United States v. Wood (39 U.S. 430)/Dissent Thompson

Mr. Justice THOMPSON, dissenting.

The question certified in the record is, whether it was necessary, in order to convict the defendant of perjury, to produce, on the part of the prosecution, at least one living witness, corroborated by another witness, or by circumstances, to contradict the oath of the defendant.

The rule, as we find it laid down in the elementary books on this subject, is, that to convict a party of the crime of perjury, two witnesses are necessary to contradict him as to the fact upon which the perjury is assigned: and the reason assigned for the rule is, that if one witness only is produced, there will only be one oath against another. This rule, however, in the early adjudged cases, was so modified as to require but one living witness, corroborated by circumstances, to contradict the oath of the defendant; and with this modification the rule has remained until the present day.

In the present case, the fact on which the perjury was assigned related to the actual cost of the goods, at the time and place of exportation. This was a simple question of fact, susceptible of proof by witnesses, like any other matter of fact. There was nothing, therefore, growing out of the nature of the inquiry, that rendered the proof by witnesses impossible, so as to take the case out of the rules of evidence, in relation to the crime of perjury. No living witness was produced to contradict the oath of the defendant at the customhouse, as to the original cost of the goods. His letters and certain invoice books were produced to sustain the indictment; and these might have been sufficient to warrant the jury in convicting the defendant, if such evidence is sufficient to convict a party of the crime of perjury, without the production of at least one living witness. It is, as has been already mentioned, laid down in the books as a technical rule in perjury, that there must be at least one witness and corroborating circumstances to convict of this crime: that there must be oath against oath, as to the corpus delicti.

When the books speak of a witness, they always mean oral testimony. It would hardly be considered as correct legal language, to call a letter of the defendant a witness against him. It was evidence, but not evidence by a witness. The rule, as originally laid down in the elementary treatises on evidence, requiring two witnesses to contradict the party on the matter assigned as perjury, was so modified or relaxed as not to require two witnesses to disprove the facts sworn to by the defendant. But if any material circumstances are proved by other witnesses, in confirmation of the witness who gives the direct testimony of perjury, it may turn the scale, and warrant a conviction. And in England one case occurred, as reported in a note in the seventh volume of the English Common Law Reports, page 306, where the evidence consisted of the contradictory oaths of the party accused, upon the same matter of fact in which the perjury was assigned. It was held, that in such case there was oath against oath, and the perjury might be assigned upon either; and that it might be left to the jury to judge of the motive. The authority of this case, however, has been very much doubted. But the present case does not come within that rule, even if we are disposed to follow the English Courts on that subject; for the letters of the defendant cannot certainly be said to be evidence under oath, so as to charge him with contradictory oaths on the fact assigned as perjury. Rules of evidence are rules of law, applicable to the rights of persons as well as to the rights of property; and parties are entitled to have their rights tested and decided by such rules, as much in one case as the other. This rule, however, in perjury, being a technical rule, may in many cases be difficult if not impracticable to be carried into execution. If it falls within the proper province of the Court entirely to dispense with the rule, and put the evidence in perjury upon the same footing as other criminal offences, I should not be disposed to dissent from it; if, as a new rule, it was made to operate prospectively. But if it is intended to affirm the doctrine urged at the bar, that no such rule of evidence ever existed, as to require in the case of perjury at least one living witness, and circumstances in corroboration of his oath, in contradiction to the party charged upon the matter assigned as the perjury; it would, in my judgment, be at variance with a rule universally laid down in all the elementary treatises on the subject of evidence; and as yet never dispensed with, or ever called in question in any adjudication that has fallen under my notice. And that this rule still exists in the English Courts, is shown by the late case of Rex vs. Mayhew, 6 Carr. and Payne, 315, decided in the year 1834. The perjury in that case was alleged to have been committed by the defendant (who was an attorney) in an affidavit made by him, to oppose a motion made in the Court of Chancery on behalf of the prosecutor, to refer the defendant's bills of costs for taxation. To prove the perjury, one witness was called: and in lieu of a second witness, it was proposed to put in the defendant's bill of costs, delivered by him to the prosecutor. It was objected that this was not sufficient, as the bills had not been delivered by the defendant on oath. But Denman, Chief Justice, said, 'I have quite made up my mind that the bill delivered by the defendant is sufficient evidence, or that even a letter written by the defendant, contradicting his statement on oath, would be sufficient to make it unnecessary to have a second witness.'

There was no intimation here, that a letter, or any number of letters, from the defendant, contradicting his statement under oath, would dispense with the technical rule in perjury, requiring at least one witness, and corroborating circumstances. The question was, as to what circumstances or evidence would dispense with a second witness.

In the present case, it may be difficult and perhaps impracticable to procure any living witness to contradict the oath of the defendant. But it is more congenial with the humane principles of our criminal law, that a guilty man should escape, than to convict him upon evidence heretofore considered as insufficient, according to what is admitted to have been the settled rule of law. Answering the question put in the record in the negative, is abolishing that rule and introducing one entirely new; and putting the crime of perjury on the same footing as any other criminal offence, with respect to the evidence necessary to convict the accused. If there are any great public considerations calling for such an innovation upon the rule of evidence in cases like the present, let it be altered by the proper tribunal, and under the general rules of evidence applicable to other criminal cases. The evidence derived from the letters of the defendant, is perhaps the best evidence the nature of the case will admit of. But it is an entire misapplication of this general rule to the present case, if there is a special and technical rule in the case of perjury that there must be at least one living witness, and corroborating circumstances, to convict of that crime. I do not feel myself authorized to dispense with what I understand to be admitted, the heretofore settled rule of evidence, which I consider a rule of law, in the case of perjury; and to apply this new rule to the present case by giving it a retrospective operation.

I am accordingly of opinion, that the question put in the record, ought to be answered in the affirmative.

Note.-1 Roscoe's Crim. Law, 28. 685. 1 Phil. Ev. 151. 2 Russel's Crim. Law, 479. 3 Starkie's Ev. 1144. Archbold's Crim. Plead. 157. 2 Har. Pl. C. ch. 46, sec. 2. 4 Blackstone's Com. 358. 10 Mod. 193. 6 Cowen, 120. 6 Carr. and Payne, 315. 7 Com. Law Rep. 306, and notes. 25 Com. Law Rep. 415. 13 Petersdorff, Ab. tit. Perjury, E. Dane, Ab. Ch. 210, art. 3, sec. 4. Sid. 418. Cited, 16 Viner, Perjury, K. 1 Nott and M'Cord, 547.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of New York, and on the point and question on which the judges of the said Circuit Court were opposed in opinion, and which was certified to this court for its opinion, agreeably to the act of Congress in such cases made and provided, and was argued by counsel. On consideration whereof, it is the opinion of this Court, that in order to convict the defendant of the crime charged in the indictment, it is not necessary on the part of the prosecution, to produce a living witness, if the jury shall believe the evidence from the written testimony sufficient to establish the charge, that the defendant made a false and corrupt oath, as to the cost of the goods imported in the Sheridan, enumerated in the invoice upon which the defendant made an entry by taking the owners' oath at the customhouse. Whereupon it is ordered and adjudged by this Court, that it be so certified to the said Circuit Court, accordingly.