# United States v. Wood (39 U.S. 430)/Opinion of the Court

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* Dissenting Opinion Thompson
United States Supreme Court
39 U.S. 430
United States v. Wood
This cause has been sent to this Court, upon a certificate of division of opinion between the judges of the Circuit Court for the Southern District of New York.
The defendant was indicted for perjury, in falsely taking and swearing to the 'owners' oath, in cases where goods have been actually purchased;' as prescribed by the fourth section of the supplementary collection law of the 1st March, 1823. 3 Story's Laws, 1883.
The indictment charged the perjury to have been committed on 20th April, 1837, at the customhouse, in New York, on the importation of certain woollen goods, in the ship Sheridan, from Liverpool, shipped to the defendant by John Wood, of Saddleworth, England. There were two counts in the indictment. The first court charged the perjury in seearing to the truth of the entry of the goods, and averred that the actual cost of the goods was not truly stated in the entry; that it was known to the defendant that they cost more than was there stated, and that on entering them, he intentionally suppressed the true cost, with intent to defraud the United States. The second count charged the perjury in swearing to the truth of the invoice produced by the defendant at the time of the entry; and contained similar averments as to its falsity and the intention of the defendant.
In the progress of the trial, it appeared in evidence that the goods in question had been shipped to the defendant by his father, John Wood, of Saddleworth, England, in March, 1837; and that in the invoice produced by the defendant at the time of entry, and referred to in the oath, the goods in question were represented to have been bought by the defendant of said John Wood.
It also appeared, that for several years before, and for some time after the importation by the Sheridan, the defendant had been in the habit of receiving woollen goods from his father, which were entered in the customhouse in the city of New York, upon the oath of the defendant, as owner, and upon the production of invoices representing the goods to have been sold to the defendant by the said John Wood.
It appeared from the testimony of the inspectors of the customs, that the packages designated for inspection, according to their examination and judgment, were not valued in the invoices beyond the actual value of similar goods imported by other persons.
No witnesses were produced on the part of the prosecution, to testify to the actual cost of the goods in question, at the time and place when and where they were purchased. But the counsel for the United States, to prove the charge in the indictment, to wit, that the goods in question actually cost, to the knowledge of the defendant, more than the prices stated in the invoice, offered and proved an invoice book of John Wood, and thirty-five original letters from the defendant, Samuel R. Wood, to the said John Wood, written between April, 1834, and December, 1837; and, it was alleged on the part of the prosecution, that this proof disclosed a combination between Samuel R. Wood and John Wood, to defraud the United States, by invoicing and entering goods, shipped at less than their actual cost; and also disclosed that this combination extended to the shipment by the Sheridan; and that the goods received by that vessel had cost, as defendant knew, when he entered the same, more than the prices stated in the invoice produced, and in the entry made by him.
The counsel for the defendant objected to the competency of such proof to convict of the crime stated in the indictment; and insisted that even if an inference of guilt could be derived from such proof, it was an inference from circumstances not sufficient, as the best legal testimony, to warrant a conviction.
That the legal testimony required to convict of perjury in this case, was the testimony of at least one living witness to disprove the truth of the defendant's oath as to the actual cost of the goods, at the time and place of exportation.
That until such proof was adduced, the documentary evidence produced by the counsel of the United States did not constitute the legal evidence upon which the defendant could be convicted of the perjury, charged in the indictment.
The judges were divided in opinion, 'whether it was necessary, in order to convict the defendant of the crime charged in the indictment, 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 upon which the defendant's counsel relies will be found in most of the elementary writers and digests of the law, very much in the same words. Blackstone in his Commentaries, vol. iv. p. 256, says. 'The doctrine of evidence upon pleas of the crown, is in most respects the same as that upon civil actions. There are, however, a few leading points, wherein, by several statutes and resolutions, a difference is made between civil and criminal cases.' Then proceeding to state the differences made by some of the statutes in cases of treason, followed by a general remark or two; he observes, 'but in almost every other accusation, one positive witness is sufficient:' and afterwards, contesting the general accuracy of Baron Montesquieu's reflection upon laws being fatal to liberty, which condemn a man to death in any case upon the deposition of a single witness; he adds, 'In cases of indictment for perjury, this doctrine is better founded, and there our law adopts it, for one witness is not allowed to convict a man indicted for perjury, because then there is only one oath against another.'
In Viner, 16, Let. K. 328, 'Presumption is ever to be made in favour of innocence; and the oath of the party will have regard paid to it till disproved. Therefore, to convict a man of perjury probable or credible evidence, is not enough; but it must be a strong and clear evidence, and more numerous than the evidence given for the defendant, for else it is only oath against oath. A mistake is not enough to convict a man of perjury; the oath must not only be false, but wilful and malicious.' 10 Mod. 193.
