State v. Gallaugher

Deemer, O. J. The defendant and one Charles Ilolada were jointly indicted for the crime of murder in the first degree. It was charged that they murdered one James Gallaugher, who was defendant’s husband. Defendant was granted a separate trial, and as a result thereof was acquitted. Ilolada thereafter pleaded guilty to the crime of murder of the second degree, and was sentenced to the penitentiary for 379 life. Defendant was a witness on hex own behalf in the murder trial, and after her acquittal of the charge she was indicted by the grand jury of Johnson county for the crime of perjury. It was on this indictment that she was convicted, and from the judgment pronounced on the verdict returned therein she appeals. The indictment charges that defendant knowingly, falsely, and corruptly testified on the murder trial as follows : “That the said Sarah Ellen Gallaugher never told Dr. Delano that her revolver was taken on the night of the murder of said James Gallaugher; that the said Sarah Ellen Gallaugher swore that she never planned or conspired with any one as to the manner and means of killing James Gallaugher; that she, the said Sarah Ellen Gallaugher, did not meet Charles IJolada near the James Gallaugher house on the night of said murder; that she, the said Sarah Ellen Gallaugher, occupied the inside of the bed on which James Gallaugher was sleeping at the time the said James Gallaugher was shot and killed; that she, the said Sarah Ellen Gallaugher, swore at said trial that slie never said before the coroner’s jury that her revolver was somewhere about the place on the night of said murder; that she, the- said Sarah Ellen Gallaugher, swore 'on the trial of said cause that she had never had sexual intercourse with Charles Ilolada at any time or place.” The trial court, in its instructions,' withdrew the charge that defendant testified falsely that she occupied the inside of the bed on which James Gallaugher was sleeping at the time he was killed, and the further charge that she testified falsely that she never said before the coroner’s jury that her revolver was somewhere about the pl$ce on the night of the murder, but did submit the other assignment of perjury charged in the indictment. In answer to interrogatories submitted by defendant’s counsel, the jury returned the following special verdict, to wit: “Do you find that the defendant, Sarah Ellen Gallaugher, falsely testified that she had not conspired with any one to kill and murder her husband, the said James Gallaugher? Answer. No. "W. 3L Saxton, Foreman. Do 380 you find that the defendant, Sarah Ellen Gallaugher, falsely testified that she did not have sexual intercourse with Charles Ilolada? Answer. Yes. W. K. Saxton, Foreman. Do you find that the defendant, Sarah Ellen Gallaugher, falsely testified that she told Dr. Delano that her revolver was taken on the night of said murder ? Answer. No. W. K. Saxton, Foreman. Do you find that the defendant, Sarah Ellen Gallaugher, falsely testified that Ye had not met the said Charles Ilolada at or near the Gallaugl'er homestead on the night of the murder ? Answer. No. W. K. Saxton, Foreman.” It also found the defendant guilty of the crime charged, and upon that verdict judgment was pronounced. While a great number of points are argued, but one need be considered on this appeal, and that relates to the sufficiency of the indictment. It is well understood that an indictment for perjury should traverse the truth of the alleged falso testimony. The Tule, as generally expressed, is that the indictment must proceed by particular averments to negative that which is false, contradicting the matter alleged to have been falsely sworn to in express and specific terms. 18 Am. & Eng. Ency. of Law, section 915, 918, 919; McClain’s Criminal Law, section 880; Archibald, Criminal Practice and Pleading (8th Ed.) page 1833; Com v. Compton, 18 Ky., 479 (36 S. W. Rep. 116); State v. Mace, 76 Me., 64; Thomas v. State, 51 Ark. 138 (10 S. W. Rep. 193). The allegation in this indictment is that “defendant well knew sho liad criminal intercourse with Charles Ilolada,”. etc., and that “said Sarah Ellen Gallaugher, with full knowledge of their falsity,” etc. Is this the equivalent of a statement that . “-whereas in truth and in fact she bad had intercourse with the said Charles Ilolada, as she well knew,” etc. The books give no uncertain answer to this interrogatory. See cases heretofore cited, and in addition the following: Com. v. Porter, 17 Ky., 554 (32 S. W. Rep. 138); Com. v. Wright, 16 Ky., 257 (27 S. W. Rep. 814); Morrill v. People, 32 Ill., 499; Perdue v. Com., 96 Pa. 311; Ferguson v. Com., 8 Ky. 257 (1 S. W. 381 Rep. 435); State v. Nelson, 74 Minn. 409 (77 N. W. Rep. 223); Turner v. State, 30 Tex. App. 691 (18 S. W. Rep. 792); Com. v. Monahan, 9 Gray, 119; Henderson v. People, 117 Ill. 265 (7 N. E. Rep. 677); Gibson v. State, 44 Ala. 17; Thomas v. State, 54 Ark. 584 (16 S. W. Rep. 568); Com. v. Weingartner, 16 Ky. 221 (27 S. W. Rep. 815). Most, if not all, of these cases axe directly in point, and expressly hold that an allegation such as the one found in the indictment in the case now before us is insufficient. The one last cited is particularly strong in its reasoning. It is there said: “An indictment, to be sufficient, for perjury, must negative specifically the truth of the alleged false statement, and where this has not been done, fit was said at common law/ the authorities hold such an indictment insufficient, and we have not been able to find a single precedent, either at common law or in our own state, where the assignment has been dispensed with.” In that case the charge was that the statement made by the defendant was “willfully, ' deliberately false, and that defendant knew the same to be false when he made it.” In Archibald on Criminal Pleading (Pomeroy’s Notes, 8th Ed.) 1733, it is said, “The indictment must negative the matter sworn to by special averment, whereas in truth and in fact,” etc. We have only found one case holding to the contrary,' and that is People v. Clements, 107 N. Y. 205 (13 N. E. Rep. 782). We should be glad to follow that case, in view of the provisions of our Code, section 5290, which provides, in effect, that no indictment shall be held insufficient for any matter which was formerly deemed a de-’ feet, but which does not tend to prejudice the substantial rights’of the defendant upon the merits, and would do so, but for the fact that section 5296, which relates specifically to indictments for perjury, provides, in effect, that indictments for this offense must contain “proper allegations of the falsity of the matter on which the perjury is assigned.” In order to determine what are proper allegations of the falsity of the matter, we must look to the law as it existed when this statute was framed; in other words, to the common law and to 382 the recognized forms thereunder. Turning to that law, we -find that there must be a special traverse of the matter alleged to have been testified to; that is to say, the assignment should have been, “whereas in truth and in fact the defendant had had intercourse with the said Charles Holada, as she well knew,” etc. It is only by the merest inference or intendment that we find any such charge in this indictment, and even under our liberal system of criminal pleading it is well settled that an indictment cannot be aided by intendment or inference. State v. Potter, 28 Iowa, 554; State v. Clark, 80 Iowa, 517; State v. Jamison, 110 Iowa, 341. Averment of knowledge of falsity is not, in general, necessary except where the alleged false testimony was given upon information and belief. State v. Raymond, 20 Iowa, 582. Without further extending this opinion, it is sufficient to say that the indictment does not meet the requirements of the law, and that defendant’s motion in arrest of judgment, based on this defect, should have been sustained. — Reversed.