KUSKULIS v. UNITED STATES, 37 F.2d 241

PHILLIPS, Circuit Judge. The defendant, John A. Kuskulis, was indicted, tried and convicted of the offense of perjury and has appealed. The perjury charge was predicated upon testimony given by the defendant in his defense at a prior trial on the charge of subornation of perjury.

The indictment, in the instant ease, charged that, at such prior trial, the defendant testified he was not at the county court house of Huerfano County, in the city of Walsenburg, Colorado, on June 18,1927, when in truth and in fact he was in such court house on such date; that such testimony was false; that the defendant did not believe such testimony to be true, but believed it to be false; that such testimony was a material matter at such prior trial.

The government introduced the indictment in the subornation case; a transcript of the testimony of the defendant, given in the subornation trial, wherein he testified under oath that he was not in the court house at Walsenburg on June 18,1927, and oral testimony showing that the defendant was in the court house at Walsenburg on such date. The indictment in the subornation case alleged that the subornation took place in Walsenburg on June 18,1927, but did not allege specifically that such offense was committed in the court house at Walsenburg.

The evidence in the instant ease does not show that the testimony in the subornation ease fixed the situs of the crime of subornation in the eourt house at Walsenburg. Counsel for the defendant contend that, where one has been tried on a criminal charge and acquitted, he cannot he tried for perjury alleged to have been committed while testifying in his own defense at the former trial, because the verdict in the former cause is res adjudieata of the issue presented by the perjury charge, and they cite and rely upon the case of United States v. Butler (D. C.) 38 F. 498.

It is our opinion that the broad proposition, for which counsel for the defendant contend, is unsound. See Allen v. United States (C. C. A. 4) 194 F. 664; Youngblood v. United States (C. C. A. 8) 266 F. 795, 797, 798; Chitwood v. United States (C. C. A. 8) 178 F. 442, 443, 444; People v. Albers, 137 Mich. 679, 100 N. W. 908, 909. In the ease last cited, the court said: “It is true that the perjured testimony under consideration was material, because it strengthened respondent’s claim that he was not acting corruptly.

But its falsity is not, legally speaking, inconsistent with respondent’s innocence of the crime of bribery. Beicause respondent was innocent of that crime, it does not follow that all testimony tending to prove his innocence was true, and that all testimony tending to prove his guilt was false. * * * ‘The former verdict is conclusive only as to facts directly and distinctly put in issue, and the finding of which is necessary to uphold the judgment.

The doctrine of estoppel (that is, the eonelusiveness of a former judgment) is restricted to facts directly in issue, and does not extend to facts which rest in evidence, and are merely collateral. “A fact or matter in issue is that upon which plaintiff proceeds by his action, and which the defendant controverts in his pleadings, while collateral facts are such as are offered in evidence to establish the mat-tern or facts in issue.” ’ ” Assuming, without deciding, as indeed we cannot on this record, that the testimony for the government in the subornation trial fixed the situs of the subornation in the court house at Walsenburg, the fact that the defendant was present in, or absent from the court house at Walsenburg on June 18, 1927, was not directly determinative of whether he was guilty of subornation of perjury.

The fact that he was not there would have been a defense to the charge, but he could have been there and still not have been guilty of subornation of perjury. Therefore, it was a collateral fact not directly in issue in the subornation ease. However, we agree with what is said in Allen v. United States, supra, that the government should not prosecute for perjury upon the same evidence as was relied upon in the former trial. We do not understand this to be true in the instant case. Judge MeChesney testified in the instant case and apparently he did not testify in the subornation ease.

Counsel for the defendant further contend that the government failed to establish the materiality of the alleged false testimony. This contention is well founded. The alleged false testimony could be material only if the situs of the subornation were fixed in the court house at Walsenburg. This record does not show that it was.

Counsel for the defendant further contend that the court erred in giving the following portions of his general charge: • “The issue may be clarified perhaps if you will bear in mind that the defendant is on trial here on the sole question of whether he was in the state court room at Walsenburg on the 18th of June, 1927. * * * “Center your whole attention 'on the charge in the indictment here, which is whether he was in the court room in Walsenburg on the date in question. * * * “You must examine the testimony very carefully and weigh it, and decide the one question in the ease, that is, whether the defendant was in the court room that morning or not.

If he was, then it is your duty to find him guilty. If not, without hesitation find him not guilty.” These portions of the charge are clearly subject to criticism. They wholly take from the consideration of the jury the question of whether the defendant willfully and corruptly testified falsely to a material fact. The cause is reversed and remanded with instructions to grant the defendant a new trial.