In Hawkins' Pleas of the Crown, vol. ii. ch. 46, p. 591, 'On an indictment for perjury, the evidence of one witness is not sufficient, because then there would only be one oath against another.' Citing 10 Mod. 193, 'To convict a man of perjury, there must be strong and clear evidence, and more numerous than the evidence given for the defendant.'-'It does not appear to be laid down, that two witnesses are necessary to disprove the facts sworn to by the defendant; nor does that seem to be absolutely requisite. But at least one witness is not sufficient, and, in addition to his testimony, some other independent evidence ought to be adduced.'
In Archbold's Criminal Pleading, 157, it is said, upon an indictment for perjury there must be two witnesses; one alone is not sufficient, because there is in that case only one oath against another. 10 Mod. 193. But if the assignment of perjury be directly proved by one witness, and strong circumstantial evidence be given by another, or be established by written documents, this would perhaps be sufficient; although it does not appear as yet to have been so decided. Regina vs. Lea, M. and S. 2 Russel, 545. Also, if the perjury consist in the defendant having sworn contrary to what he had before sworn upon the same subject, this is not within the rule mentioned; for the effect of the defendant's oath in the one case is neutralized by his oath in the other; and proof by one witness will therefore make the evidence preponderate. In 7 Dane's Abridgment, 82, citing Blackstone, it is said, 'It has been decided, that one witness is not allowed to convict a man indicted for perjury, because there is only oath against oath.'-'On a trial for perjury, the oath will be taken as true, until it can be disproved; and therefore the evidence must be strong, clear, and more numerous, on the part of the prosecution than that on the defendant's part; for the law will not permit a man to be convicted of perjury, unless there are two witnesses at least.' For which is cited 1 Bro. Ch. Rep. 419. Crown C. C. 625, 626.
In the second volume of Starkie's Law of Evidence it is said, 'It is a general rule, that the testimony of a single witness is insufficient to warrant a conviction on a charge of perjury. This is an arbitrary and peremptory rule, founded upon the general apprehension that it would be unsafe to convict in a case where there is merely the oath of one man to be weighed against that of another. Nevertheless, it very frequently happens, in particular cases, that the testimony of a single witness preponderates against the limited testimony of many.' In part iii. 399, the same writer says, 'So in the case of perjury, two witnesses are essential; for otherwise there would be nothing more than the oath of one man against that of another, upon which the jury could not safely convict.'
In Russel on Crimes and Misdemeanours, 544, it is said, 'the evidence of one witness is not sufficient to convict the defendant on an indictment for perjury, as in such case there would be only one oath against another.' 10 Mod. 393. But Russel gives several exceptions to the application of the rule, resting upon principles clearly covering the conclusion to which the Court has come upon the question before it.
In Phillips' Evidence, the rule is also given as it is laid down in other writers; and the case in 10 Mod. 193, is referred to. It may be found, too, repeated in many of the volumes of the English and American reports, as well as in the case of the State vs. Hayward, 1 Nott and M'Cord's Reports, cited by the defendant's counsel. The cases collected in 13 Petersdorff's Com. Law, affirm the same rule. It must be conceded, no case has yet occurred in our own, or in the English Courts where a conviction for perjury has been had without a witness speaking to the corpus delicti of the defendant, except in a case of contradictory oaths by the same person. But it is exactly in the principle of the exception, which is by every one admitted to be sound law; that this Court has found its way to the conclusion that cases may occur when the evidence comes so directly from the defendant that the perjury may be proved without the aid of a living witness.
These citations have been made with the view of placing the position contended for by the defendant's counsel in its most positive form; and to show that the conclusion to which the Court has come, has not been without a due consideration of the rule.
It is said to be an inflexible rule of the common law, applicable to every charge of perjury; that it cannot be changed but by the legislative power: that until some statutory change is made, Courts must enforce it: that though other kind of evidence, and that relied upon by the prosecution in this case, may establish a case of false swearing, it will not suffice to convict for perjury: in short, that a living witness is in every case indispensible.
We do not think any change in the rule necessary. The question is, when and how the rule is to be applied, that it may not, from a technical interpretation, or positive undeviating adherence to words, exclude all other testimony as strong and conclusive as that which the rule requires. It is a right rule, founded upon that principle of natural justice which will not permit one of two persons, both speaking under the sanction of an oath, and, presumptively, entitled to the same credit, to convict the other of false swearing, particularly when punishment is to follow.
But in what cases is the rule to be applied? To all, where to prove the perjury assigned, oral testimony is exclusively relied upon? Then oath against oath proves nothing, except that one of the parties has sworn falsely as to the fact to which they have sworn differently. There must then be two witnesses, or one witness corroborated by circumstances, proved by independent testimony. If we will but recognise the principle upon which circumstances in the case of one witness are allowed to have any weight, that principle will carry us out to the conclusion, that circumstances, without any witness, when they exist in documentary or written testimony, may combine to establish the charge of perjury; as they may combine, altogether unaided by oral proof, except the proof of their authenticity, to prove any other fact connected with the declarations of persons or business of human life.
