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Walker v. State.

is said that the indictment here, though it does charge that what was sworn to by Duncan was false and that Duncan knew it to be false, that Walker knew it to be false, yet it does not charge that Walker knew that Duncan knew that it was false, the argument being that unless Walker knew that what he was inducing Duncan to do would be perjury on Duncan's part, then there would be no guilt on the part of Walker because Walker did not know that he was inducing Duncan to commit perjury, because there would be no perjury on the part of Duncan if he believed that what he swore to was true, and so if Walker supposed that Duncan supposed that what he said was true, then Walker, though he so induced Duncan to swear to something that was not true did not know that he was inducing Duncan to commit perjury, because he did not know that Duncan did not know it was not true, and our attention is called to the case of Stewart v. State, 22 Ohio St. 477. The first proposition in the syllabus of that case reads:

"An essential element in the crime of subornation of perjury is the knowledge or belief on the part of the accused, not only that the witness will swear to what is untrue, but also that he will do so corruptly and knowingly."

The second proposition reads:

"An indictment for subornation of perjury, setting forth in due form of law the crime of willful and corrupt perjury by the suborned witness, and then averring that the defendant feloniously, willfully and corruptly did persuade, procure and suborn the witness to commit 'said perjury in manner and form aforesaid,' sufficiently charges the defendant with knowledge that the witness would corruptly and knowingly swear to that which was false.'

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In the opinion by Chief Justice Welch, it is said, speaking of the indictment in that case:

"It first charges in due form of law, the crime of willful and corrupt perjury by Saxton, including the averment that Saxton knew his testimony to be false and fictitious, and concluding with the averment that Saxton had 'in manner aforesaid' committed willful and corrupt perjury; and it then charges that Stewart 'procured, persuaded and suborned the witness to com

Cuyahoga County Circuit.

mit said willful and corrupt perjury in manner and form aforesaid.' The natural and primary import of this language is, to charge upon Stewart a knowledge of the guilt and corruption of the witness. The essence of perjury is the knowledge of the witness that what he states is false. To persuade him to commit perjury is to persuade him to stifle his conscience, and to state under oath what he knows not to be true. To persuade him to do less, that is, to make the false statement without the guilty knowledge, is not to persuade him to commit the crime."

It would appear from this that the proposition is sound, that it must appear from the indictment that the accused knew that if the other party did that which he was persuaded to do by the accused, such other party would thereby commit perjury. But it is said that this indictment charges that the accused "procured, persuaded and suborned the witness to commit said willful and corrupt periary in the manner and form aforesaid." Tested by that rule it seems to us that this criticism of the indictment is not well taken. The indictment in the present case sufficiently charges Duncan with knowledge so as to constitute his swearing as perjury on his part. It distinctly charges knowledge on the part of Walker that what Duncan was to swear to was false, and then follows these words:

"And the said Ulysses G. Walker then and there and at all times aforesaid, and on the day and year aforesaid, prior thereto, and at the county aforesaid, did feloniously, willfully, corruptly and unlawfully aid, abet and procure him, the said Wiliam G. Duncan in making, verifying and falsely swearing to said report, and the matters and things therein stated as aforesaid, then and there well knowing said report and the matters and things therein stated to be false and untrue, and thereby to commit willful and corrupt perjury in the manner and form as aforesaid."

We think the allegation in this indictment that Walker knew that what Duncan would swear to was known by Duncan to be false is stated more distinctly than in the indictment considered in Stewart v. State, supra. The language here is that Walker feloniously, willfully, corruptly and unlawfully did aid, abet and procure Duncan, in making, verifying and falsely

Walker v. State.

swearing to said report. That is, Walker feloniously procured Duncan to swear falsely and thereby to commit willful and corrupt perjury. Certainly, judged by the rule laid down in the Stewart case, this knowledge on the part of Walker that Duncan knew that what he swore to was false, is sufficiently stated.

It is however urged that the facts upon which the averment rests that Walker aided, abetted and procured Duncan not being stated, the indictment in that regard is not sufficient. This objection is, as we think by the case of Stewart v. State, supra, completely answered, and is so answered by the second paragraph of the syllabus, already quoted.

