# United States v. Wood (39 U.S. 430)

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## Dissenting Opinion

    Thompson
United States Supreme Court
39 U.S. 430
United States v. Wood
On a certificate of division from the Circuit Court of the United States for the Southern District of New York.
The defendant was indicted under the revenue collection laws for the crime of perjury, alleged in the indictment to have been committed by him, in swearing to the matters required to be stated in the 'owner's oath, in cases where goods, wares, or merchandise have been actually purchased,' prescribed by the fourth section of the act supplementary to, and to amend, an act entitled 'An Act to regulate the Collection of Duties on Imports and Tonnage, passed 2d March, 1799, and for other purposes,' approved March 21st, 1823; that oath having been taken by him on the twentieth day of April, one thousand eight hundred and thirty-seven, upon the importation of woollen goods received by him, in the ship Sheridan, from Liverpool, and entered by him, on the said twentieth day of April, as the owner thereof, at the customhouse in the city of New York.
The indictment contained two counts; the first relating to the entry referred to in the oath, and the second to the invoice produced and exhibited at the time of making the oath, and referred to therein. In each count there were several assignments of perjury; charging, in substance, that the actual cost of the goods in question was not truly stated in the said entry and invoice: that the said goods had, in fact, and within the knowledge of the defendant, cost more than the prices stated in the said entry and invoice: and that, in entering said goods, he had intentionally concealed and suppressed the true cost thereof, with intent to defraud the United States.
In the progress of the trial, it appeared 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 the 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 said father, which were entered by the defendant at the customhouse, in the city of New York, upon the oath of defendant, as owner, and upon the production of invoices representing the goods to have been sold to the defendant by the said John Wood.
One package out of every invoice of the goods entered by defendant, including the goods in question, had been inspected by the officers of customs; and all the packages in each invoice had been admitted at the cost prices stated in the invoices, and the duties on such cost price duly paid on the same.
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 cost 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 certain documentary evidence, consisting of an invoice book of the above named John Wood, and of 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 the 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 she 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 question being discussed, the judges were divided in opinion on the point:
'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.'
Which point, upon which the disagreement happened, was stated under the direction of the said Court at the request of the counsel for the parties in the cause, and was certified into the Supreme Court of the United States, pursuant to the act in such case made and provided.
The case was argued by Mr. Gilpin, Attorney General, for the United States; and Mr. Maxwell submitted a printed brief and points, and authorities, for the defendant.
Mr. Gilpin, for the United States.
This indictment arises under the fourth section of the act of 1st March, 1823. 3 Story's Laws, 1882. That section provides for two classes of importations, those made by the owner and purchaser resident here, and those coming to a consignee or agent, resident here, the owner being in a foreign country. When the importation is made by the former, he is required to swear that the entry and invoice, which he presents at the customhouse, contain a just and true account of the actual cost; and that the invoice so presented is the only one which he knows or believes to be in existence. Where the importation is made by a mere consignee, who, of course, in such case, cannot know the actual cost, he is required to swear that the entry and invoices contain a just and true valuation.
The goods which were the subject of this controversy, were goods alleged by the defendant to have been actually purchased by him; and he swore, therefore, that the sum stated by him was their actual cost, and the invoice produced the true and only invoice thereof. What may have been their value is immaterial. It is not denied that the oath was taken; and therefore, the only question on the trial was, whether the defendant's statement was true; that is, was the sum he swore to be the true cost, that which he actually paid; and was the invoice he produced the only invoice which he knew or believed to exist?
It was alleged, on behalf of the United States, that the statement sworn to was not true in either particular; and to sustain this allegation, they offered in evidence the original invoice book of the person in England from whom the defendant made his purchase; and thirty-five original letters of the defendant to that person; all going directly to sustain the truth of the allegation, and to show, by the correspondence between the parties, that the sum stated was not the true cost, nor the invoice produced the true and only invoice. This evidence was objected to as insufficient, solely on the ground that there was an established rule of law which made it indispensable to produce 'at least one living witness, corroborated by another witness, or by circumstances,' in order to convict the defendant of perjury.
To no branch of legal science, perhaps, have the principles of a sound philosophy been applied so fully as to evidence; and with justice, because if truth be the great end of moral conduct, our first efforts should be to investigate the surest means of attaining it; and justly too, because every thing of character depends on what the designated tribunals shall declare to be the truth. Hence no branch of law rests more on principle than evidence. By it, Courts have been governed in their decisions, and it is not too much to say, that if they should find an arbitrary rule existing, which tended to obstruct the development of truth, no antiquity, no precedent, would induce them to adhere to it.
If, however, there be one rule of evidence more absolute and controlling than all others-to which all others must yield-it is that the best evidence must always be produced; not one sort or another indiscriminately-not parol or documentary-but whatever, in the particular case, is the best. Suppose a man to be charged with stating falsely what he said to another; the testimony of those who heard what he did say would be the best. Suppose him to be charged with stating falsely what he had written to another; will it be doubted whether the writing itself, or the testimony of one who had read it, is the best? An arbitrary rule, which should sustain the latter in preference to the former, could not stand the test of judicial wisdom for a moment.
