Opinion
No. 18643
Decided December 23, 1924.
Criminal law — Sufficiency of indictment — Printed endorsement as "true bill" and signature of foreman subscribed — Section 13571, General Code — Blank space between typewriting and concluding clause — Perjury — Allegation of false statement by person solemnly sworn — Testimony at contempt hearing — "Proceeding" construed — Section 13587, General Code — Evidence — Privileged communications between husband and wife waived — Section 13659, General Code.
1. Section 13571, General Code, provides that when an indictment is found the foreman of the grand jury shall indorse on such indictment the words "A true bill," and subscribe his name as foreman. It is a sufficient compliance with that statutory requirement that the indictment have the words "A true bill" printed thereon, and that the foreman of the grand jury subscribe his name thereto as foreman.
2. Section 20, Article IV, of the Constitution of Ohio, provides that all indictments shall conclude "against the peace and dignity of the state of Ohio." An indictment otherwise valid is not invalidated by reason of a blank space being left between the typewritten matter in the indictment and the concluding words printed thereon in a printed form, even though such concluding words may appear on a different page from such typewritten matter, provided such concluding words appear at the end of the indictment.
3. An indictment for perjury is sufficient which alleges that a false statement was made by a person "who then and there was solemnly sworn," even though such indictment does not affirmatively show that the person who made the alleged false statement received the administration of oath as a witness.
4. Where, in a prosecution for crime, the wife of the defendant is called by the state to testify, and gives testimony material to the indictment, which testimony consists in part of a communication made by the husband to the wife during coverture, not in the known presence or hearing of a third person competent to be a witness, and no objection is made by the defendant or his counsel thereto, and no motion to exclude the testimony, and no request to instruct the jury not to consider such testimony, and the attention of the trial court is not called thereto at any time during the trial, the defendant will be held to have waived the provisions of Section 13659, General Code, in his behalf, and the admission of such testimony under such circumstances will not constitute reversible error.
5. Where, in a divorce and alimony action, the court upon the petition of the wife grants an order restraining the husband from disposing of his property during the pendency of the action, and upon trial of the cause awards the same property to the wife as alimony, but, before the decree is spread upon the journal, receives information that the husband has disposed of the property in disobedience of the restraining order, and thereupon the husband is cited and summoned to show cause why an attachment should not issue against him, and responds to such summons, and without objection receives the administration of oath as a witness, and though represented by counsel makes no objection to testifying, and does in fact give testimony, all of which is in open court, and the court having jurisdiction of the subject-matter of the action, it will be held to constitute a "proceeding" within the meaning of Section 13587, General Code.
ERROR to the Court of Appeals of Ashland county.
Plaintiff in error was convicted of perjury in the court of common pleas of Ashland county, the indictment being drawn under Section 12842, General Code, and, omitting the formal parts, in the following language:
"That Herman G. Ruch, late of said county, on the 12th day of January in the year of our Lord one thousand nine hundred and twenty-four, at the county of Ashland aforesaid, in a certain proceeding for contempt of court for the violation of an order of the common pleas court of Ashland county, Ohio, in a certain divorce and alimony action then pending in the court of common pleas in said county, wherein Helen Ruch was plaintiff, and Herman G. Ruch was defendant, did appear in said court, which was then and there open for the transaction of business, and then and there was solemnly sworn, in said open court by Cloyd M. Scott, clerk of said court, who then and there was duly empowered and authorized by law, as such clerk, to administer said oath, and so being sworn then and there in said cause and in a matter material thereto, did corruptly and willfully depose and declare certain matters then and there to be fact, to wit, that the date of a certain receipt marked 'Plaintiff's Exhibit 1' was correct, that he sold certain household furniture to Rollie Maxheimer for $75; that said furniture was sold before the 10th day of November, whereas in truth and in fact the said Herman G. Ruch did not sell said furniture to the said Rollie Maxheimer on said date or for said sum of money as set forth in said receipt, and whereas said receipt was fraudulently and corruptly executed at a later date for the purpose of defrauding the said Helen Ruch, the said Herman G. Ruch then and there well knowing the said matters so as aforesaid by him deposed and declared to be true, then and there to be false."
