
    Jehial W. Stewart v. The State of Ohio.
    1. An essential element in the crime of subornation of perjury is the-knowledge or belief on the part of the accused, not only that the witness will swear to what is untrue, but also that he will do so corruptly- and knowingly.
    2. An indictment for subornation of perjury, setting forth in due form of' law the crime of willful and corrupt perjury by the suborned witness,, and then averring that the defendant feloniously, willfully, and corruptly did persuade, procure, and suborn the witness to commit “said perjury in manner and form aforesaid,” sufficiently charges the defendant with knowledge that the witness would corruptly and lbiowingly swear to that which was false.
    3. By the laws of Indiana the Court of Common Pleas has jurisdiction of divorce cases; and, by the decisions of herepurts, decrees in divorce are conclusive and binding between the parties, irrespective of their-residence at the date of the divorce, or of the petition therefor. To entitle a party to a divorce, however, he is required to state in his po. tition, and prove to the satisfaction of the court, that he is a resident of the county, and that he has resided in the state one year. Provis-ion is also made by law for bringing in the absent defendant by publication of notice. In a case where such petition had been filed in said court by a non-resident, falsely alleging that ho was such resident, and in which notice to the absent defendant had been duly published,, the deposition of a witness was taken before a proper officer in Ohio, proving the fact of residence, and the causes of divorce specified in. the petition: Held, that the oath and deposition of the witness were not extrajudicial or unauthorized by law, and that perjury may be assigned upon them.
    4. In a criminal case it is error to instruct the jury that evidence of the defendant’s good character is not to be considered by the jury, or made available to the defendant, except in doubtful eases; the true and proper rule being to leave the weight and bearing of such evidence to the jury. Harrington v. The Slate, 19 Ohio St. 268, approved.
    Error to the Court of Common Pleas of Ashtabula county.
    The original case was an indictment for subornation of perjury. It charges, in due form of law, the commission of the crime of willful and corrupt perjury by one "William II. Saxton. The peijury is alleged to have been committed by Saxton, in his deposition taken before a notary public in Ohio, to be read in evidence in a cause pending in the Court of Common Pleas of Lagrange county, Indiana, wherein said Stewart was plaintiff, and his wife was defendant, and in which he sought a divorce from his wife. In this deposition Saxton testified, among other things, that •Stewart was a resident of said Lagrange county, Indiana, and had been such re.-ident for one year, at the date of filing his said petition for divorce. It is upon this deposition of Saxton that the perjury is assigned, the indictment charging that at the time the deposition was made, Stewart was not, and never had been, a .resident of Indiana; and that Saxton well knew this statement, as well as the other statements upon which the perjury was assigned, to be false. The indictment then charges that Stewart, at a .specified time before the committing of the peijury by Saxton, “did unlawfully, willfully, wickedly, feloniously, and corruptly persuade, procure, and suborn him, the said Saxton, the said willful and corrupt perjury to commit.” 13ut the indictment does not, otherwise than in the above form, charge that Stewart knew, at the time lie so suborned Saxton, that Saxton would make said false statements corraplly, and knowing them to be false.
    
