equivalent.
    
    3. The court erred in assuming as a fact that Lee Dunning had so sworn that his testimony, if the jury thought him credible, equally balanced the oath of the plaintiff in error; whereas, it appears, by the bill of exceptions, that Dunning swore, not that the oath of the plaintiff in error was false and the note not a forgery, but simply swore that the plaintiff in error signed the note. This unwarranted assumption of the court was calculated to mislead the jury-
    4. The court erred in invading the province of the jury in saying to them that the oath of Lee Dunning, as by him testified, if the jury believed him credible, was in fact equal to the oath of the plaintiff in error; whereas, that was purely a matter of fact for the jury, whether Lee-Dunning had sworn in such a manner and to such extent in respect to the corpus delicti, as made his oath equal in fact to the oath of the plaintiff in error.
    5. The court erred in permitting the verdict to be received under the circumstances set out in the bill of exceptions, *it being the constitutional fight of the plaintiff in error, not only to be present himself, but equally so to have his counsel present at the. reception of the verdict.'
    6. The court erred in putting the plaintiff in error upon his trial a second time, he having been once put in jeopardy by a jury sworn charged with his deliverence at a former term of the court, and said jury dismissed and discharged without any legal necessity for so doing, whereby he was deprived of his constitutional right not to be twice put in jeopardy fo£ the same offense.
    7. The court erred in overruling the motion for a new trial, and rendering judgment on the verdict.
    8. The court erred in other respects, and there are other errors in the record, all which are apparent on inspection of-the record.
    9. The judgment should have be for, instead of against, tho plaintiff in error.
    
      
      Smythe, Stanberry & Case, for plaintiff in error.
    
      Gibson 'Atherton, prosecuting attorney, for the state.
   Brinkerhoee, C. J.

The first assignment of error is, that the indictment is defective in this : “ That it doos not appear that the affidavit made before justice Adair, was made or intended to be made the basis of a criminal prosecution.”

The indictment is framed under the 9th section of the act of March 7, 1835, “ providing for the puuishment of crimes,” which provides “ that if any person, on his or her oath or affirmation, in any action, plea, suit, petition, answer, complaint, etc., depending, or which may depend in any of the courts in this state, etc., or be-any justice of the peace, etc., shall willfully and corruptly depose, affirm, or declare, any matter, to he fact, knowing the same to be false, etc., every person so offending shall be deemed guilty of perjury,” etc.

Now the indictment does distinctly charge that the *oath was made to subject Lee Dunning to the pains and penalties of forgery, “ and in a certain information, complaint, and affidavit then and there by the said Stadden Crusen made and to depend before the said Alexander Adair.”

We think the indictment sufficient, and substantially in accordance with approyed precedents. Wharton’s Precedents of Indictments, 587; Warren’s Ohio Criminal Law, 296.

By the second assignment of error, it is alleged that the court below, in its charge to the jury, erred in stating the “rule a¡3 to the requisite amount of corroborative evidence in addition to one witness swearing directly to the corpus delicti.”

On this point the court below charged the jury, that “ the corroborative evidence need not be of sufficient force to equal the positive testimony of another witness, or such as would require the jury to convict in a case in which a single witness is sufficient, but that it must be such as gives a clear preponderance to the evidence in favor of the state,” and, in view of this rule, establishing the perjury beyond a reasonable doubt. This charge of the court below is sustained by the weight of modern authorities, and is, we think, substantially correct. 1 Greenleaf on Ev., sec. 257, and cases there cited.

The third assignment of error is, that the court assumed as a fact, that the testimony of Lee Dunning on the one side, aud the oath of the prisoner on the other, would, if the jury regarded Lee Dunning as a credible witness, leave the evidence equally balanced.

There was no assumption in the- matter. It is shown by the record that Lee Dunning had testified that the note which the prisoner had sworn was a forgery, was signed by the latter with his own hand. The court was not assuming, but stating a fact which was in evidence.

The fourth assignment of error is to the same effect as the preceding, and need not be further noticed.

The fifth assignment of error is, that the court “erred in permitting the verdict to be received under the circumstances set out in the bill of exceptions.”

This is the only point in reference to which we have at any time entertained any doubt, and that in consideration of which the writ of error in this case was allowed.

It is the undoubted constitutional right of a party accused to be present with his counsel at every stage of his trial. But the right to the presence of counsel is in the nature of a personal privilege. It may be waived. It is no .part of the business of courts to compel the attendance, or to enforce the vigilance of counsel. It is their right to attend at the trial; and this right is to be in no way obstructed df denied; nor are they to be surprised by any unreasonable or improper action of the court. But the convenience of counsel can not be allowed to obstruct the reasonable dispatch of business. The court can not reasonably be expected to issue process to compel their attendance, or to employ express messengers to run them down. If it can, how far must such messenger be sent ? Where is the limit? Certainly there must be some limit to the privileges of counsel. It is their duty, when they have cases ponding, to be in attendance at the regular sessions of the court; and if a public announcement is made in ojien court, that upon the ringing of the bell, during a temporary recess, the court will convene to receive a verdict, and a reasonable time is given for counsel to attend after such signal, the party has no cause to complain of the court. Here the announcement was audibly made in ojien court, during the regular session of the court, in the hearing of the accused and his counsel, that if the jury should agree upon a verdict during the recess about to be taken for dinner, the court-house bell would be rung, and upon that signal, which is the usual one in such cases in country villages, the court would convene and receive the verdict.’ And we are of opinion that this was doing all that could reasonably he asked of the court. We can see no *circumstanee in the case indicating a disposition on the part of the court to treat the prisoner unfairly, or to deny him any of his rights. If the accused had been in actual custody, instead of being at large on bail; or had the verdict been received in the night season, the case would have been different, and different circumstances might have demanded more consideration for the convenience of counsel. Rut in cases of this kind, no rule can be prescribed for all cases, and each must stand u|>on its own circumstances.

As for the sixth assignment of errors, we see nothing in the record to sustain it; and the remaining assignments of error are all general. As to them we can only say, we see no error in the record and proceedings of the court below, and the judgment is therefore affirmed.

Scott, Peck, and G-holson, JJ., concurred.

Sutliee, J.

I concur in holding that there appears to be no error in the court’s receiving the verdict of the jury in the absence of the counsel of the plaintiff in error ; for the reasop that he was not under arrest, was present, and did not ask for his counsel to be sent for, and neglected to go for them; and made no objection to the verdict being received in the absence of his counsel. Under these circumstances I think the accused may have been understood to waive the presence of his counsel.

The counsel are not parties to the record, and under the circumstances their neglect to attend at the time of the verdict being received, gave them no rights which the court were bound to respect.  