People v. Ashbrook

Mr. Justice Dunn delivered the opinion of the court: Charles Ashbrook was convicted of perjury in the circuit court of Champaign county and seeks a reversal of the judgment for error of the court in overruling his motion in arrest of judgment on the ground of the insufficiency of the indictment. The indictment consisted of two counts. The objections made to it are, that neither count describes the character of the offense charged in the proceedings in which the alleged false testimony was given or the nature of such proceedings; that there is no averment that the alleged false testimony was material to the point in issue in those proceedings and no showing on the face of the indictment that the alleged false testimony was material to the point in issue; that there is no averment that the false statements Avere made feloniously or that the defendant knew they were false; that the second count states that the former proceeding was tried before the court, but does not state that a jury was waived or whether the charge was a felony or a misdemeanor. The second count of the indictment alleges that “Charles Ashbrook, late of said county, on the eighth day of February, in the year of our Lord one thousand nine hundred sixteen, at and within the said county of Champaign and State of Illinois aforesaid, being the defendant in a certain proceedings entitled ‘The People of the State of Illinois against Charles Ashbrook/ which was a proceeding charging the defendant, Charles Ashbrook, with the unlawful and illegal sale of intoxicating liquor at and within the limits of the tOAvn of Champaign, in Champaign county, Illinois, which said proceedings was pending and was heard in the circuit court of Champaign county, Illinois, on the eighth (8th) day of February, in the year of our Lord one thousand nine hundred sixteen, (1916,) the same being one of the regular judicial days of the circuit court of Champaign county, Illinois, said court having lawful authority to try said cause and having jurisdiction of the parties to said cause, and upon the hearing of said cause, wherein the People of the State of Illinois was plaintiff and Charles Ash-brook was defendant, it became and was a material matter in issue in said cause as to whether or not the said Charles Ashbrook, said defendant as aforesaid, had sold any beer, wine or whisky or any intoxicating liquor at and within the limits of the town of Champaign, in Champaign county, Illinois, at any time within eighteen (18) months prior to the twenty-seventh (27th) day of January, in the year of our Lord one thousand nine hundred sixteen,” etc. The purpose of describing in the indictment the proceeding in which the perjury was committed is to show that it was a judicial proceeding of which the court had jurisdiction and that the false testimony was material. A general description of the proceeding is sufficient and it need not be set out in detail. The indictment shows that the defendant- was charged in that proceeding with the illegal sale of intoxicating liquors in the town of Champaign, and it was not necessary to set out the charge in that case with any greater particularity. There are various misdemeanors created by the statute to which this description may apply, but it is not necessary to set out which particular section of the statute was charged to have been violated in order to advise defendant of the nature of the charge of perjury against him. The circuit court has jurisdiction of all misdemeanors and therefore had jurisdiction of this charge. It had jurisdiction to try the defendant for a misdemeanor without a jury, and its jurisdiction was not affected whether a jury was waived or not. If the defendant was tried by the court without a jury having been waived, as provided in the statute, and convicted of the misdemeanor charged, his conviction was erroneous but not void, and if there was corrupt and willful false swearing in a matter material to the point in issue on such trial, it was perjury. It is argued that the indictment in this case does not state the issue in the proceeding in which the perjury was committed, and the testimony has not been set forth in such a way that this court can see, from an inspection of the indictment, that the alleged false testimony was material to the point in issue. There are two methods of averring the materiality of the testimony upon which perjury is assigned : one by setting forth the issue and the matter sworn to, so that the court can see that the testimony was material; the other, by stating the particular testimony charged to be false, with the allegation that such testimony was material. An indictment which charges that the testimony alleged to be false was material to the issue on the trial of the cause charges sufficiently that the evidence was “in a matter material to the issue or point in question.” (People v. Threewitt, 251 Ill. 509.) In Kiser v. People, 211 Ill. 407, the indictment, after stating the court in which the cause was pending, the names of the parties and that the charge was unlawfully keeping a gaming house and for unlawfully gaming, averred that “it then and there became and was a material question whether the said John Kizer told one Dennis Lyons,” on, etc., “that he, the said John Kizer, was the proprietor of a certain gaming house,” etc. Many decisions are considered in that opinion, the allegation was held sufficient and the indictment was sustained. The language in the second count of the indictment in the present case is, that “it became and was a material matter in issue in said cause as to whether or not the said Charles Ashbrook” had sold any intoxicating liquors within the limits of the town of Champaign, etc. “A material matter in issue in said cause” is not different from a “material question.” It was said in Young v. People, 134 Ill. 37, that the defendant may have sworn falsely in a material matter and at the same time not have sworn falsely in a matter material to the issue; and this is true because the material matter may not have been in issue, but it cannot be true that the defendant swore falsely on the trial as to a material matter in issue and at the same time did not swear falsely in a matter material to the issue. The second count of the indictment avers the defendant’s knowledge of the falsity of his testimony, for in that count, after averring that the defendant testified that he had not sold any intoxicating liquor in the town of Champaign, it is averred that in truth and in fact, as he then and there well knew, he had sold intoxicating liquor in the town of Champaign within eighteen months prior to January 27, in the year of our Lord one thousand nine hundred sixteen. It is insisted that the indictment is bad because in neither count is it averred that the alleged false testimony was feloniously given. It was held in Ervington v. People, 181 Ill. 408, that an indictment for a felony must allege that the act was done feloniously. That was an indictment for an assault with intent to murder, which was a felony at common law. In Bolen v. People, 184 Ill. 338, (an indictment for incest,) it was contended that the indictment must state that the offense was feloniously committed, but the objection was not sustained for'the reason that incest is a statutory offense and not a felony at common law. The case of Ervington v. People, supra, was cited, the court saying that the rules were different where the offense was a felony at common law. Perjury was not a felony at common law. (30 Cyc. 1399; 22 Am. & Eng. Ency. of Law,— 2d ed.—682; 2 Bishop on Crim. Law,—2d ed.—sec. 885.) The indictment was in the words of the statute, “willfully, corruptly and falsely,” and every indictment is to be deemed sufficiently technical and correct which alleges and charges the offense in the language of the statute creating the offense. We have considered only the second count. ■ One good count is enough to sustain the judgment.' The motion in arrest was properly overruled, and the judgment of the circuit court will be affirmed. Judgment affirmed.