Bennett v. District Court of Tulsa Co. , 81 Okla. Crim. 351 ( 1945 )

I cannot agree to the conclusion of law reached by the majority, wherein it is held that irrespective of the falsity or materiality of the testimony given by a witness before a grand jury it could not be perjury if the evidence later showed that the venue for the crime being investigated laid in another county, or that the prosecution is barred by the statute of limitations.

The identical issue here involved has never been before this court for determination and calls for a close examination of our statute and decisions of other courts in order to arrive at a correct conclusion.

The issue before this court is: May a person be guilty of perjury for willfully and corruptly testifying falsely before a grand jury on a material matter in connection with an investigation where the crime or subject matter being investigated is within the general jurisdiction of the district court, but evidence introduced at a hearing on a motion to quash an indictment shows that no venue laid in the county where the investigation is being conducted or that the prosecution for the crime being investigated is barred by the statute of limitations?

In approaching this case and deciding the interesting question of law involved, this court should bear in mind the admonition of our distinguished former jurist, Henry Furman, wherein he stated:

"Penal laws are not enacted for the encouragement of crime and the protection of criminals, but they are enacted for the sole and express purpose of punishing and suppressing crime and thereby protecting society; and it is the paramount duty of courts to so construe them as to promote this purpose." Parker v. State, 7 Okla. Cr. 238, 122 P. 1116.

I have heretofore concurred in the opinion holding that the prosecution herein was barred by the statute of limitations, and, for that reason, the action of the district court of Tulsa county in quashing the indictment for conspiracy should be sustained. However, as I view the law, it does not follow as a necessary sequence that because the indictment for conspiracy must fall because of the bar of the statute of limitation or lack of venue that no person who testified before the grand jury in the investigation of this alleged offense may possibly be guilty of perjury, irrespective of the materiality of his testimony.

I think the learned trial judge who heard the evidence introduced at the hearing on the motion to quash the indictment was entirely correct in all of his rulings. He sustained the motion to quash the conspiracy indictment and, also, sustained the motion to quash two of the perjury indictments against the defendant Bennett, on the ground that the testimony given by the defendant which formed the basis for the indictment was not material to any issue before the grand jury, but the said trial judge sustained one indictment against the defendant Bennett, two against defendant Willis Smith, and one against defendant J. T. Daniel. These indictments were sustained even though the trial judge had held that the conspiracy indictment must fall because of the three year limitation on the commencement of a prosecution for conspiracy and, further, because venue did not lie in Tulsa county. The reasoning given by the trial judge in sustaining the indictments for perjury is as follows:

"I wish first to dispose of a question as to whether the Grand Jury in Tulsa County had a right to investigate the alleged conspiracy referred to in Case No. 11,467. I hold that, not only under the instructions given to the Grand Jury by the court, but under the existing law or laws, the Tulsa County Grand Jury had a right to investigate the alleged conspiracy, and in connection therewith, I lay down this proposition of law: If it appears that a crime has been committed in the State of Oklahoma, and the Tulsa County Grand Jury is investigating the matter for the purpose of determining, first, the commission of the crime, and, second, if the said crime was committed in Tulsa County, that this grand jury, as a fact finding body, has a right to pursue the investigation, and should one appear before that body and testify falsely on a material fact pertaining to the subject matter, he is guilty of perjury, even though it was later determined that the crime under investigation was not committed in Tulsa County."

It is my opinion that this court should adhere to the rule which I think is in accordance with sound public policy and which will promote the ends of justice and be conducive to the efficient enforcement of criminal law. This law is stated in 41 Am. Jur. 15, under the discussion of Perjury, as follows:

"A distinction is to be observed between want of jurisdiction to take cognizance of a case and want of jurisdiction to proceed to judgment therein. It frequently happens that want of jurisdiction in the latter sense arises from some matter dehors the record which appears only after investigation. Hence, while a court may not have jurisdiction to proceed to judgment, it may have jurisdiction to take cognizance of a case in the first instance, until the facts showing lack of jurisdiction appear; and testimony given on record showing jurisdiction is none the less perjury because the facts later appear defeating jurisdiction."

This identical rule of law is also stated in 82 A.L.R. 1138. See, also, West v. United States, 258 F. 413; Markey v. State, 47 Fla. 38, 37 So. 53; People v. Rogers, 348 Ill. 322,180 N.E. 856; People v. McCaffrey, 75 Mich. 115, 42 N.W. 681; Commonwealth v. Weingartner (Ky.) 27 S.W. 815; State v. Ridley (N.C.) 19 S.E. 149; Stewart v. State, 22 Ohio St. 477; Abrams v. State (Ohio) 170 N.E. 188; Cordway v. State (Tex. Civ. App.) 8 S.W. 670; Laird v. State (Tex. Cr.) 184 S.W. 810; Reg. v. Cook, 167 Eng. Reprint 583; Reg. v. Proud, L. R. 1, c.c. 71; People v. Macken (Cal.) 89 P.2d 173; Williford v. State (Ga. App.) 185 S.E. 611.

