HOGUE v. UNITED STATES, 184 F. 245

SHELBY, Circuit Judge (after stating the facts as above). The indictment shows that the defendant, Hogue, had been tried for a violation of

section 5480 of the Revised Statutes (U. S. Comp. St. 1901, p. 3696) for having devised a scheme or artifice to defraud to be effected by using the mail. On that trial he testified as a witness for himself, and the charge of perjury is based on his testimony given in that case. The document about which he testified was presumably relevant to the issues on his' trial for violation of the postal laws. It is not shown that there was any controversy as to the original contents of, or the signatures to, the document.

The indictment indicates that the alleged false evidence, so far as it was material, related alone to the question of whether or not the document had been changed or amended by eliminations before it was signed by the defendant. The general question to be decided is whether or not the indictment .contains a sufficient charge of perjury. The English and American books on criminal law show that great precision and certainty has been required to write an indictment for perjury.

So many indictments for this offense failed under the scrutiny of the courts that statutes have been passed in England and America to eliminate many of the requirements that were considered too exacting. But there remains as inherent in the subject a requirement for certainty and particularity in the statement of the substance of the offense intended to be alleged — a requirement that the facts constituting the crime should be sufficiently stated to apprise the defendant of the substance of the offense charged against him.

The federal statute defining perjury is simple and plain, but it preserves' all the essential elements of the crime, and plainly requires that the false oath shall relate to a “material matter.” Rev. St. § 5393 (U. S. Comp. St. 1901, p. 3653). It is provided in another statute that indictments for perjury may dispense with the recital of specified records and proceedings that were at common law often held to be necessary parts of the indictment.

But this statute shows that the indictment should “set forth the substance-of the offense charged upon the defendant, * * * together with the proper averment to falsify the matter wherein the perjury is assigned.” Rev. St. § 5396 (U. S. Comp. St. 1901, p. 3655). We have another statute, not confined to perjury, which provides that no indictment shall be deemed insufficient because of any defect in matter of form, but it does not seek to dispense with matters of substance. Rev. St. § 1025 (U. S. Comp. St. 1901, p. 720).

It remains a fundamental requirement that the substance of the crime sought to be charged must be stated in the indictment, and- so stated that the defendant, from the allegations of the indictment, may understand what he is called upon to defend. This is a constitutional requirement. Const; Amend. 6. Since, as before, the statutes, every indictment for perjury must contain allegations showing (

a) judicial proceeding or course of justice; (

b) that the defendant was sworn to give evidence therein; (

c) the testimony given by him; (

d) its falsity; and (

e) its materiality to the issue or inquiry. The averments, therefore, are necessarily of two classes: • First, those which disclose the foundation for the commission of the offense; and, second, those which charge the offense itself. The first, constituting the inducement, may be general in terms, but the second — the charge of the offense itself — must be direct and specific, intelligible, and plain. It is the second class of the allegations to which our attention must be directed, and especially the attempted description of the alleged false testimony of the defendant.

As to that part of the indictment, notwithstanding the statutes to which we have referred, reasonable fullness and particularity are required, for it pertains to the very gist of the offense. 2 Bishop’s New Criminal Procedure, § 916. .The indictment is copied in full in the statement of the case, but it is well to repeat here the part of it which in charging the offense describes the defendant’s testimony.

It charges that the defendant did— “testify that the written word ‘out,’ as the same appeared on the margin of the first page, and the %orltten word ‘out,’ as it appeared on the margin of the second page, and the written word ‘out’ as it appeared on the margin of the third page, and the written icord ‘out’ as it appeared upon the margin of the, fourth page, and thp icritten word ‘out’ as it appeared, upon the margin of the fifth page, was' in the handwriting of S. A, Buffington, and tomtten and placed there t>y the said Buffington before he, the said W. •/.

Hogue, had signed the same, and that the said word ‘out’ so appearing on the margin of the said pages ivas so placed there by the said Buffington before he, the said Hogue, would sign the same, and was so placed there to strike out the portion of each of said pages so embraced within the said word ‘out.’ ” The defendant is charged with swearing falsely in reference to a certain instrument in writing which he held in his hand while testifying. The instrument is described by giving its date, address, by whom signed, and part of its contents, especially the first and last part of it.

