Judgment reversed and new trial ordered.
Stover & Martin, Tucson, for appellant.
Fred O. Wilson, Atty. Gen., Robert Morrison, Pima County Atty., Tucson, for appellee.
Kelly, Superior Court Judge. Udall, C. J., and Stanford, De Concini and La Prade, JJ., concur. Phelps, J., being unable to take part in the case, the Honorable Henry C. Kelly, Judge of the Superior Court of Yuma County, participated in his stead in the determination of this appeal.
Kelly, Superior Court
[74 Ariz. 403] The defendant appeals from a judgment of conviction of perjury. The trial was upon an indictment by the grand jury of Pima county and the charge was that the perjury was committed in the making of false answers to questions propounded to defendant while he was a witness at the inquisition being conducted by it.
The assignments made upon the taking of the appeal were two, viz., (1) that in the form in which the indictment was returned no public offense was stated in that there was lacking an averment that the allegedly perjurious testimony was to a material matter; and (2) that the trial court erred in allowing an amendment of the indictment, over objection, correcting the defect upon an essential matter of substance.
During the course of the appeal appellant has called attention to a further alleged
error which he deems to be a fundamental one and asks this court to take cognizance of it even though the point now raised was not originally presented by due assignment. This alleged error was procedural, and the vice complained of is that nowhere in its instructions to the jury did the trial court mention the statutory "quantitative" rule, peculiar to an extremely limited number of criminal offenses, and which as to perjury requires for conviction the testimony of two witnesses, or of one witness and corroborating circumstances, Section 44-1812, A.C.A.1939, but did give an instruction that the jury could convict upon circumstantial evidence alone. The fault, if any, of the instruction given does not arise from any defect in the definition of circumstantial evidence, or of the conclusive quality it must be found to possess to support a conviction; but the question posed is whether the instruction is proper to be given as a sole standard to the exclusion of the statutory requirement applicable to the cause.
No request is shown by the transcript to have been made by defendant's counsel to instruct upon the "quantitative" rule set forth in the penal code. To the contrary there are some indications in the transcript that counsel for defendant did not wish [74 Ariz. 404] this instruction to be given. In the fragmentary report of oral proceedings in chambers before a disposition of requests was made, the State's counsel made the statement -- "Let the record show that he did not want instruction No. 2 Sec. 44-1812." But there is nothing either before or following this interjection to indicate that the court heard the statement, and the record cannot be made by a statement of one alone of counsel without an acceptance of it, or without the statement of the court upon it. We must take the situation therefore as one where a request was not made, either to give or not to give the particular instruction, and the question becomes one as to whether the failure to state to the jury the statutory measure upon the quantum of proof required to support a conviction for perjury is error, and if so whether it is fundamental error.
The answers to these questions can be arrived at only from a consideration of the rights impinged upon by the omission to charge and by the charge given. The very recent case of State v. Betts, 71 Ariz. 362, 227 P.2d 749, answers both questions in the affirmative. In view of the undoubted far-reaching implications of that holding, and despite the fact that it was of the very essence of the opinion and entitled to be accepted at face value as authority, it has not been dogmatically relied upon as a precedent sufficient unto itself to direct the result to be reached here. A review of numerous authorities from many jurisdictions will confirm the statement that the rule of the Betts case is sound and correct by all of those tests common to be applied in the absence of unanimity of decision; and contrary results have usually been reached because of features peculiar to the case or to the procedural practices of the jurisdiction. One of such cases, illustrative of the distinction, is Goins v. United States, 4 Cir., 99 F.2d 147, in which it was held, one judge dissenting, and certiorari dismissed, 306 U.S. 622, 59 S.Ct. 783, 83 L.Ed. 1027, upon a collateral point, that the failure to give to the jury the "numbers" rule was not reversible error when the proofs, in large part documentary, were overwhelming. Another, mentioned merely by way of illustration, is Scott v. State, 77 Ark. 455, 92 S.W. 241, in which the omission to charge was held not ground for reversal because a request had not been made, there being no duty upon the court without it.
The numbers rule, so called by Wigmore, is said by him to be an exotic adopted from the Roman system and it is criticised by him as unsound, futile, and inconsistent with Anglo Saxon principles of jurisprudence in this area of the law of evidence. He reports, Wigmore on Evidence, 3rd, Section 2033, with apparent approval, Napoleon's epigram when he abolished the rule in establishing the law for the Rhine province: "Thus one honorable man by his testimony could not prove a single rascal guilty; though two rascals by their testimony could prove an honorable man guilty." [74 Ariz. 405] It may be remembered, however, that this eminent author approaches his subject with the outlook of the philosopher, sometimes more concerned with the discovery and declaration of truth than with practical considerations which also must be taken into account in the administration of justice and which experience commends as wise and salutary. The reason for the rule is policy; it is for the protection of the witness from the reprisal he could be subjected to if he could be condemned by oath against oath, and it thus encourages the elicitation of truth. A similar rule applicable to treason is not found to encourage the offense, but it does assure against abuses such as those of the Star Chamber.
The case of Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495, 156 A.L.R. 496, not only represents the rule in the federal system upon a federal statute comparable to our Section 44-1812, A.C.A.1939, but it typifies as well the rule in practically all of the states which have similar legislation. In this case the court was asked to reexamine and abandon the ancient rule which in practical application requires the court to instruct the jury upon the "quantity" of proofs fixed by legislation as necessary to authorize a conviction for perjury. The answer to the Government's request was that this special rule is deeply rooted in past centuries and that it serves an admirable purpose in the practical administration of justice. Quoting from their earlier case of Hammer v. United States, 271 U.S. 620, 46 S.Ct. 603, 604, 70 L.Ed. 1118, their language is:
"The application of that rule in federal and state courts is well nigh universal. The rule has long prevailed, and no enactment in derogation of it has come to our attention. The absence of such legislation indicates that it is sound and has ...