Ruch had theretofore been the defendant in a divorce and alimony suit in which the petition prayed and the court granted a temporary injunction to restrain Ruch from disposing of his property until final hearing of the cause. The order of injunction was made by the court, and a copy of the petition and summons was served upon Ruch personally on November 13, 1923. The divorce case was heard January 5, 1924, and on the same date the court announced that judgment would be rendered for plaintiff, the wife, and that she would also be awarded the household goods referred to and covered by the injunction. The journal entry was prepared, but before being filed and journalized it was found that Ruch had removed the household goods and placed them beyond the process of the court, and thereupon a rule for contempt was made by the court and a writ issued under the signature of the clerk and seal of the court to the sheriff of the county to be served upon Ruch, commanding him to appear forthwith before the judge of the court of common pleas to give testimony, and to show cause why an attachment should not be issued against him for contempt. This writ was duly served upon Ruch, and in obedience thereto he appeared before the court and gave testimony. In this hearing, and as a part of his testimony, all of which was given under oath duly administered by the clerk, Ruch presented an alleged receipt for the sale of the personal property, which receipt was dated November 8, 1923, this being prior to the service of the injunction. He further testified that the goods were in fact sold to Rollie Maxheimer for the sum of $75, and that the sale took place prior to November 10. Ruch did not at that time or at any time question the regularity of the contempt proceedings, did not object to testifying, did not except to any action of the court in that, proceeding, and did not prosecute error from the judgment rendered. It was claimed that this testimony was false, and the indictment for perjury followed.
Counsel for defendant urged many technical objections by plea in abatement, motion to quash, and demurrer, all of which objections were overruled. At the trial many other technical objections were urged. It was claimed that the state failed to prove that any contempt proceeding was in fact pending at the time the alleged false testimony was given; that the defendant was an involuntary witness; that his wife testified against him contrary to the provisions of Section 13659, General Code; and that incompetent testimony was admitted on behalf of the state, and competent evidence offered by the defendant was rejected. It was also claimed that the corpus delicti was not proved, and that the defendant was not convicted by that degree of proof required in criminal cases. The jury returned a verdict of guilty, judgment was entered thereon, and upon error prosecuted to the Court of Appeals the judgment was affirmed. The cause has been admitted to this court, motion for leave to file petition in error having been sustained.
Mr. Walter R. East, for plaintiff in error.
Mr. J.F. Henderson, prosecuting attorney, and Mr. C.C. Crabbe, attorney general, for defendant in error.
The grounds set forth in the plea in abatement are no longer urged in this court, but two of the grounds set forth in the motion to quash are urged. The first of these contends that the indictment is insufficient because the foreman of the grand jury did not indorse the indictment "A true bill." The indictment was the usual printed form, which has those words printed upon the back, and the foreman merely signed his name thereto. Section 13571 provides: "The foreman shall indorse on such indictment the words 'A true bill,' and subscribe his name as foreman." The other ground of the motion to quash is that the indictment failed to set forth that the matters therein stated are "against the peace and dignity of the state of Ohio." These are formal matters required by law, but they are of an exceedingly technical nature, and it is difficult to see how in any event the defendant has been prejudiced, even if his contentions are proven. Upon the first ground the case is not dissimilar from Whiting v. State, 48 Ohio St. 220, 27 N.E. 96, and upon the authority of that case defendant's motion was properly overruled.
As to the second ground, defendant's contention is even more technical, because the words referred to were not omitted from the indictment, and it only appears that there was a blank space left between the typewritten matter and the printed words. These legal requirements must not be construed as being so essential as to nullify a conviction otherwise regularly obtained. The same power which requires these technical formalities has provided in Section 13581, General Code, that certain technical defects and omissions of statement in an indictment shall not invalidate the same unless they "prejudice the substantial rights of the defendant upon the merits." It requires no argument to show that these matters could not have prejudiced the defendant and the court was therefore not in error in overruling the same.
The demurrer was based upon several grounds, two of which were urged in the motion to quash, which has already been disposed of, and we will therefore direct our attention to that ground which states that the indictment does not show that the defendant was sworn as a witness at the time he gave the alleged false testimony. This is a question of little difficulty, because the Legislature has particularly set forth the requirements of an indictment for perjury, in Section 13587, General Code, the pertinent part of which is as follows:
"It shall be sufficient to set forth the substance of the offense charged, and before what court or authority the oath was taken, averring such court or authority to have full power to administer such oath, with the proper averments to falsify the matters wherein the perjury is assigned."
This provision, taken in connection with that already quoted from Section 13581, leaves no doubt of the sufficiency of this indictment, and the court was therefore not in error in overruling the demurrer.