In the present case, the defendant has declared on oath, that he has stated truly the sum he actually paid, and produced the only invoice of these goods that he knew of or believed to exist. What is the best evidence on these points? The seller lives in England; the buyer here; they have numerous transactions; their many payments and shipments are blended in a long and general account. What 'living witness' could prove the sum paid for these particular goods, or dissect the account to ascertain it? If he could, would his testimony in the eye of reason or the law be the best? Would it be comparable to the letter-the private letter between the parties-which states the sum paid? How could a Court, in these circumstances, take the imperfect testimony of the 'living witness' under a technical rule, in preference to the incontrovertible written document; how could it reject what is primary and excellent, for what is secondary and inferior?
But there is no such rule; none such is sustained by any authority cited. The cases referred to establish a sound and just principle; that the oath of the defendant must be contradicted by a preponderance of testimony; that one oath against another is insufficient; that there must be evidence more than equivalent to a single oath. To this extent the general expression used in the cases cited, that 'two witnesses are necessary to convict of perjury,' was meant to apply. Such facts being usually proved by parol evidence, that charging a person with guilt ought clearly to preponderate. Hence it was said, there must be one oath to balance, and a second to outweigh that of the defendant. But it was early decided, that the outweighing evidence might be made up of circumstances; that admissions in letters, and other written testimony were as good as a second oath. This is admitted in the present case. Does not this yield the whole principle? Does it not admit that the rule is not oath against oath: if the written testimony is better than that offered under the oath? In treason, two witnesses to an overt act are required; yet written declarations of the defendant himself are held to be stronger than the parol statement of a witness. 2 Starkie's Cases, 123, 125. Suppose a defendant in Chancery affirms a fact in direct response to the bill-a case in which the same technical rule exists as in that of perjury-would it be tolerated that he should have the benefit of it, though two, or ten, or fifty of his own letters directly contradict him? The voluntary confessions and admissions of a party are regarded as the best possible evidence; is it conceivable that in a case of perjury they would, if made in writing, be totally rejected, no matter how clear, repeated, and distinct, unless some 'living witness' could be found to prove what is thus voluntarily acknowledged? Suppose this defendant, in an affidavit before some competent tribunal, had stated the actual cost of the goods now in controversy to be twice as much as he has here sworn to; could higher or more satisfactory proof of falsehood be adduced? Yet to such difficulties should we be brought, if we were to set aside the paramount rule, which requires and admits in all cases, the best evidence; and acknowledge in those of perjury an arbitrary one, evidently applicable to particular instances alone.
But to whatever extent the technical rule may have been formerly sustained, it is certainly at variance with later authorities. In the King vs. Dane, (5 Barn. and Ald. 941,) it was held, that a defendant may be convicted of perjury, without any other proof than a contrary deposition of his own; for it was said, when he has asserted and denied the same fact by opposite oaths, the one seems sufficient to disprove the other. So in the King vs. Knill, (5 Barn. and Ald. 939,) there was no evidence to sustain the prosecution, except proof of contradictory oaths of the defendant on two occasions; and, though it was insisted that mere proof of a contradictory statement on another occasion was insufficient, without the confirmation of a second witness, yet the Court held it to be enough, because the contradiction was by the party himself. In the case of the King vs. Mayhew, (6 Carr. and Payne, 315,) a letter of the defendant's was held to be good evidence against him; though in that case there was, besides, the oath of a 'living witness.' These cases establish the point, that the rule is not an arbitrary and unbending one, setting aside the paramount principle which requires the best evidence; but a rule, to be applied merely in those cases where the evidence is equally balanced, not derived from the acts or admissions of the party itself, and depending exclusively on parol testimony.
On these grounds it is submitted, that the evidence derived from the defendant's letters and invoice books, was sufficient to warrant his conviction; if they were believed by the jury to establish the facts which they were produced to prove.
Mr. Maxwell, for the defendant, in a printed brief.
1. The rule of evidence in perjury is well established. Direct proof of the falsity of the oath by a witness, in addition to the proof of the circumstances affording presumption of guilt, is always required. 1 Roscoe, Crim. Law, 28. 685. 1 Phillips' Ev. 151. 2 Russel, Crim. Law, 479. 3 Starkie's Ev. 1144. Archbold's Crim. Pl. 157. 2 Hawkins, P. C. ch. 46, sec. 2. 4 Black. Com. 358. This rule of the common law has been uniformly adopted, as a rule of good sense and of safety. 1 Dev. Rep. 263. 6 Cowen, 120. 10 Mod. 193. 6 Carr. and Payne, 315. 25 Eng. Com. Law, 415. 1 Nott and M'Cord, 547. 13 Petersdorff, Ab. tit. Perjury, E. Dane, Ab. ch. 210, art. 3, sec. 4. 16 Viner, Perjury, K.
2. The reason of the rule is stated and proved: 4 Black. Com. 358. 3 Starkie, 1144. 13 Petersdorff, 226, tit. Perjury, E. note I.
3. Letters and declarations not on oath, are of no force as proof to convict of perjury, without direct testimony, in the first instance of the falsity of the oath. 6 Car. and Payne, 315. The King vs. Carr, Sid. 418; referred to in 16 Viner, Perjury, K. proof.
4. A conviction in this case cannot legally be had upon secondary proof, when positive proof is within the power of the prosecutor.
Circumstantial evidence, or the doctrine of presumptive, is never allowed; except from the nature of the case positive proof cannot be had. 3 Black. Com. 371. 3 Chitty's Black. 219, note.
5. The objection to the legal rule of evidence, is the inconvenience to the District Attorney, in getting the proof required by law.
In answer to this the Court is referred to 4 Black. Com. 350.
Mr. Justice WAYNE delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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