State, 49 Tex.Cr.R. 620, 95 S.W. 520, 13 Ann.Cas. 730, 21 R.C.L. 272; 30 Cyc. 1455; Wharton's Crim.Ev. § 387."
In Phair v. United States, 60 F.2d 953, the Circuit Court of Appeals for the Third Circuit, in a case appealed from a judgment rendered in the District Court of the United States for the district of New Jersey, established the same principle.
In that case Phair was alleged to have subscribed and sworn to an affidavit with relation to the ownership of a certain saloon wherein intoxicating liquor was kept and sold. In the affidavit he denied ownership. It was charged that later in another proceeding Phair admitted ownership. There was some question as to whether the admission referred to the exact property referred to in the affidavit, but, however that may be, the court stated the law applicable to the instant motion as follows on page 954 of 60 F.2d:
"But assuming that Mr. Cohen, and not the other witnesses, correctly stated what Phair said, it simply amounts to an affidavit on the one side and contrary oral statements by the same person on the other. The affidavit and the later statements cannot both be true, and which one is true is unknown, for there are no corroborating circumstances sufficient to establish the truth of the statements contradicting the affidavit.
* * *
"At most, there was an oath on the one side, and conflicting testimony as to what Phair later said contrary thereto, on the other, without sufficient attending circumstances. If all three witnesses had unequivocally testified that Phair later flatly denied the truth of the statements made in his affidavit, the result would have been an affidavit by Phair and a subsequent denial of it by him. All that the testimony of the three witnesses amounts to is the establishment of a denial by Phair of his affidavit, and the mere denial of the truth of the affidavit is not sufficient to sustain the charge of perjury."
The case of United States v. Golan, D.C., 24 F.Supp. 523, decided by Judge Maris, then Circuit Judge, but determining a motion for a new trial in a case in which he had sat as a District Judge, held as follows on pages 523, 524 of 24 F.Supp.:
"Turning to a consideration of the common law of Pennsylvania I find it to be settled that two or more contradictory statements of a defendant standing alone will not sustain a charge of perjury. Com. v. Bradley, 109 Pa.Super. 294, 167 A. 471. Before a defendant may be convicted upon his admission that a prior statement under oath was false it is necessary to establish the corpus delicti, that is, the falsity of the defendant's prior sworn statement. Com. v. Haines, 130 Pa.Super. 196, 196 A. 621.
"In the present case the Government offered evidence proving that the defendant gave the testimony and made the affidavit in his naturalization proceeding which it contended were false. It then offered in evidence certain admissions by the defendant that this testimony and affidavit were false. No other evidence as to their falsity was produced, however, and I submitted the case to the jury upon the contradictory statements of the defendant alone and over his objection that the corpus delicti had not been proved. I am satisfied that this was error and that I should have sustained the defendant's motion for a directed verdict of not guilty."
These cases are convincing as to the rule established in this Circuit, and it is my duty to follow the rule so established.
The Government relies mainly upon two cases: The first, O'Brien v. United States, 69 App.D.C. 135, 99 F.2d 368. While it is true in that case the court sustained a conviction based upon the making of contradictory statements, the question as to whether that constituted perjury was not raised or decided. The first question decided was whether the statement, made by defendant, which constituted the proof of perjury had been procured by promises and threats. The second, an alleged commission of error by the trial court in permitting the stenographer who recorded the original statement to read to the jury those parts of it which proved the defendant's commission of other criminal offenses, and the third related to the imposition of sentence, as to whether defendant should have been sentenced under the District of Columbia Code or the Federal Penal Code. It is not a precedent for the contention.Petition for writ of certiorari to the Supreme Court was filed, including a motion to proceed in forma pauperis, which motion was denied. See 305 U.S. 562, 59 S. Ct. 95, 83 L. Ed. 354. Apparently no further proceedings were taken in the Supreme Court.
The second case is Behrle v. United States, 69 App.D.C. 304, 100 F.2d 714. That case seems to be exactly in point, following the doctrine established in the case of People v. Doody, 172 N.Y. 165, 64 N.E. 807.
In both of these cases the courts apparently relied upon the principle that perjury can be proved by so-called circumstantial evidence. I cannot believe that the courts can make new law on this subject, when for so many years it has been held otherwise.
The motion to quash will be granted.
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