Opinion
No. 20452
Decided December 14, 1927.
Criminal law — Subornation of perjury — Corroborative evidence necessary as to perjury of person suborned — Inducement may be established by uncorroborated testimony of person suborned — Perjured testimony must have been given under oath lawfully administered — Evidence sufficient that oath lawfully administered and witness assumed obligation thereof.
1. In a prosecution for subornation of perjury, while there must be corroborative evidence as to the perjury of the person suborned, the fact that such person was induced by the accused to commit the crime may be shown by the uncorroborated testimony of the person suborned, if it satisfies the jury beyond a reasonable doubt.
2. In the trial of one accused of subornation of perjury, it must appear beyond the existence of a reasonable doubt that the alleged perjured testimony of the person suborned was under oath duly and legally administered; and where there is sufficient evidence to show that the oath was administered by a person authorized by law to administer oaths, under circumstances indicating that such witness by his unequivocal and present act took upon himself the obligation of an oath, a verdict of guilty based upon such conclusion will not be disturbed.
ERROR to the Court of Appeals of Cuyahoga county.
This is a proceeding in error brought by the prosecuting attorney of Cuyahoga county to reverse the Court of Appeals of that county and to affirm the judgment of the court of common pleas. In the trial court the record discloses that Sam Ruskin was indicted for the offense of subornation of perjury on the 15th day of April, 1925, in procuring one Albert Dean to swear falsely in the municipal court of the city of Cleveland, in an action wherein Michael Kusby and Katherine Kusby were charged with an assault and battery upon one Minnie Ruskin, wife of Sam Ruskin, the defendant in error.
The perjured testimony the state claims Sam Ruskin procured Albert Dean to give under oath in said trial was as follows:
"That the said Albert Dean was in front of a shoe store operated by the said Sam Ruskin, and located at 5226 Fleet avenue, city of Cleveland, county of Cuyahoga, on the 15th day of April, 1925, at or about 11 a. m., when he, the said Albert Dean, saw the said Sam Ruskin run out of the shoe store with a shoe or shoe stretcher in his hand, and did hear the said Sam Ruskin cry, 'You killed my wife, you killed my wife,' that he, the said Albert Dean, saw the said Katherine Kusby and Michael Kusby and a third man run out of the said store at this time, and that he, the said Albert Dean, saw the wife of the said Sam Ruskin lying on the floor, and that her face was being bathed with water."
Afterwards Dean admitted that this testimony was false and that he had perjured himself, and testified that he was procured by Sam Ruskin, defendant in error, for a consideration, to give said perjured testimony in the foregoing action against Michael Kusby and Katherine Kusby.
Upon the first trial for subornation of perjury, Ruskin was convicted, which judgment of conviction was reversed by the Court of Appeals on the "specified ground that there is in the record an entire absence of corroborative evidence as to the false testimony." A second trial resulted in a disagreement and mistrial. A third trial resulted in the conviction of Ruskin, defendant in error, on May 14, 1926, which judgment of conviction was reviewed by the Court of Appeals, the journal entry reciting that "the judgment of the said court of common pleas is reversed for error of law." This judgment of reversal the state of Ohio now seeks to reverse and asks that the judgment of the trial court be affirmed.
Mr. E.C. Stanton, prosecuting attorney, and Mr. James C. Connell, for plaintiff in error.
Mr. James T. Cassidy and Mr. Joseph C. Bloch, for defendant in error.
A consideration of the errors complained of herein requires the determination of two points. First, whether the record discloses that the correct rule has been applied as to the evidence sufficient to support the judgment of conviction of subornation of perjury; and, second, whether there is sufficient evidence of a substantive nature to sustain the verdict of the jury that an oath was duly and legally administered to the witness Albert Dean, whose testimony is claimed to have been suborned.
There is a distinction between the crime of perjury and that of subornation of perjury; and we deem the rule, that under an indictment for perjury the defendant cannot be convicted on the uncorroborated testimony of a single witness, not applicable to a case of subornation of perjury. In the latter offense the defendant is not convicted for a crime occurring while he is under oath and testifying. "The offense that he commits is virtually consummated before the witness gives his testimony. He is not charged with the giving of false testimony. He does not commit his crime while performing any necessary function in the progress of a trial. Why then should his conviction require greater proof than in convicting for theft? We do not think it does." State v. Richardson, 248 Mo., 563, 154 S.W. 735, 44 L.R.A., (N.S.), 307; 30 Cyc., 1454; State of Iowa v. Waddle, 100 Iowa 57, 69 N.W. 279; Boren v. United States, (C.C.A.), 144 F., 801.
