SULLIVAN v. UNITED STATES, 161 F. 253

COLT, Circuit Judge. The plaintiff in error, herein called the defendant, was convicted under Rev. St. § 5392 (U. S. Comp. St. 1901, p. 3653), of false swearing in a proceeding for the naturalization of one Molloy. The false swearing charged in the indictment consisted of the defendant’s testimony that he had known Molloy for over five years next preceding the hearing in Molloy’s case, during which time Molloy had resided at Boston. To certain rulings of the court below the defendant excepted, and he has prosecuted a writ of •error to this court.

The defendant’s motion to quash was overruled by the Circuit ■Court, and the defendant excepted. In Betts v. United States, 132 Fed. 228, 231, 65 C. C. A. 452, 455, this court said: “The law is settled that, with exceptional cases, where the federal courts have conformed themselves to the ancient local practice, error does not lie to the overruling of such a motion.” Passing by the question, however, whether this motion to quash •could be properly raised by the bill of exceptions, we think the motion was rightly overruled. The defendant’s exceptions to the introduction of evidence must also be overruled.

There was no evidence of his duress, such as to exclude what, he said to O’Neil, Waters, and Burke. The manifest of alien passengers was admissible. McInerney v. United States, 143 Fed. 729, 74 C. C. A. 655. There was evidence of the identity of Molloy, the passenger, with Molloy, the applicant for naturalization. No objection was made to the foundation laid by the government for the testimony •of Burke concerning the certificate of naturalization seen by him in Molloy’s possession. Had objection been taken, the defect, if any existed, might have been cured.

The only substantial question in the case is presented by the defendant’s first and sixth requests for instruction, viz.: “

(1) Upon all the evidence in the case the defendant is entitled to an ac•quittal.” “

(6) It is not enough to convict the defendant if the jury believe the statements in the manifest to be true. The government must present another witness or satisfactory corroborative evidence to the effect that the evidence given by the defendant in the naturalization proceedings was false.” The court refused to give these instructions, and the defendant duly •excepted to the refusal, which he has assigned in his ninth assignment of errors.

The real question here presented is whether, under the rule of evidence in perjury cases, the manifest of itself was sufficient evidence to warrant the jury in finding a conviction of perjury. Concerning the rule of evidence in perjury cases, and the reason upon which the rule is based, it is said: “Presumption is ever to be made in favor of innocence, and the oath of the party will have a regard paid to it till disproved.

Therefore, to convict a man of perjury, a probable or credible evidence is not enough; but it must be a strong and clear evidence, and more numerous than the evidence given for the defendant, for else it is only oath against oath.” Vin. 16 (K) 328; The Queen v. Muscot, 10 Mod. 193; United States v. Wood, 14 Pet. 430, 438, 10 L. Ed. 527; Roscoe’s Criminal Evidence (12th Ed.) p. 735; Regina v. Yates, Car. & Mar. 132. The essence of the rule is that strong and clear proof is required to disprove the defendant’s oath.

The courts have always recognized tlie justice of the rule The Supreme Court says: “It is a right rule, founded upon that principle of natural justice, which will not permit one of two persons, both speaking Tinder the sanction of an oath, and presumptively entitled to the same credit, to convict the other of false swearing, particularly when punishment is to follow.” United States v. Wood, supra.

Under the rule, the proof sufficient to warrant conviction in a perjury case must be either (1) the testimony of two witnesses contradicting the defendant’s oath, or (2) the testimony of one witness and corroborating circumstances, or (3) documentary proof which is equally strong and convincing. In United States v.

Wood the court considered that the documentary proofs m the form of the defendant’s letters were proofs “equivalent to the end intended to be accomplished by the rule,” and that the rule should not be so applied as to “exclude all other testimony as strong and conclusive as that which the rule requires.” In cases where oral testimony is offered to prove the perjury, corroborative evidence is required. In cases where documentary evidence is offered to prove the perjury, corroborative evidence is not required; but the documentary evidence must be as strong and convincing as where oral testimony is relied upon.

In the case at bar the documentary evidence offered to contradict the defendant’s oath was the manifest. Respecting this manifest Benjamin F. Maride, a statistician employed in the inspector’s department of the Immigration Bureau, testified as follows: “The lists or manifests were made up by various employes of the steamship company at the point of embarkation from information furnished them by the emigrants. These manifests are delivered to the inspector at the port of arrival, and are taken by liim or his deputy, who examines the immigrant.

If the answers of the immigrant correspond substantially to the information given by him to the officers of the steamship company at the port of departure, and recorded by this official there, the alien is permitted to land. The result of this examination is checked on the manifest in red ink, and any change or discrepancies noted in the same manner. These manifests are then hound and kept in the office of the immigration officials at Boston. These manifests are the only records of the landing of aliens in our office.

During the voyage, ilie steamship’s purser checks off the names appearing on the list while making an examination for the purpose of seeing if the persons named in the manifest are on board. After this is completed the master of the ship makes oath to the fact that he has a given number of aliens on board, this oath being recorded on the manifest. The ship's surgeon also certifies to (he condition of health of the alien passengers.” The manifest contains 22 questions which are asked each immigrant. These questions relate to name, age, and calling, nationality, etc.

Question lo reads as follows: “Whether ever before in the United States; and, if so, when and where?” To this question, as appears by the manifest, Molloy answered, “No.” The false swearing charged in the indictment, as we have already stated, consisted of the defendant’s testimony that he had known Molloy for over five years next preceding the hearing in Molloy's naturalization case, during which time Molloy had resided in Boston; and the only evidence in contradiction of the defendant’s oath is the answer made by Molloy in the manifest to the question whether he was ever before in the United States.

An answer by a third' party, not under oath, in a document of this kind, is manifestly insufficient under the rule to warrant a conviction of perjury. And here again we may refer to United States v.

Wood: “It must be conceded no case bas yet occurred in our own or in the English courts where a conviction for perjury has been had without a witness speaking to the corpus delicti of the defendant, except in a ease of contradictory oaths by the same person; but it is exactly in the principle of the exception, Which is by every one admitted to be sound law, that this court has found its way to the conclusion that cases may occur when the evidence comes so directly from tne defendant that the perjury may be proved without the aid of a living witness.” “In what cases may a living witness to the corpus delicti of a defendant be dispensed with, and documentary or written testimony be relied upon to convict?

We answer: To all such where a person is charged with a perjury, directly disproved by documentary or written testimony springing from himself, with circumstances showing the corrupt intent, in cases where the perjury charged is contradicted by a public record, proved to have been well known to the defendant when he took the oath, the oath only being proved to have been taken; in cases where a party is charged with taking an oath, contrary to what he must necessarily have known to be the truth, and the false swearing can be proved by his own letters, relating to the fact sworn to; or by other written testimony existing and being found in the possession of a defendant, and which has been treated by him as containing evidence of the fact recited in it.” We do not think that the above examples from United States v.

Wood were intended to be exclusive, but are given rather as illustrations. The whole spirit and reasoning of the opinion in that case is simply to the effect that when documentary evidence is relied upon in perjury cases it must be of a strong and convincing character, such as is required where the proof is by oral testimony. The judgment of the District Court and the verdict therein are set aside, and the case is remanded to that court for further proceedings in conformity with this opinion.