That principle is, that circumstances necessarily make up a part of the proofs of human transactions; that such as have been reduced to writing in unequivocal terms, when the writing has been proved to be authentic, cannot be made more certain by evidence aliunde; and that such as have been reduced to writing, whether they relate to the declarations or conduct of men, can only be proved by oral testimony.
If it be true, then-and it is so-that the rule of a single witness, being insufficient to prove perjury rests upon the law of a persumptive equality of credit between persons, or upon what Starkie terms, the apprehension that it would be unsafe to convict in a case where there is merely the oath of one man to be weighed against that of another; satisfy the equal claim to belief, or remove the apprehension by concurring written proofs, which existed, and are proved to have been in the knowledge of the person charged with the perjury when it was committed, especially if such written proofs came from himself, and are facts which he must have known, because they were his own acts; and the reason for the rule ceases. It can only then, be an arbitrary and peremptory rule; as Starkie says it is, when it is applied to cases in which oral testimony is exclusively relied upon to prove perjury.
And such, we will perceive to have been the apprehension of this rule; and if we will scrutinize its chronology, we cannot fail to see how truth has grown as cases have occurred for its application.
At first two witnesses were required to convict in a case of perjury; both swearing directly adversely from the defendant's oath. Contemporaneously with this requisition, the larger number of witnesses on one side or the other prevailed. Then, a single witness corroborated by other witnesses, swearing to circumstances bearing directly upon the imputed corpus delicti of a defendant, was deemed sufficient. Next, as in the case of Rex vs. Knill, 5 B. and A. 929, note; with a long interval between it and the preceding; a witness who gave proof only of the contradictory oaths of the defendant on two occasions, one being an examination before the House of Lords, and the other an examination before the House of Commons, was held to be sufficient. Though this principle has been acted on as early as 1764, by Justice Yates, as may be seen in the note to the case of the King vs. Harris, 5 B. and A. 937, and was acquiesced in by Lord Mansfield, and Justices Wilmot and Aston. We are aware that in a note to Rex vs. Mayhew, 6 Carrington and Payne, 315, a doubt is implied concerning the case decided by Justice Yates; but it has the stamp of authenticity, from its having been referred to in a case happening ten years afterwards, before Justice Chambre, as will appear by the note in 6 B. and A. 937. Afterwards, a single witness, with the defendant's bill of costs (not sworn to) in lieu of a second witness, delivered by the defendant to the prosecutor, was held sufficient to contradict his oath; and in that case, Lord Denman says, 'a letter written by the defendant, contradicting his statement on oath, would be sufficient to make it unnecessary to have a second witness.' 6 Carr. and Payne, 315. All of the foregoing modifications of the rule, will be found in 2 Russell, 544, and that respecting written documents is stated in Archbold, 157, in anticipation of the case in Carr. and Payne, 315.
We thus see that this rule in its proper application, has been expanded beyond its literal terms, as cases have occurred in which proofs have been offered equivalent to the end intended to be accomplished by the rule.
In what cases, then, will the rule not apply? Or in what cases may a living witness to the corpus delicti of a defendant, be dispensed with, and documentary or written testimony be relied upon to convict? We answer, to all such where a person is charged with a perjury, directly disproved by documentary or written testimony springing from himself, with circumstances showing the corrupt intent. In cases where the perjury charged is contradicted by a public record, proved to have been well known to the defendant when he took the oath; the oath only being proved to have been taken. In cases where a party is charged with taking an oath, contrary to what he must necessarily have known to be the truth, and the false swearing can be proved by his own letters, relating to the fact sworn to; or by other written testimony existing and being found in the possession of a defendant, and which has been treated by him as containing the evidence of the fact recited in it.
Let us suppose a case or two, in illustration of the positions just laid down.
A defendant in two answers to a bill in equity, swears unequivocally to a fact, and as positively against it. A document is produced executed by himself, decisive of the truth of the fact. In such a case can a living witness be wanted; or could any number of living witnesses prove, more certainly, the false swearing than it would be proved by the document and the defendant's contradictory oaths? Or, take the case of defendant being sued in equity, to recover from him the contents of a lost bond. In answer to a call upon him to say whether he had or had not made such a bond, he swears that he never had made such a bond. The bond is afterwards found and proved; is not his answer, then, upon oath, disproved by a circumstance, stronger than words can be, coming from the mouth of man?