It appears that it contained at least five pages. The alleged false testimony relates to the condition and contents of the document when it was signed by the defendant. The charge intended to be made was that the defendant had falsely sworn that before he signed the instrument certain portions of it had been stricken out, or taken out of the instrument, probably by including such portions in brackets or parentheses, and writing the word “out” on the margin opposite the portions so taken out of the document. This false testimony, it is alleged, was material.

The word “out” on the margin would be entirely immaterial, unless it was so used as to make some material change in the document. It is alleged that the word was written on the margin of each one of five pages of the document, but we search the indictment in vain to learn what part of the instrument, if any, was eliminated by the use of the word. It does not show whether its effect was to eliminate one word, or twenty, or more, and consequently it does not show whether the change effected in the document, if any,'was material or immaterial.

It is alleged that the defendant testified that the word “out” so appearing on the margin of said pages was so placed there “to strike out the portion of each of said pages so embraced within the said word ‘out.’ ” It in no way appears in the indictment what portion was “embraced within the word couf ” — whatever that may mean.

The learned United States attorney in the brief before us explains that at the time the alleged perjury was committed and the document was introduced in evidence it had the “penciled words ‘out’ and the parentheses around certain paragraphs. * * * ” And the district attorney discusses the materiality and importance of' the part of the document included in the parentheses, and adds: “It tiras appears that the testimony of Hogue, with reference to the word ‘out’ and tlie parentheses, was of the utmost materiality in. the fraudulent use of the mail case.” But none of this appears in the indictment.

It does not .show that any parentheses, or other means, were used to show what was referred to by the word “out,” and does not in any way show the substance of the part of the document, if any, that the defendant is charged with swearing was stricken out or eliminated before he signed it. In brief, it is charged that Hogue testified that by the use of the word “out” certain portions of the document were eliminated before it was signed by him, but the indictment does not in any way show what portions were so eliminated. It gives the defendant no notice of the substance of his alleged testimony as to eliminations.

He could not read the indictment, and tell what changes he was charged ydth having sworn had been made in the document. The word “out,” in the margin tw itself, has no significance or importance. It- was immaterial, on the issues in the first case, whether it was in the margin once or five times, or whether Buffington wrote it or Hogue wrote it.

It was only material if it indicated that a part of the document was stricken “out.” Read as you may the elaborate indictment and the very many statements and descriptions of parts of the document, no hint is found of the words, phrases, or sentences, if any, that Hogue is charged with having sworn were eliminated before he signed the instrument.

The only foundation for a surmise or guess on the subject is the averment that the word “out” was so placed “to strike out the portion of each of said pages so embraced within the said word ‘out.’ ” If we assume that the word “out” can embrace a portion of a page, we cannot tell ffom the indictment what part was so embraced, or what words of the document appeared on such part. The gist of the charge is that the defendant falsely swore that material changes were made in the document before he signed it. The defect is that it is not shown what changes he swore were made. This is a matter of substance.

It is the very pith of the alleged falsehood. The indictment should be so written that the defendant and the court, on reading it, could tell the substance at least of the change which it is charged that the defendant testified was made in the paper before he signed it. The witnesses when they appeared before the grand jury may have testified that Hogue swore to the elimination of certain parts of the document, and the grand jury, finding that Hogue’s statement was false, ma3'' have voted to indict him.

The petit jury may have come to the conclusion that Hogue’s statement as to that part of the document was true, but may, on the evidence before them, have convicted him of perjury for swearing that some other portion of the document had been eliminated before he signed it. And in this way the defendant, on an indictment failing to state the substance of the alleged testimony as to alterations, might be convicted of a matter in relation to which he had never been indicted. State v. Mace, 76 Me. 64, 66. An indictment that would permit such a result cannot be sustained.

The-District Court erred in overruling the demurrer to the indictment. There are many other assignments of error raising grave and important questions as to the conduct of the prosecution hy the United States attorney, and as to the rulings of the trial court during the progress of the case. In view of our conclusion that the indictment is fatally defective, we find it unnecessary to decide the other questions. The judgment of the District Court is reversed, and the cause remanded, with instructions to sustain the demurrer to the indictment.