    
      Stewart pleaded not guilty, and on the trial a bill of exceptions was taken on bis behalf, setting forth all the evidence in the canse. From this evidence it appears that the Court of Common Pleas in Indiana has general jurisdiction in causes for divorce, but is not authorized to grant divorces, except in cases where the petitioner resides in the •county in which the petition is filed, and has resided in the •State of Indiana for at least one year at the time of filing the petition; and the law of Indiana regulating such divorces provides that the court shall, before granting the divorce, require the petitioner to make proof of such residence. The laws of Indiana also provide that a non-resident defendant in divorce cases may be brought into court by publication of notice; and the evidence shows that, at the time of taking this deposition in question, neither of the parties in said divorce cause was or ever had been a resident of Indiana.
    The bill of exceptions further shows that Stewart introduced upon the trial evidence tending to show his former good character for honesty and integrity.
    After the evidence had closed, the court was asked, on behalf of Stewart, to charge the jury, among other things, that if neither Stewart nor his wife was a resident of Indiana at the time of filing said petition for divorce, the Court of Common Pleas of Lagrange county had no jurisdiction of tbe divorce cause, and the oath and deposition of Saxton were extrajudical and unauthorized by law, and lie must be acquitted. This instruction the court refused to give, and, ou the contrary, charged the jury, in substance, that if the petition for divorce was pending at the time the oath was taken, notwithstanding sucii non-residence, the court had sufficient jurisdiction over the cause to authorize the taking of testimony therein, and that the oath of a witness therein would not be extrajudicial, or unauthorized,for want of jurisdiction in tbe court.
    The counsel for Stewart also asked the court to instruct the jury that “ the evidence offered by the defendant, of his good coaracter for honesty and integrity, is to go to vho jury and be considered by them like every other fact and circumstance in the ease; and if they believe the defendant to be guilty, they must so find, notwithstanding his good character.” Which instruction the court refused to give, and instead thereof charged the jury as follows:
    ; “Where the guilt of an accused person is doubtful, and the accusation is of such a nature as to involve the character of the alleged criminal, a presumption of his innocence-arises from his former conduct ia society, as evidenced by his known general character, since it is not probable that a person of known probity would commit a corrupt criminal act in the particular instance. Such presumptions,, however, are entitled to little or no weight as against clearly established facts. But they are admissible in doubtful cases, where, from the nature of the offense, a reasonable-presumption arises therefrom as to the fact in question;, and the presumption will be more or less weighty in proportion as the good character of the party is more or less satisfactorily proven.”
    To those charges of the court, as well as to the court’s-refusal to charge as requested, exceptions were taken by Stewart’s counsel.
    The jury found tile defendant guilty, and he was sentenced to the penitentiary, and he now seeks to reverse the-judgment, alleging, among other grounds of error, that the indictment is insufficient, and that the court erred in its-instructions to the jury, and in refusing the instructions asked.
    
      H. B. Woodbury, for plaintiff in error:
    The court in Indiana had no jurisdiction of the divorce-case. Bish. Mar. and Div., sec. 144, and authorities there cited ; Ib., secs. 150, 717, 720; 19 Ohio St. 502; 4 R. I. 87, 93, 105; 2 Gray, 367, 361; 10 Mass. 265; 1 Johns. 424; 41 N. Y. 272; 2 Blackf. 407-411; 7 Dana, 181; 46 N. Y, 30; Story on Confl. Laws, sec. 230, a; 2 Ind. Stat. 350.
    Hence, Saxton did not commit perjury. 3 Amer. Crim. Law. secs. 2211, 2213; State v. Alexaader, 4 Hawks, 182; 
      State v. Hayward, 1 N. & M. 46; State v. McCroskey, 3 McCord, 308; State v. Hyatt, 2 Hayw. 56; State v. Furlong, 26 Maine, 69; Montgomery v. The State, 10 Ohio, 220; 1 Seam. 80; Ohio Crim. Law, 561.
    Jurisdiction can neither be conferred, nor the want of it waived by either or both of the parties. 25 Conn. 541, 542; 22 Ib. 101; 7 How. (Miss.) 229 ; 4 Smedes & M. 549 ; 1 Scam. 249.
    Stewart is not estopped from traversing the jurisdiction, and he may disprove it by parol evidence. Reading v. Price, 3 J. J. Marsh. 61; State v. Baker, 25 Conn. 439; Walker v. Moseley, 5 Denio, 102; Denning v. Corwin, 11 Wend. 648; Borden v. Fitch, 15 Johns. 121; Hoffman v. Hoffman, 46 N. Y. 30; 99 Mass. 267, 273; 12 Ohio, 273; 4 Conn. 380; Story on Const., sec. 1307.
    The indictment is insufficient. Commonwealth v. Douglass, 5 Met. 244; Roscoe’s Crim. Ev. 772; Am. Crim. Law, sec. 2283; 2 Chit. Crim. Law, 474, 479-483; Arch. Pl. (1 ed.) 319; Birney v. State, 8 Ohio, 238; 7 Ohio, 255, pt. 1; Bennett v. Heard, L. C. C. 551-553; Commonwealth v. Stout, 7 B. Mon. 247; Miller & Gibson v. The State, 3 Ohio St. 487; Aultfather v. The State, 4 Ohio St. 467; Fouts v. The State, 8 Ohio St. 124.
    The charge as to the evidence of character was wrong. 2 Russ, on Crimes, 785; 3 Greenl. Ev., sec. 25; Roscoe’s Crim. Ev. 98; Remsen v. The People, 43 N. Y. 6; Cancemi v. The People, 16 N. Y. 501; 4 Park. 396; 19 Ohio St. 264; State v. Henry, 5 Jones (N. C.), 66; 12 Wend. 82.
    