In Commonwealth v. Weingartner, supra, it is stated:

"It is urged also that the indictment should have shown jurisdictional fact that the premises in dispute in the forcible detainer case were situated in Campbell county, else the justice would have been without authority to administer an oath. We think differently. The officer was authorized to administer oaths generally. The subject matter of the controversy was one concerning which the witness could legally be sworn, and about which, it sufficiently appears, he was required to be sworn, and this meets the requirements of the statute. Gen. St. c. 29, art. 8, § 2. The witness might have been sworn by the justice touching any matter, however material, connected with the proceeding, even to locating the premises; and, if he had knowingly and willfully sworn falsely, he is guilty, without regard to whether or not the justice had jurisdiction to render a final judgment."

In People v. Rogers, supra, it was held that it was essential to the crime of perjury that the tribunal before which the false swearing was alleged to have been committed should have had jurisdiction of the subject matter of the cause but that while a decree of divorce granted on false testimony concerning residence was void, the one giving the false testimony was nevertheless guilty of perjury, as the court had general jurisdiction of the subject matter of divorce actions.

In West v. United States, supra, it is said:

"It follows that, although a court may not have jurisdiction to proceed to judgment, it may have jurisdiction to take cognizance of a case in the first instance and until the facts showing lack of jurisdiction appear."

In State v. Ridley (N.C.) 19 S.E. 149, it is stated:

"It may be said generally that where the jurisdiction of the court is voidable by matter de hors, but no defect of authority appears upon an inspection of the record of an indictment, trial, and conviction, such a record cannot be collaterally impeached in a prosecution for perjury for taking a false oath in the course of the trial by showing that the jurisdiction might have been ousted, though it was not defeated."

Our statute defines perjury as follows:

"Every person who having taken an oath that (he) will testify, declare, depose or certify truly before any competent tribunal, officer, or person, in any of the cases in which such an oath may by law be administered, wilfully and contrary to such oath, states any material matter which he knows to be false, is guilty of perjury." (21 O. S. 1941 § 491.)

"It is no defense to a prosecution for perjury that the accused did not know the materiality of the false statement made by him; or that it did not in fact affect the proceeding in or for which it was made. It is sufficient that it was material, and might have been used to affect such proceeding." (21 O. S. 1941 § 496.)

In Smith v. State (Tex. Cr. R.) 20 S.W. 707, it is stated:

"Perjury is a false statement, either written or verbal, deliberately and willfully made, relating to something past or present, under the sanction of an oath, where such oath is legally administered under circumstances in which an oath is required by law, or is necessary for the prosecution or defense of any private right, or for the ends of public justice. An oath, legally taken in any stage of a judicial proceeding, civil or criminal, in or out of court or before a grand jury, is included in the description of this offense."

It is stated in the majority opinion that "it is essential to the crime of perjury that the tribunal before which the false swearing is alleged to have been committed shall have jurisdiction of the subject matter of the cause." I agree with this general rule of law; however, it has no application to the facts in the instant case because the district court of Tulsa county had jurisdiction of the subject matter herein involved. The subject matter is conspiracy to defraud the state (21 O. S. 1941 § 424) which is a felony and within the jurisdiction of a district court of Oklahoma. There is nothing on the face of the indictment to show lack of jurisdiction. The only way the jurisdiction could be defeated was by introducing evidence to show that the venue actually laid in another county. The indictment alleged that the acts were committed in Tulsa county and the crime involved was within the general jurisdiction of the district court of Tulsa county.

As I view the record, the cases cited in the majority opinion do not pertain to the question herein involved. Thomas v. State, 36 Okla. Cr. 209, 253 P. 514, was reversed particularly because of comment made by the trial judge during the trial. However, in pointing out that perjury could only be committed in the trial of a case in a court having jurisdiction of the subject matter, it is stated that the county court has only jurisdiction to try misdemeanors and that the information charging perjury should allege that the crime involved was a misdemeanor within the jurisdiction of the county court. If it were a felony, the county court would not have jurisdiction of the subject matter and, therefore, no perjury could be committed.