It will be seen that in that case the averment that the defendant did "persuade, procure and suborn the witness to commit said perjury in manner and form as aforesaid," was held to be sufficient as an indictment. It is true that in that case the question does not seem to have been raised as to whether the specific acts of the defendant, constituting the aiding, abetting and procuring, were necessary to be stated, but as the court held the indictment good and as the charge was practically in the same words as in the indictment now being considered, we should regard it as exceedingly technical, indeed as against the authority of that case, to hold the indictment here bad by reason of the alleged defect now being considered.

Under our statute, Sec. 7215 R. S. (13581 G. C.), which provides that, "No indictment shall be deemed invalid for any defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits," we think this indictment clearly sufficient.

Since by our present statute one who aids, abets or procures another to commit a crime is himself a principal offender and may be convicted of the principal offense upon the establishment to a proper degree of certainty that he did either aid, abet, or procure another to commit the crime, we find that under the indictment under consideration the state would be permitted to introduce evidence to establish the aiding, abetting or procuring, and we do not find that one might not be found guilty of aiding and abetting the offense of perjury without being personally present when such perjury was committed.

Cuyahoga County Circuit.

In the case of Chidester v. State, 25 Ohio St. 435, the statute under consideration made the procuring of a crime to be committed a separate crime from the principal offense, and so differed from the present statute in that regard, and under the statute as it then was, it was held, that one under indictment for forgery could not be convicted of that offense without being personally present when the forgery was committed. It by no means follows from this that if he had been indicted for procuring the defendant, or abetting the forging of the instrument, it would have been necessary that he be present. Indeed, the language of the court clearly indicates that such would not be the case. This is said in this connection because the brief of counsel for plaintiff in error urges that under the evidence in this case, it being clearly made to appear that Walker was not personally present when the alleged perjury is claimed to have been committed, he could not be found guilty of aiding or abetting the perjury but only of procuring the perjury to be committed, if he could be convicted of anything, and so, it is urged, that under the facts of the case, the defendant was not properly convicted under the evidence, because it does not appear that Duncan would not have done what he did without any sugges tion or procurement on the part of Walker. And attention is called to the definition of the word "procure" and quotation is made from 22 American & E. Ency. L. (2d Ed.) p. 697, of these words:

"Subornation of perjury is procuring a person to commit perjury which he actually does in consequence of such procureinent."

Section 1197 of Bishop's Criminal Law is called to our attention, where it is said in the brief of counsel, this language is used, in speaking of perjury, that such perjury was committed "in consequence of the persuasion." We have carefully examined the section in the 8th Edition of this work, published in 1892, and fail to find the language quoted. In support of the text several cases are cited, and we are not prepared to say that the proposition is not true and that one can only be convicted of procuring another to commit this crime when such other does commit it in consequence of such procurement. But

Walker v. State.

further, we are not prepared to say that the jury might not, under the evidence in this case, have properly found that whatever was done by Duncan in the matter under consideration, was done in consequence of the procurement by Walker or the inducements held out to him by Walker.

On December 2, 1908, Walker was president of a banking corporation known as the South Cleveland Banking Company. Duncan was the treasurer of the same corporation. Under the laws of the state, the officers of this corporation were required to make a written report, under oath, from time to time, to the superintendent of banks of the state. At the date last aforesaid a report was made out on printed forms furnished by the said superintendent upon which blanks were left to be filled out in writing. On what is known as the front page of that report, one of the things required to be reported was "overdraft." The amount filled out as against this item by Walker was in figures $567.71. This was not a true statement of the condition of the bank as to "overdrafts," unless more than $300,000 which was owing to the bank by the Werner Company of Akron, was properly treated as a loan and not as an overdraft. This was carried on the books of the company as an overdraft. It grew out of transactions between this bank and the Werner Company, involving more than a million dollars, which last named amount was owing by the Werner Company to the banking company at the time this report was made out. The banking company at this time held bonds of the Werner Company to a large amount, which represented a part of this indebtedness or in any event which were held by the bank because of this indebtedness.

The claim is made on the part of Walker that the bank was not the owner of the bonds last spoken of, but held them only as security for the payment of this indebtedness, which has been mentioned in this opinion as more than $300,000, and that this sum was a loan to the Werner Company; that the bank did not own the bonds, and that therefore the bonds were not included as such in this report, but that this amount was included in what was reported under the heading of "Loans and Discounts." The evidence establishes that at one time the bank held the notes of the Werner Company for this amount; that it gave up

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