Commonwealth v. Stern , 58 Pa. Super. 591 ( 1915 )

Opinion by

Trexler, J.,

There are nineteen assignments of error. The first eleven may be considered together as they all relate to the same subject-matter.

1. The stenographer who took the notes of testimony at the trial at which the defendant is charged to have committed perjury, when called as a witness, was permitted- to use his transcript to refresh his memory as to what had been testified at the former trial. The appellant argues that as the transcript was not certified by the stenographer and the trial judge, it could not be used. The Act of May 11, 1911, P. L. 280, sec. 4, provides after certain preliminary steps are taken, including notice to the parties interested, that the transcript duly certified, “Shall be filed of record in the case and shall be treated as official and part of said record for the purpose of review upon appeal and shall be considered as prima facie accurate whenever thereafter offered in evidence in the same or other proceedings, without the necessity of calling the stenographer as a witness to prove the same.” The evident purpose of the above section is to relieve litigants of the necessity of calling the stenographer as a witness. When the notes are duly certified they become part of the record and need not be further proven. The language employed shows that the purpose is the authentication of the whole record. It makes no provision as to part of the record. It does not contemplate a filing of part of the testimony. The certified transcript is the complete record of the testimony.

In the case before us no transcript had been certified and filed, and the notes which the witness used were a transcript of the testimony of two witnesses only. There is nothing in the act which makes the transcript of the testimony the only means of proving the testimony, nor does it make it the best evidence. All the act provides is that it shall be- considered prima facie correct.' In this the act differs from former legislation upon this subject. The Acts of May 24, 1887, P. L. 199; May 8, 1876, P. L. 140, and May 15, 1874, P. L. 182, provided that the notes were to be official and the best authority in case of dispute and to be used whenever their use was required. The act of 1876 provided that the notes were to be transcribed whether ordered by the court, or not: Chase v. Vandergrift, 88 Pa. 217.

The stenographer who was called testified that the notes were correct; that the transcript was made by some one else, but that he had carefully gone over the notes and transcript so that he was able to testify to their accuracy. All that is necessary unless there is a statutory provision to the contrary is that the authenticity of the testimony be duly established by proper proof under oath: Miles v. O’Hara, 4 Binney, 108; Edwards v. Gimbel, 202 Pa. 30. The appellant did not question the correctness of the testimony but objected to the method employed in its production. Later on in the case the defendant admitted that the language used in the indictment and to which the witness testified, using his notes as a memorandum, was correct, with the exception of one word and as to that he had the benefit of his denial which went to the jury with the rest of the testimony. We see no error in the stenographer refreshing his memory from the notes which he took and therefore the first eleven assignments of error are overruled.

2. A witness was called and the testimony given by the defendant at a former trial was read to him and after its reading the witness was asked whether the testimony was true or false. The objection to this was that the witness in his answer expressed an opinion and gave his conclusion. We do not think the objection is serious. The gist of the charge of perjury was the falsity of the statement made by the defendant. Naturally in order to contradict the statements, the attorney for the commonwealth read to the witness what defendant had said upon the former trial at which the perjury was alleged to have been, committed. Standing alone, the answer of the witness that the testimony was false might be regarded as a mere conclusion, or expression of opinion. It, however, was followed by a narration of facts within his personal knowledge of the transaction involved. Certainly when testimony is in the line of specific contradiction of a witness, some reference must be made to the testimony which is sought to be contradicted, and the testimony of the witness taken in its entirety was a statement of the facts which were vital to the issue trying and were clearly relevant. No function, of the jury was usurped. The grounds of the witness’ belief were clearly stated and the jury was enabled to judge as to the correctness of his statement. In this we think there was no error.

Assignments numbers twelve to sixteen, inclusive, are therefore overruled.

3. Part of the charge of the learned judge to the jury was in the following words, “We do not submit these counts with the direction that you find them to relate to material testimony. We submit the question to you, to be determined from the evidence, whether or not the testimony embraced in these several counts was material to the issue in the cause which was upon trial, and in which this testimony was given.”

The question of the materiality of the testimony should have been decided by the court. As stated in Wharton’s Criminal Law (11th ed.), page 1700, the proper course is for the court, assuming the evidence to be true, to determine whether the particular article of evidence is, or is not material. Any dispute of facts is for the jury. The materiality of the testimony assigned as false is entirely a question of law for the court: 30 Cyc. 1456; 22 Am. & Eng. Ency. of Law, page 688; Steinman v. McWilliams, 6 Pa. 170; Com. v. Bossard, 2 Kulp, 113, Rice, P. J.

The court having erred in submitting the materiality of the testimony to the jury, the question, remains, should the court have decided the question in the affirmative? If the testimony was immaterial, an essential ingredient of the crime would be lacking, and the defendant would be exonerated. If, however, we conclude that the testimony was material, the error of the court in referring the matter to the jury did no harm to the defendant, for if the question is left to the jury and they determine it as the court should have done there is no error: 30 Cyc. 456; 22 Am. & Eng. Ency. of Law (2d ed.), page 688, and cases there cited.