Many objections were made during the trial to the introduction of testimony on the part of the state, and all these matters have been examined and we find no substantial error or error which could be regarded as prejudicial. We do not deem any of these matters of sufficient importance to justify discussion, except the testimony given by Helen Ruch, the wife of this defendant. This entire matter developed out of a divorce and alimony proceeding, and it was at least a serious question at the time of giving the testimony which is the basis of this perjury prosecution whether Helen Ruch was divorced from the defendant, and although there seems to be no question from this record that the divorce had become effective before the time of trial of the perjury case, the testimony of Helen Ruch related back to a time when the entry of the decree of divorce had not yet been spread upon the journal. The divorce had been orally granted by the trial judge, a notation made upon his trial docket, and the entry prepared but probably not yet filed with the clerk. We will give the defendant the benefit of the doubt on this point, and assume for the purposes of this discussion that the divorce had not yet become effective, and that Helen Ruch was in fact his wife at the time of the occurrence of the communications testified to by her in the perjury case. An examination of the bill of exceptions discloses that her testimony was given without any objection whatever on the part of defendant's counsel. It is true that some question had been made at the time of her qualifying as a witness as to her true and correct name, but during the course of her examination on the part of counsel for the state, when the communications were testified to, no objection was made, but, on the contrary, when counsel for the defendant cross-examined Mrs. Ruch further questions were propounded by counsel for the accused and answered by her relative to the same matters. Section 13659 provides:
"Husband or wife shall not testify concerning it communication made by one to the other, or act done by either in the presence of each other during coverture, unless the communication was made or act done in the known presence or hearing of a third person competent to be a witness * * *."
Unless it be conceded that this language is absolutely prohibitory and that it utterly disqualifies the wife from testifying as to such communications under any and all circumstances, and unless it Curther be conceded that permitting her to testify well in response to questions propounded by the defendant's attorney is error, then the court of common pleas was correct in refusing a new trial on this ground, and the Court of Appeals was correct in affirming the judgment. It was stated in argument that this question was raised in this court for the first time, and it is quite certain that the opinion of the Court of Appeals does not deal with the proposition. We are of the opinion hat upon principle it was not error to receive this testimony and to permit the same to be considered by the jury, in the absence of any objection on the part of defendant's counsel, and, after a diligent search, we are not able to find any authority which imposes upon the trial court the duty of making objection to such questions, without objection on the part of counsel, or to exclude the same from the consideration of the jury without any motion to that effect. It must be conceded that the testimony of Helen Ruch was material to the issue, but, on the other hand, we are of the opinion that the failure to object at the proper time amounted to a waiver of the rights conferred by the statute.
Authority upon this point is meager. The Ohio courts have never met the question. The case of Blake v. Graves, 18 Iowa 312, held that the wife might testify for the husband with his consent notwithstanding the statutory provision that "the husband or wife shall in no case be a, witness for or against the other, except * * *." The homicide case of State v. Turner, 36 S.C. 534, 15 S.E. 602, construed the statutory provision that "no husband or wife shall be compellable to disclose any confidential communications made by one to the other during their marriage," and held that this provision could be waived.
It is further contended that the proof does not measure up to that standard which is required to sustain a conviction in a perjury case. The proof required in a prosecution for perjury is somewhat stricter than in prosecutions for other crimes, and is stated in the case of State v. Courtright, 66 Ohio St. 35, 63 N.E. 590, as follows:
"It is a general rule, that to warrant a conviction under an indictment for perjury, there should be at least one witness to the corpus delicti, or the falsity of the matter assigned as perjury, and that the testimony of such witness be corroborated, either by another witness, or by circumstantial evidence sufficiently strong to satisfy the jury beyond a reasonable doubt of the guilt of the accused."
We have carefully examined this record and find that even measured by this standard the testimony appears to sustain this conviction. The charge of the court upon this point was above criticism, and the jury having the matter properly submitted to it, and having rendered a verdict of guilty, and the common pleas court having overruled a motion for new trial, and the Court of Appeals having affirmed the judgment, this court under the well known rule that it will not weigh evidence is not justified in reversing a conviction which has been rendered and sustained by three separate tribunals, each of whom is not only authorized to but does in fact weigh and consider the evidence with a view of determining whether the verdict is sustained by that weight of evidence which the particular case under consideration requires. We therefore sustain the Court of Appeals judgment upon this branch of the case.
The last question presented by this record, and one which has received the earnest consideration of the court, is whether the record shows that the alleged false testimony which is the basis of the perjury prosecution was "material matter in a proceeding before a court, tribunal or officer created by law." The language of the perjury statute, Section 12842, is:
"Whoever, either orally or in writing, on oath lawfully administered, willfully and corruptly states a falsehood as to a material matter in a proceeding before a court, tribunal or officer created by law, or in a matter in relation to which an oath is authorized by law * * * is guilty of perjury * * *."