In State v. Renswick, 85 Minn. 19, 88 N.W. 22, it is said:
"If, in the prosecution of a party for subornation of perjury, it is sought to establish the fact that perjury was committed by the person suborned, his testimony must be corroborated as to such fact. But the alleged fact that he was induced to commit the crime by the accused may be established by his uncorroborated testimony if it satisfies the jury beyond a reasonable doubt."
With the foregoing statement of the rule as deduced from the adjudicated cases, we have examined the record and find that the same discloses that Dean went to court at Ruskin's instigation and told the story which Ruskin asked him to relate, which, in substance, was that:
Dean "was supposed to be going up Fleet [a street], supposed to be a fight in the store when I was going up, * * * and I was in the car then holding Mrs. Paladino's baby. * * * While she was looking in the window, she was supposed to see a fight in there, supposed to holler to me, 'Albert, they are having a fight in here,' and I set the baby down and jumped out of the car, I was supposed to do that. * * * And, Mrs. Kusby and Mr. Kusby and Sogg, they was supposed to run out, and he was supposed to come out back of them, and holler, 'They killed my wife, they killed my wife,' and he had a shoe stretcher in his hand, supposed to have: then Mrs. Paladino was supposed to go in there and bathe her face. * * * He told me he was going to sue Kusbys, and after he sued them he said that he would make it good for me, see I got my wages. He said not to be afraid. He said he had the judge and everything fixed. He couldn't lose."
Dean went to court where Ruskin pointed out Mrs. Kusby to him. Upon the witness stand in municipal court Dean related the story Ruskin had told him to tell. Dean in the case at bar testifies that the fact was he was not there at Ruskin's store that day, but was working at the plant of the Cleveland Builders' Supply Company, which was some two or three miles away; that he started to work between 10 and 11 o'clock, with one Joe Philkowski, working six or seven hours as a sand molder; that he could not leave his work for longer than five minutes at a time; that he never saw Ruskin again, but through Mrs. Paladino received $13 from Ruskin. Dean is corroborated in his testimony by the witness Joe Philkowski, who testified he went to work with Dean that day about 10 o'clock, arriving at the plant about 10:30 and worked six hours. Philkowski testifies that Dean did not leave the job that day and that he went home with him between 5:30 and 6 p. m. Dean is further corroborated by the testimony of J.E. Dempsey, a timekeeper of the Cleveland Builders' Supply Company for fifteen years, who testifies that both Dean and Philkowski worked a so-called full day on April 15th, but that he had no exact record of the exact time when they started or stopped. The witness Mrs. Geraldine Paladino, with whom Dean boarded, also corroborates his testimony; it appearing in answer to a question as to what was said by Ruskin relative to the proposed testimony which he wished Mrs. Paladino to give concerning the same matter, that Mrs. Paladino answered:
"Why, the time Mr. Ruskin came to our house he came for witnesses, and we were supposed to see a fight on the 15th day of April at his shoe store at the hour from 11 to 12; that I was supposed to be down there looking at — he had a sale in the window, and I was looking at the shoes, and at that time, why, I was to see a fight, them three people were in there and they were fighting, that as I say, as I was looking in the window, in the door, and to holler back to Albert, 'There is a fight.' * * * Albert was sitting in the car with my youngest baby, and I called to him and he put the baby down in the car, and he comes running up. * * * He told us if we would do this he would pay us, he would put us on easy street. In the meantime we talked over this what was supposed to happen until we had it all down by heart. He says, 'Now, get it down pat; you don't have to worry, I got the judge fixed, all you do is get up and say it; I will give you so much money, you know, put you on easy street,' and in the meantime he gave my husband four or five pairs of shoes * * *."
This story, as related by Mrs. Paladino in municipal court, she testifies in the case at bar, was false, and that she was not in front of the Ruskin store about noon of April 15th, etc., and denies the story in tote. Later the witness Mrs. Paladino testifies to a conversation with Ruskin, wherein she says:
"Why, we got into an argument over the check.