In re Dauphin County Grand Jury (Pa.) 2 A.2d 783, 120 A. L. R. 414, cited in the opinion, is not a perjury case and the writ of prohibition sought by petitioners to stop an investigation by the grand jury was refused. There is certainly no language in that opinion that would in any way be applicable herein.

Likewise, the case of Beal v. State, 15 Ind. 378. This was an appeal from a conviction for larceny and was reversed because of an erroneous instruction given by the trial court that larceny was a continuing offense and was complete in every jurisdiction into which the goods are taken. Nothing was said therein which would pertain to the issues in this case.

Also, in Panky v. People, 2 Ill. 228, a conviction for perjury was reversed because the grand jury was without jurisdiction to inquire into the illegal collection of fees by a constable. It was therein pointed out that there was no statute making it a criminal offense for a constable to take illegal fees for the services of process and that, therefore, the grand jury did not have jurisdiction over the subject matter of the inquiry. Clearly, such case would have no force herein because the district court of Tulsa county did have jurisdiction of the subject matter of conspiracy to defraud the state.

In Etheridge v. State, 76 Tex.Crim. 473, 175 S.W. 702, the conviction for perjury was affirmed and the quotation is from the dissenting opinion. However, the quotation is merely a reiteration of the general rule herein above stated with which I am in agreement.

In the case of State v. Gates. 12 S.E. 319, cited by the majority, the perjury was alleged to have been committed on the trial of a motion to tax costs against the prosecutor and the court there held that, since there was no statutory authority for the taxing of costs under such cases, that false swearing made on the trial would not be perjury because the trial court did not have jurisdiction of the subject matter.

In the body of the opinion, the court lays down the test to be applied in perjury cases as follows:

"The test, according to the authorities, seems to be that if, upon the state of facts alleged by the state * * * the court has jurisdiction, there is an issue if they are denied by the defendant, and any false swearing upon a matter material to such issue is perjury, although on the trial it might turn out that upon the truth of the facts as found, there was not any case against the defendant, or none of which the court had any jurisdiction."

This sets forth the rule of law for which I am contending. Under the charge given to the grand jury by the trial judge herein, they were to investigate to determine whether the crime of conspiracy to defraud the state had been committed and whether, if it had been committed, there had been any overt act committed in connection therewith in Tulsa county. This charge to them by the district judge was the triable issue before the grand jury.

Pigg v. State (Tex. Cr. Rep.) 160 S.W. 691, cited in the majority opinion, was an appeal from a conviction for the offense of betting on a ball game and was reversed on appeal on the facts and has nothing at all to do with the question of law involved in this perjury indictment.

Also, in Tindell v. State (Fla.) 128 So. 494, a conviction for perjury was affirmed on appeal and the sole question there was whether an investigation by a grand jury was a judicial proceeding so that false testimony given before the grand jury would be perjury under the statute, which defines perjury as being false testimony given in a judicial proceeding.

The case of Oklahoma Tax Commission v. Clendenning,193 Okla. 27, 143 P.2d 143, involved an interpretation of the uniform state tax procedure act (68 O. S. 1941 § 1454,) which declared that tax returns should be confidential and privileged from inspection and disclosure. The county attorney of Tulsa county was seeking to force the Tax Commission to produce before the grand jury of Tulsa county the income tax returns of several citizens who were not residents of Tulsa county and the Supreme Court of this state merely held that under the provisions of the Uniform Tax Procedure Act the Tax Commission could not be required to produce the tax returns of the named taxpayers, because of the restrictions set forth in said act. That since it was admitted that none of the named citizens resided in Tulsa county and none of said returns were verified in said county that the grand jury of Tulsa county could not be concerned with a violation of the Income Tax Law by the named citizens.

The case of State v. Mitchell et al., 202 N.C. 439,163 S.E. 581, merely held that a grand jury in Buncombe county could not indict a defendant for a crime committed in Wake county. This case was cited and is in point with the decision reached in the conspiracy case (Bennett v. State, 81 Okla. Cr. 206,162 P.2d 581), this day decided.

A few illustrations will demonstrate the practical results of the rule of law adopted in the majority opinion. Assume that a dead man is found on a public highway in Tulsa county. An examination shows that his death had been caused by a blow from some blunt instrument. The grand jury being in session commences an investigation to ascertain whether a crime had been committed and, if so, whether it had been committed in Tulsa county. A witness testifies before the grand jury to facts showing a felonious homicide was committed by "X" in Tulsa county. Based on this testimony, an indictment is returned charging "X" with the crime of murder. At the trial, it develops that the deceased was killed in an adjoining county and that no venue laid in Tulsa county.