      L. S. Sherman, on same side:
    The verdict should not stand, because it rests entirely upon the uncorroborated testimony of the accomplice, Saxton. Roscoe’s Crim. Ev. (6 Am. ed.) 122; Rex v. Wilkes, 7 Car. & Payne, 272; People v. Haynes, 55 Barb. 454.
    The court erred in permitting the state to cross-examine Mrs. Stockweil upon new and irrevelant matter. People v. White, 14 Wend. 114.
    
      
      E. C. Wade, Prosecuting Attorney, for the state:
    The Indiana court had jurisdiction of the divorce suit. Parish v. Parish, 9 Ohio St. 534; Ewing v. Ewing, 24 Ind. 475; 2 G. & H. Ind. Stat. 349, sec. 7.
    The indictment charges that Stewart knew that Saxton would commit perjury, and that is enough as to scienter. Warren’s Crim. Law, 560; S. & C. 1170, sec. 7; Wharton Am. Crim. Law, sec. 364, and authorities there cited; Sutton et al. v. The State, 9 Ohio, 133; The King v. Fuller, 1 Bos. & Pul. 186. Even if it be a defect, under section 90, Ohio Criminal Code, no advantage can be taken.
    The charge as to evidence of character was right. 19 Ohio St. 268.
    
      W. P. Howland, on same side,
    made additional citations, urging the Indiana court had jurisdiction. 2 G. & H. Stat. 350, 351; Ib. 22, sec. 11; Herron v. Herron, 16 Ind. 129; 13 Ind. 294.
    The indictment is sufficient. Warren’s Ohio Crim. Law (ed. of 1870), 559 ; 4 Black (Wend.), 137.
    Saxton’s deposition was properly admitted. The innuendoes used in setting it out were not part of the deposition, and were rightly used. Warren’s Ohio Crim. Law, 557; Crusen v. The State, 10 Ohio St. 269.
    The question to Mrs. Stockwell was proper. 1 Greenl. Ev., secs. 446, 449.
    The charge contained no error. Harrington v. The State, 19 Ohio St. 268; 1 Greenl. Ev., secs. 33, 34; Burrill on Circumstantial Ev. 530, 531.
   Welch, C. <1.