Again, suppose a person, in order to obtain a right under a statute, is required to take an oath to a fact which is the mutual act of himself and another, and which from its nature is unequivocal. He swears contrary to the fact. Subsequently his letters written before and after his oath are found; which disclose not only the real fact, but a general design to misrepresent facts of the same kind, and a book or other written paper is produced, bearing directly upon the fact, from its being the original of the transaction reduced to writing contemporaneously with its occurrence, and recognised by the defendant to be such, though it is in the handwriting of another; will not the defendant's recognition of it, with the auxiliary evidence of the letters, without a living witness to speak directly to the corpus delicti of the defendant, justify the whole being put before a jury, in a case of perjury; for them to decide whether the defendant has sworn falsely and corruptly? In such a case, if the person was called in whose handwriting the book or other written paper was, it might happen that he had only been the recorder of the transaction at the instigation of one of the parties to it, without his ever having had any communication with the other respecting its contents. The witness then would only prove so much, without proving any thing which bore upon the charge of false swearing. But when the defendant himself has recognised the book or writing as evidence of his act-and such recognition is proved-there is no rule of evidence which requires other proof, beyond his admission, to prove the contents of the book or paper to be true. But suppose the book or written paper to be also in the handwriting of the defendant, and that several of his letters confirm the fact, that he has sworn contrary to the contents of the first-as all the evidence comes from himself-we cannot doubt it would be right to place the whole before a jury, for it to judge what was the truth of the fact, and whether the defendant had sworn falsely and corruptly.
We will now proceed to examine the case before us, to see if it fall within the principles and illustrations we have given.
The defendant is indicted under the act of Congress of 1st March, 1823, 3 Story, 1883, for falsely and corruptly taking the owners' oath in cases where goods have been actually purchased. It must be kept in mind, that this oath can only be taken in cases of goods imported from foreign countries. It places the importer, than, in a condition to commit fraud in the misrepresentation of the price he has given for goods; with only an accidental possibility on the part of the United States, ever being able to detect it by the evidence of the person from whom the importer has made the purchase.
The importer is required to swear that the invoice produced by him, contains a just and faithful account of the actual cost of the goods; and that he has not in the invoice concealed or suppressed any thing, whereby the United States may be defrauded of any part of the duties lawfully due on the goods, &c. The oath does not require from the owner the value of the goods, but the cost to him. There is nothing in it relating to the quality of the goods, but simply the cost or price paid by the importer, as owner. The defendant in his entry did it upon an invoice sworn to by him, to contain a just and faithful account of the actual cost; that there was nothing in it concealed or suppressed.
He is charged with having sworn falsely in respect to the cost of the goods contained in the invoice, by which he made his entry of them. To maintain the charge, the United States must prove that he paid a larger price. The best evidence, it is admitted, must be introduced to establish that fact. What is the best evidence in respect to its quality, as distinguished from quantity or measure; it being in the former sense that the best evidence is required? It is, that secondary or inferior evidence shall not be substituted for evidence of a higher nature, which the case admits of. The reason of the rule is, that an attempt to substitute the inferior for the higher, implies that the higher would give a different aspect to the case of the party introducing the lesser. 1 Russel, 437. 'The ground of the rule is a suspicion of fraud.' But before the rule is applied, the nature of the case must be considered, to make a right application of it; and if it shall be seen that the fact to be proved is an act of the defendant, which, from its nature, can be concealed from all others except him whose co-operation was necessary before the act could be complete, then the admissions and declarations by the defendant, either in writing or to others, in relation to the act, become evidence. It is no longer a question of the quality but of the quantity of evidence, when it is said, as it is in this case, that his associate in the transaction should be introduced. For instance: we will suppose that the letters of the defendant in this case speak of the cost of the goods in the invoice, to which the defendant swore, and that they show the goods did cost more than they are rated at in the invoice; the quality of the evidence is of that character that it cannot be inferred that superior evidence exists, to make that fact uncertain. Unless such inference can be made, the evidence offered is the best evidence which the nature of the case admits. The evidence is good under the general principle that a man's own acts, conduct, and declarations, where voluntary, are always admissible in evidence against him.
So in respect to the invoice book of John Wood, containing an invoice of the goods enumerated in the invoice to which the defendant swore the owners' oath; in the first of which the goods are priced higher in the sale of them to the defendant. If the letters show the book to have been recognised by the defendant as containing the true invoice, his admission supersedes the necessity of other proof to establish the real price given by him for the goods; and the letters and invoice book, in connection, preponderate against the oath taken by the defendant, making a living witness to the corpus delicti, charged in the indictment, unnecessary. All has been done in the case that can be done to intercept such evidence as would tend to prejudice or mislead; and the case must then be confided to the good sense and integrity of the jury to determine upon the sufficiency of the evidence to convict: the Court charging the jury, that the evidence offered is of that character which supersedes the necessity of introducing a living witness to prove the perjury charged in the indictment.
Let it then be certified to the Court below, as 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.

## Notes

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