"Q. What check was that? A. Well, he didn't want to pay me anything for my time at that time, but gave Albert his money.
"Q. Which was how much? A. Thirteen dollars according to the check that he paid us."
In the testimony on the part of Ruskin these charges are denied.
Other excerpts from the record and other details might be given, and, while it is suggested that these state witnesses were unworthy of belief, yet we feel that this was purely a question for the jury to determine, and have reached the conclusion that there is ample corroborative testimony of both the perjury by Albert Dean and the subornation of perjury by the defendant Sam Ruskin, and that the jury was fully justified in reaching the conclusion that it did.
The second point for consideration is whether the record discloses sufficient to enable the jury to find beyond the existence of a reasonable doubt that the testimony of Albert Dean in the municipal court in the city of Cleveland, in the assault and battery case against Michael Kusby and Katherine Kusby, was given under oath, duly and legally administered.
An examination of the testimony of Dean in that cause shows conclusively that he knew that he was testifying in a court of justice; that the subject of the inquiry was the guilt of the accused of the offense of assault and battery charged in that court; that he was promised a subpoena by Ruskin; that he, together with the other witnesses, raised the hand as in the formal taking of an oath; that the deputy clerk (a lame man, whose voice was not strong) uttered certain words which Dean did not hear clearly enough to understand. Dean, however, in due time took the witness stand and testified in the case as he claims Ruskin had directed him to do.
We think there is no doubt but that the jury in the subornation of perjury case might well reach the conclusion that Dean in the assault and battery case was sworn before an officer duly authorized to administer oaths, and that to every apparent conclusion Dean by the unequivocal and present act of raising his right hand consciously took upon himself the obligation of an oath. This testimony of Dean as to his own outward act in putting up his hand before an officer of the court duly authorized to administer oaths, and his conduct in the court in which he testified, were both matters which the jury might properly consider in determining whether Dean understood the nature of what he was doing and his purpose in raising his hand in open court before a deputy clerk thereof in the formality of taking a legal and binding oath. Dean was 18 years of age at the time of the alleged subornation. He was doing a man's work at the brick plant of the Cleveland Builders' Supply Company. His testimony in the instant case shows him to have been an intelligent witness, fully cognizant of the court procedure that had taken place in the various trials incident to the cause.
From all the facts and circumstances surrounding the alleged administering of the oath, we think the conclusion reached by the jury upon that issue of fact between the state and the defendant Ruskin was such that it should not be disturbed.
29 Cyc., 1303: "Oaths are to be administered to all persons according to their own opinions and as it most affects their consciences. The uplifting of the hand is formal enough to make an oath legal and binding."
21 Ruling Case Law, 257: "To make a valid oath on the falsity of which perjury may be charged there must be in some form, in the presence of an officer authorized to administer it, an unequivocal and present act, by which the affiant consciously takes on himself the obligation of an oath. The underlying principle evidently is that whenever the attention of the person who comes up to swear is called to the fact that the statement is not a mere asseveration, but must be sworn to, and in recognition of this he is asked to do some corporal act, and does it, this is a statement under oath — and this, without kissing any book, or raising his hand, or doing any religious act." Ram v. King, 51 Can. Sup. Ct., 392, 39 Ann. Cas., 494; Curry v. Rex, 48 Can. Sup. Ct., 532, 32 Ann. Cas., 591; State v. Day, 108 Minn. 121, 121 N.W. 611; 85 Am. Dec., 489, note; Cronk v. People, 131 Ill. 56, 22 N.E. 862.
Entertaining the view that the record discloses that there is sufficient corroborative proof to justify the conclusion of the jury as to the perjury of Dean and the subornation of perjury by the defendant in error Ruskin, that said Dean gave such testimony under oath duly and legally administered, and that the jury's conclusion in so finding is sustained by the proper degree of evidence, it follows that the judgment of the Court of Appeals must be reversed and that of the common pleas affirmed.
Judgment reversed. Judgment of court of common pleas affirmed.
MARSHALL, C.J., ALLEN, KINKADE, ROBINSON, JONES and MATTHIAS, JJ., concur.