The indictment alleges that the alleged false testimony was given "in a certain proceeding for contempt of court for the violation of an order of the common pleas court of Ashland county, Ohio, in a certain divorce and alimony action then pending in the court of common pleas of said county, wherein Helen Ruch was plaintiff, and Herman G. Ruch was defendant."
It appears, therefore, in the allegation of the indictment, and it was also clearly shown in the proof, that the divorce and alimony action was still pending, final entry not yet having been filed, and it further appears by an exhibit to the record that Ruch was summoned to appear to give testimony in a divorce and alimony case, the citation bearing the caption of that case. It is sought by counsel for Ruch to confine the proof to a proceeding for contempt entirely segregated from the action for divorce, and it is claimed that the allegation of the indictment justifies such a construction. It appears in the oral testimony, though not by any exhibits filed in the case, that the decree of the court had been orally announced, and that certain personal property was awarded to the wife. It further appears that immediately after this oral award, and before the decree could be journalized, the defendant disposed of the property. It therefore seems entirely proper that the court should again set down the matter for hearing in order that a different decree might be rendered which would do justice to the wife out of other property, inasmuch as it seemed that the personal property could not be delivered to her. In this view of the case, Ruch was before the court in the divorce and alimony action which was still pending. If we should not adopt this view of the matter it would be necessary to consider whether a proceeding in contempt was then pending.
On this phase of the case, it is urged that the record does not show compliance with Section 12138, General Code, which requires that, in any proceeding for contempt not committed in the presence of the court, a charge in writing shall be filed with the clerk, an entry thereof made upon the journal, and an opportunity given to the accused to be heard by himself or counsel. Counsel for the accused in the instant case on cross-examination developed the fact that no such charges had been filed, and if this were a proceeding in error from a judgment finding the defendant guilty of contempt it would necessarily be found that the proceedings were irregular, and a conviction on the charge of contempt would be reversed. It does not however follow that such irregularities can be collaterally attacked, or that such irregularity would remove such a proceeding from the requirements of Section 12842, General Code. The latter section does not require that the alleged false testimony should be given in a suit or action, but it is only necessary that it be given in a "proceeding."
It is evident that the Legislature intended great latitude in the character of the inquiry which should become the basis of a charge of perjury. "Proceeding" is a term of much broader signification than either suit or action. It has been broadly defined as any act done by the authority or direction of the court. The term as used in this statute should not be construed in any technical sense, but should include all methods of invoking the action of courts and embrace any controversy which may or may not rise to the dignity of a suit or action. While it must undoubtedly be an authorized proceeding in which the alleged false testimony is given, it does not follow that a prosecution for perjury must fail unless it be affirmatively shown that all the usual or even necessary steps were taken leading up to the taking of testimony. The indictment charges that a contempt proceeding was being heard. This is clearly an authorized proceeding. It was being heard by a common pleas court, and such a court clearly has jurisdiction of the subject-matter. The defendant was summoned by a writ issued under the signature of the clerk and the seal of the court, directed to and served by the sheriff under a "rule for contempt," to give testimony and to show cause why an attachment should not be issued. An attachment could only issue to enforce compliance with some order of the court theretofore issued, not as a punishment for failure to comply with such an order. The defendant responded to the writ, submitted to the administration of the oath as a witness, and gave testimony which is alleged to be false. It cannot be successfully maintained that he thereby became a voluntary witness, but, at the least, he was a regular witness and gave testimony without objection or exception. He was represented by counsel, and is therefore presumed to have been advised of his rights. He did not see fit at that time either in person or by counsel to object to the alleged irregularities of a contempt proceeding. He is therefore in the position of having gambled upon the outcome of the matter then under inquiry, and as a part of the chances he took it is claimed that he gave false testimony.
It would be trifling with courts of justice, and would be putting a strained construction upon Section 12842, General Code, to require proof of absolute regularity in all the steps leading up to the taking of testimony. We are of the opinion that there was more than a mere "proceeding" pending. The record fairly shows that the testimony was taken in an action then pending in which the inquiry related to performance or non-performance of an order theretofore made by the court in the same action; and that action had not been completely ended; and that the court was taking further testimony to determine whether there should be a modification of the decree which had theretofore been orally suggested. We are therefore of the opinion that the court did not err upon that feature of the case. Having found no prejudicial error, the judgments of the lower courts must be affirmed.
Judgment affirmed.
JONES, ALLEN, and CONN, JJ., concur.