Or assume that "C" had murdered the deceased in Osage county. The witness "B", a pal of "C", goes before the Tulsa county grand jury and, to divert suspicion from "C", swears that "D" killed the deceased in Creek county. No indictment is returned in Tulsa county, but a grand jury of Creek county calls the witness "B" before them and he again swears that "D" killed the deceased in Creek county. Based on this testimony, an indictment is returned in Creek county, charging "D" with murder. On the trial, "B" again swears that "D" committed the murder in Creek county, but the facts in the trial so clearly develop that venue laid in Osage county that the case was dismissed. Under the rule of law set forth in the majority opinion, the witness "B" in none of the above illustrations would be guilty of perjury, whether his testimony was given before a grand jury of Tulsa county, or grand jury of Creek county, or even on the trial of the case in Creek county, because the venue of the prosecution was in Osage county. Such a rule of law, in my opinion, is not sustained by precedent, is unsupported by sound reasoning, and encourages the commission of crime.

Three of the defendants in the conspiracy case (Shaw, Perry, and Drake) did not file motions to quash the indictment. If none of the defendants had presented a motion to quash the indictment, but had entered their pleas of not guilty and had proceeded to trial without questioning the venue, would the majority have allowed the petitioner herein to make a collateral attack on the jurisdiction of the district court in the conspiracy case in an original proceeding filed in this court to secure a writ of prohibition? To have done so would have been contrary to the decided cases, but, if they were consistent with their views expressed in the majority opinion, they would have assumed jurisdiction and issued the writ.

The statute herein above cited states that any person having taken an oath in any of the cases in which such an oath may by law be administered contrary to such oath, states any material matter which he knows to be false is guilty of perjury. Nowhere in our statute do we find any provision that the giving of false testimony before a grand jury or on the trial of a case is not perjury, if it develops that the venue of the case is in another county, or that the action is barred by the statute of limitations. It is the duty of the Legislature to define crimes and prescribe punishment, and when an opinion such as is adopted by the majority is promulgated, it amounts to judicial legislating, or reading something into the statute which is, as I construe it, contrary to the legislative intent.

The only sound rule to follow, in my opinion, is to say that if the crime, or subject matter as the term is generally used, is one over which the court who undertakes the investigation has general jurisdiction, then the court may pursue its investigation to ascertain whether it has venue. If a witness is called who testifies to a material matter in connection with the investigation, then, under our statute, it would be perjury even though facts later appear showing that the venue for the crime was in another county than the one where the investigation is being made.

After the grand jury was empaneled and sworn, the district judge of Tulsa county gave them lengthy instructions, a part of which is as follows:

"The court would have you know that under the law of this State, it is mandatory upon every Grand Jury to make certain inquiries and these duties are listed as follows, to-wit:

"1. It is mandatory upon you to inquire into the case of every person imprisoned in the County Jail on a criminal charge, or charges, who has not been indicted or bound over for trial by a committing magistrate prior to this date.

"2. It is mandatory upon you to inquire into the conduct and management of the public prisons in this county, or its subdivisions, and you are entitled to free access to the jails and prisons in making such investigations.

"3. It is mandatory upon you to inquire into wilful and corrupt misconduct in office of public officials of every description in Tulsa County, or any of its subdivisions. In this connection, you are entitled to examination, without charge, of all public records in the County. Such investigation as you may make of the public officials of Tulsa County, and its subdivisions, may include not only the elective officers but all of the appointive officials as well and may include every function and branch of government in this County."

"In addition to the above you have the authority to inquire into all public offenses committed and triable in Tulsa County and to present them to the Court by indictment or accusation in writing."

"In performing your duties, there are some matters which should be called specifically to your attention, and the Court asks you to make relentless examination of them without fear of and without favor to anyone.

"On September 10, 1943, the County Attorney of Tulsa County appeared before this Court, and stated that he had interviewed a number of persons who, in his opinion, had some firsthand knowledge in regard to the adoption and sale of textbooks, in the State of Oklahoma; that he had information to the effect that there had been corruption and dishonesty on the part of some person, or persons, in regard to textbook adoptions in the State of Oklahoma; that he had made a considerable investigation of this matter, and that in his opinion the calling of a Grand Jury would greatly facilitate the investigation. The Court instructs you to inquire into this complaint and to ascertain whether any crime has been committed by any person, or persons, connected with the adoption and sale of textbooks, or any other public offense has been committed with reference thereto in Tulsa County. That does not mean that your investigation should be limited to the particular charges above referred to. Your inquiry may be widened so as to pursue any avenue of information which, in your judgment may lead to the discovery of crime and the proper enforcement of the laws of this State."