. There remains therefore the question as to whether the testimony alleged to have been falsely given by defendant was material, and in pursuing' this inquiry we may confine ourselves to the fourth and sixth counts of the indictment as it was only upon these two counts that the verdict of guilty was rendered.

As was said in the case above referred to, Commonwealth v. Bossard, 2 Kulp, 113, “It will be found extremely difficult to formulate an exact and unvarying test. of. the materiality of testimony assigned for perjury. In general terms it may be said that testimony may be assigned for perjury, either where it tends to directly prove or disprove one side or the other in the main issue, or where under, the established rules of evidence it directly tends to do so by crediting or discrediting other evidence, or testimony of another witness. In the former case the materiality may be frequently determined by reference to the pleadings without regard to the testimony; in the latter case the testimony being given upon some secondary issue, of fact arising on the trial of the case, -its materiality can only be determined by an examination of the other testimony which it is intended to corroborate or contradict. In Wharton’s Criminal Law (llth ed.) page 1700, is found the following, “False swearing to matter which however. valueless and ineffectual ultimately, has yet some prima facie, though illusory weight is perjury, for by this.injury and annoyance to another may be at least transiently wrought.” “A witness’s answers on his own cross-examination are material and may be assigned for perjury however discursive they may be, if they go to his credit. This applies to his denial that he had previously said certain things:” Wharton’s Criminal Law (11th ed.), page 696.

Tested by these standards was the testimony given by the defendant material? Should the court have so ruled? Suit had been brought on a mortgage. The issue on said suit is set out in the indictment, being that “said mortgage being signed by Abraham Citron and Lena Citron, his wife, in favor of John J. N. Fletcher, and assigned to Louis M. Harris, who furnished the money upon said mortgage and paid the same to the said Bernard Stern, who was authorized by the said mortgagors to borrow $6,750 on said mortgage from the said Louis M. Harris, for the purpose of paying the said Bernard Stern moneys alleged to have been advanced by him and paid on account of a building and alterations to an old building upon the mortgaged premises, which premises were owned by the mortgagors as tenants by the entirety; the issue also being whether the said Bernard Stern received the consideration money for said mortgage, whether he had authority to act as the authorized agent of the said mortgagors, with authority to retain said moneys in liquidation of said mortgagors’ indebtedness to him, or to pay their debts, and whether any moneys were due the said plaintiff upon said mortgage.”

. In the fourth count of the indictment, the question of the authority of Stern to act for the mortgagors was the subject-matter of the false statement. This certainly was material. If he was their agent and received the money for them in furtherance of his agency, his act became their act and they were bound by it. As to the sixth count it is alleged that the witness had given his written statement and affidavit as to the property he owned and had submitted this.to the intending purchaser of the mortgage for the purpose (as set forth in the statement) of inducing him to take an assignment of the same. Ordinarily such a statement would have nothing to do with the issue as to whether the mortgage was due and owing, but when the defense is bad faith and fraud in the procuring, and transferring of the mortgage and the intermediary is called to prove the absence of consideration and the presence of fraud, his written declaration and affidavit would be material as throwing light upon the purpose of his negotiations, his interest in the matter and also as to the credit to be attached to his testimony. Even if we concede that the materiality of the testimony may be doubtful, the judgment would not be reversed. The defendant was found guilty on two counts of the indictment, each one presenting different phases of the same offense. He could not have been sentenced on each count. They did not charge separate offenses. They were only convenient divisions of the false testimony which the defendant was charged to have given under the one oath which was administered to him. A general sentence was imposed, as but one crime was committed. This sentence was supported by the verdict of guilty on the fourth and sixth counts and were we to hold that he was not properly convicted on the sixth count, it would not affect in any manner the sentence, as the fourth count would still remain to support it: Johnston v. Com., 85 Pa. 54.

This disposes of the seventeenth^ assignment of error which is overruled.

The eighteenth assignment is as to misquotation of the testimony on the part of the trial judge. A reading of the testimony in the case convinces us that the assignment is without merit.

The nineteenth assignment of error as to the instruction of the trial judge is in the following words, “The whole case is for you. You are the judges of the law as well as of the facts, but you ought to accept as the law the instructions that the court has given you.” We do not think that this instruction of the court was erroneous. It is in line with the case of Kane v. Com., 89 Pa. 522, and Com. v. McManus, 143 Pa. 64, and a number of other cases. The word, “ought,” charged the jury with a duty of accepting the law as laid down by the court, and the instructions were within the decisions above referred to. See also Com. v. Goldberg, 4 Pa. Superior Ct. 142 (150). The nineteenth assignment of error is overruled.

We think the. case was tried with due respect to the rights of the defendant and there is no reason why it should be sent back for retrial. As stated in Brown v. Com., 78 Pa. 122, our province is not to look for errors merely in order, to reverse but to look for merits in the cause of reversal. A careful consideration of the whole' case convinces us that every substantial interest of the defendant was properly guarded and the verdict fully sustained by the evidence.

The judgment is affirmed, and it is ordered that the defendant, appellant, appear in the court below at such time as he may be there called, and that he be by the court committed until he has complied with the sentence or any part of it that had not been performed at the time this appeal was made a supersedeas.