One objection taken to the indictment is, that it does not sufficiently charge what is called in legal parlance the scienter; in other words, it does not in so many wrords, or in direct language, charge that Stewart, at the time he suborned Saxton to take the false oath, knew and intended that Saxton would, or should, do so corruptly and knowing it to be false. It is undoubtedly law, that this guilty knowledge on the part of the suborner is a necessary element in the crime of subornation of perjury, and must therefore be averred in the indictment, and proved upon the trial. It is not enough to aver and prove that he had knowledge of the falsity of the testimony which the suborned witness was to give; he must also know or intend that the witness is to give the testimony corruptly, or with a knowledge or belief of its falsity. But this indictment does, as we think, sufficiently charge this guilty knowledge of the defendant. It first charges, in due form of law, the crime of willful and corrupt perjury by Saxton, including the averment that Saxton knew his testimony to be false and fictitious, and concluding with the averment that Sax-ton had “in manner aforesaid” committed willful and corrupt perjury; and it then charges that Stewart “ procured, persuaded, and suborned the witness to commit said willful and corrupt perjury in manner and form aforesaid.” The natural and primary import of this language is, to charge upon Stewart a knowledge of the guilt and corruption of the witness. The essence of perjury is the knowledge of the witness that what he states is false. To persuade him to commit perjury is to persuade him to stifle his conscience, and to state under oath what he knows not to be true. To persuade him to do less, that is, to make the false statement without the guilty knowledge, is not to persuade him to commit the crime. If I ask a man to lie, I necessarily ask him to deceive, and to deceive intentionally, because without the intention to deceive there is no lie, but a mere mistake. I know that before the statute of 14 and 15 Victoria, chap. 100, sec. 21, the English forms of indictment for subornation of perjury contained an averment, which is not found in this indictment, namely, that the defendant, at the time he suborned the witness, “knew that he would” testify falsely. But I can not see how this averment strengthens or renders any more certain the charge of the scienter; nor can I conceive of any evidence by which the averment can be proved, as the defendant could never know beforehand what the witness would testify. The effect of the English statute was, substantially, to dispense with this ambiguous and. apparently useless averment, and to sanction a form of indictment like that in the present ease, which we think is in this respect sufficient.

But it is said that the indictment is also insufficient, because it shows upon its face that the court of Indiana had no jurisdiction of the cause in which Saxton testified, and that his oath was therefore extrajudicial and unauthorized by law. The same objection is made upon the testimony, which shows, as the indictment avers, that neither Stewart nor his wife ever resided in Indiana, and which shows further, that by the laws of Indiana the court has no jurisdiction to grant divorces, except in eases where at least one of the parties resides in the state. And the same question is again raised by wTay of exception to the charge of the court.

We fail to see any force in this objection, in either of the forms in which it is raised. The question argued at length by counsel, namely, whether a decree of divorce rendered-in one state is binding upon parties who both reside in another state, need not now be considered. It is enough for the present case to say that the decree affects the rights of the parties in Indiana. That it has such effect in Indiana is not denied, and is abundantly shown by the statutes and judicial decisions in that state. By the laws of Indiana, the fact of residence is made part of the case, and is required to be proven by the petitioner, and the court is expressly authorized to hear the evidence by which it is to be established. While the petition is pending, and the question of residence is undetermined, or the fact of residence has been found by the court, surely there is a case or matter pending in which the-court is authorized by law to hear testimony and to administer oaths to witnesses. Whether the decree of the court, based upon an erroneous finding of the fact of residence, will be binding upon the parties, and estop them from denying the fact of residence, is entirely another question; it is enough here to know that the laws of Indiana authorize the institution of the proceeding before tbe fact of residence is established, and give the court power to hear testimony in the case.

It seems to us, therefore, that the indictment is sufficient; that the oath so taken by Saxton was not extrajudicial, and that the court did not err in its charge in that respect.

But it is also claimed that the court erred in its instructions touching the evidence of Stewart’s good character. The form of stating the law as to evidence of good character adopted by the court in this case is not without the sanction of authority. But it is condemned by what we deem the better authorities, and, as we think, by reason, as unsound, and calculated to mislead the-jury. It is liable, to say the least, to an interpretation by which the accused is virtually deprived of all benefit from evidence of bis good character; because, if such evidence can only be used in a “doubtful case,” it can avail the defendant nothing, for he is entitled to an acquittal without- it; and in a case not doubtful, where alone he needs the evidence, for the very purpose of making the case doubtful, or it may'be, of turning the scale in his favor, he is denied its benefit. We think the true and safe rule in such cases is that embodied in the charge asked by Stewart’s counsel in the present case, and substantially laid down by this court in Harrington v. The State, 19 Ohio St. 268. In other words, the jury should be instructed to consider evidence of defendant’s good character as they consider other evidence in the case, and its weight and bearing should be left entirely to them.

For the error in the charge of the court, in relation to the evidence of good character, the judgment must be reversed, and the' cause remanded for a new trial and further proceedings.

Other errors are assigned upon the record, but we deem it unnecessary to notice them, further than to say that, in our judgment, neither of them is well taken.

Judgment reversed and cause remanded.  