Under the above charges to the grand jury, it became within the province of the grand jury to investigate and ascertain whether any fraud had been committed in Tulsa county in connection with the sale or adoption of textbooks. It was just as important to ascertain that no crime had been committed in Tulsa county as to learn that a crime had in fact been committed. Any evidence that would establish either theory was material to the investigation. It was the exact truth of the matter the grand jury had been charged by the court to ascertain. This, of course, could not have been done except by the testimony of witnesses called before them; otherwise, there could be no investigation on behalf of the people and crime would be undetected. Such an investigation is one of the cases in which an oath may be administered and perjury may be committed as defined by our statute. (21 O. S. 1941 § 491.)

Under the sanction of the law, such an investigation would be utterly fatal and even a farce if witnesses may testify falsely and no perjury could be assigned on such corrupt and false testimony. There was sufficient ground for suspicion that a conspiracy to defraud the people of the State of Oklahoma by charging exorbitant prices for textbooks had been formed and that this conspiracy might have extended into every county in the state. Even if it had been no more than a mere suspicion that so grave an offense had been committed, it was sufficient to set the grand jury in motion to inquire into and true presentment make of the matter given them in the charge by the court. The right to investigate did not depend upon the fact that the alleged crime they were about to investigate had actually been committed. It was sufficient that the grand jury had undertaken to investigate an alleged crime to authorize them to call witnesses before them, and, if their testimony given upon such investigation is willfully and corruptly false, upon a matter material to the investigation, then, I think perjury may be assigned upon it. Unless a witness when called before the grand jury in such cases can be compelled to speak the truth, it would be impossible to detect crime. The very object of the investigation is to ascertain whether a crime has in fact been committed and, if so, whether it was committed in Tulsa county.

I do not care to go into an extended review of the facts as to the materiality of the testimony of the petitioner before the grand jury. The trial court heard the evidence on the motion to quash the indictment and ruled adversely to petitioner. On this disputed question of fact, the court ruled that there was sufficient evidence before the grand jury to show that the petitioner had testified falsely upon a material issue. Under the rule of law set forth in Syllabus One of the opinion in the conspiracy case (Bennett v. State, 81 Okla. 206,162 P.2d 581), the judgment of the trial court on that disputed question is binding on this court.

The evidence showed that there was a pretended revision of an arithmetic in 1937, of which the petitioner was co-author, in order to increase the price for which the book was to be sold and that the royalties paid to petitioner as co-author were correspondingly increased. It is conceded that the revision was a farce and a sham and that school patrons in every county of the state were charged an additional six cents per book for this revised edition, which was unnecessary. Under the theory of the state, it was contended that this pretended revision was made as a part of the conspiracy to sell books at exorbitant prices to repay the coconspirator publishing companies for the bribe money which they paid in order to fix the adoptions. It was the contention of the state that the petitioner, realizing that the revision of the Bennett-Conger-Conger arithmetic was a sham and a fraud, sought to disclaim any knowledge of the proposed revision and testified before the grand jury that he had never discussed the proposed revision with any person prior to the time it was made. Harry Haun, agent for the American Book Company, who printed the revision, swore before the grand jury that he had talked with the petitioner about the proposed revision on two occasions before it was made. A. L. Crable, also, disputed the testimony of petitioner on this issue. However, I am not concerned in this dissent over disputed questions of fact and personalities involved, but I am deeply concerned over the adoption by the majority of a rule of law which will be applied in perjury cases in the future, a rule which I consider is based on a misconception of the issue which confronts us.

It appears to me that so long as the Constitution and statutes of this state recognize the grand jury as an inquisitorial body through which indictments for crime may be presented against an accused, that this court should not read into the law anything which might circumscribe their action.

If a witness testified falsely to gain an advantage to himself, to deceive and confuse the investigating body and conceal the facts from the public, the plain words of our statute on perjury and public policy which called for its enactment alike demand that the telling of such deliberate lie completes the crime.

As to the statement in the majority opinion that "the facts here clearly show that the grand jury of Tulsa county knew at the time the perjury indictment was returned that the crime which they were attempting to investigate, if committed, was committed in Oklahoma county and not in Tulsa county," I cannot agree.

The textbooks which were adopted as a result of the bribes paid by the publishing companies were sold in Tulsa county as well as all other counties in the state and the grand jurors were advised by the county attorney that such sales constituted overt acts in furtherance of the conspiracy. I do not understand how the majority can say that the jurors, composed of laymen, knew that the crime was committed in Oklahoma county and not in Tulsa county when distinguished attorneys who appeared before us presented many authorities to sustain their respective contentions and the matter has been earnestly considered by this court for several weeks before any of the members of the court came to a definite conclusion as to the legal question involved.