
    Thompson, Plaintiff in error, vs. The State, Defendant in error.
    
      December 24, 1894
    
    
      January 8, 1895.
    
    
      Subornation of perjury: Information.
    
    A sufficient description of the action or proceeding in which subornation of perjury is charged to have been committed is an essential part of an information therefor, because without such a description it is impossible to tell with which of the two distinct crimes defined in sec. 4471, R. S., the accused is charged, or what will be the proper punishment if conviction follows.
    EbboR to review a judgment of .the circuit court for Wau-kesha county: A. Scott Sloan, Circuit Judge.
    
      Reversed.
    
    
      Subornation of perjury. The information was as follows: “ I, C. E. Arinin, district attorney for said county, hereby inform the court that on the 11th day of December, in the year 1892, at said county, Mary E. Thompson did wilfully and corruptly procure Fred Brown and Frank' Harrison,. alias James A. O’Brien, to swear falsely to a material matter-before the circuit court for said county, and before an officer authorized to administer oaths, and to commit the crime of pei'jury, in this, to wit: That the said Fred Brown and Frank Harrison, alias James A. O’Brien, should, and they and each of them thereafter did, corruptly and falsely swear that they were present in the office of Justice Gregory, in the city of Milwaukee, on the 5th day of April, 1890, and saw the said justice perform a marriage ceremony between the said Ma/ry E. Thompson and one Jones B. Higgins, and that they and each of them then and there signed their names to a certificate of said marriage prepared by the said justice, as subscribing witnesses; that said testimony was material to the issue then and there being tried, and was false, to the-knowledge of the said-Mary E. Thompson and the said Fred Brown and Frank Harrison, alias James A. O’Brien, against the peace and dignity of the state of Wisconsin.”
    At the trial, and before the introduction of evidence, objection was made to the introduction of any evidence under the information, on the ground that it did not state a cause of action. This objection was overruled, and exception taken. At the close of the trial a general verdict of guilty was rendered. Successive motions in arrest of judgment and for a new trial were overruled, and exceptions taken. Sentence of imprisonment for two years was imposed, and the accused sued out her writ, of error.
    
      D. J. Hemlock, for the plaintiff in error,
    argued, among-other things, that the information is defective in not setting forth particularly the title of the case or matter in which the alleged perjury was committed and whether the same was a judicial proceeding or some other matter, so-that the defendant could tell whether she was accused of the higher crime of subornation of perjury on the trial of a person on a charge punishable with imprisonment in the-state prison; and also in failing to allege the jurisdiction of the court. E. S. sec. 4171; Govey v. State, 23 Tex. App. 388, note 2; State v. Lloyd, 77 Wis. 630; State v. Allen, 85 id. 22;: State v. jS7mpe, 85 Am. Dec. 496; 2 Whart. Or. Law, § 1228 et seq.; 2 Bish. Cr. Proc. §§ 910a, 914; Morrell v. People, 32' Id. 499; Kerr v. People, 42 id. 307; MeGragor v. State, 1 Ind. 232; State v. Nieherson, 46 Iowa, 447; State v. Ftwiong,. 26 Me. 69; State v. Plummer, 50 id. 217; State v. Hamilton, 65 Mo. 667; State v. Owen, 73 id. 440; State v. Ammons, 3-Murph. 123; State v. Knight, 84 N. C. 789; Steimston v. State, 6 Terg. 531; State v. Wise, 3 Lea, 38; FranMln v. State, 91 G-a. 712; 18 Am. & Eng. Ency. of Law, 314; 2 Archb. Cr, Pr. & PI. 1719; 3 Eussell, Crimes, 60; Powers v. State, IT Tex. App. 428; State v. Webb, él Tex. 67; Conner v. Comm. 2 Va. Cas. 30; Comm. v. PieTceri/ng, 8 G-rat. 628, 56 Am.. Dec. 158.
    Por the defendant in error there was a brief by the Attorney General and J. M. Clancey, Assistant Attorney General,, and oral argument by the Attorney General.
    
    To the point that the information was sufficient, they cited sec. 4661,. E. S.; State v- Spencer, 6 Oreg. 152.
   WiNstow, J.

Sec. 4471, E. S., defines two distinct crimes known under the general name of “ subornation of perjury.”' The first is the subornation of wilful and corrupt false swearing in a criminal prosecution for a capital crime, which is punishable by imprisonment for a term of not less than three and not more than fifteen years; the second is the subornation of corrupt and false swearing in any other cause, proceeding, or matter, which is punishable by imprisonment not less than two nor more than five years. These are dis-iinet crimes, neither of which is included in the other. It results necessarily that a sufficient description of the action or proceeding in which subornation of perjury is charged to have been committed is an essential part of the information. Without such a description, it is impossible to tell with what offense the accused is charged, or what will be the proper punishment if conviction follows. The omission of this description is the omission of matter of substance, and not of mere form, because upon it depends the punishment. 1 Bish. Or. Proc. § 538; Frazier v. Turner, 76 Wis. 562. The court must be able to say, from the indictment and verdict taken together, what is the precise crime of which the accused has been convicted. Hogan v. State, 30 Wis. 428-436. It is manifest that the court cannot in this case say, from the information and verdict taken together, what crime has been committed; and, the defect in the information not being amendable (Frazier v. Turner, supra), the motion in arrest of judgment should have been granted.

Many other errors are alleged in the information and in the admission of evidence, but as this one, standing at the threshold of the case, is fatal and disposes of this prosecution, we do not deem it our duty to discuss them.

By the Court.— Judgment reversed, and cause remanded Avith directions to grant the motion in arrest of judgment and discharge the plaintiff in error.  