Rock Island daily Argus. (Rock Island, Ill.) 1886-1893, 1888-01-24

| the endeavOr to so incite and procure
| Mrs. Fluegel to swear to falsehoods. were
Mrs. Fluegel herself, her husband. Henry
Fluegel. and her husbands brother,
Michael Fluegel, all of whom are contra.
dicted by plaintiff in error. Henry
! Fluegel had the strongest motives OF in
terest to sustain the prosecution against
| Coyne. As q result of the success Of that
prosecution, he might get rid of his debt
to Maish. and Of other debts for which he
had confessed judgments. HIS testmo,
ny bears sucn ear marks as justify the
greatest caution in its acceptance. He
not only admits that he was party to an
outrageous scheme to defraud his credit
tors, but he confesses that he agreed to
swear to lie, and wrote down false
statements in German for the purpose Of
having them learned by his own wife that
she might swear to them.
Henry, Margaretha and Michael Flue-
gel swear that Coyne came into their
store one day in August or September,
1883, and, taking II seat upon the coun,
ter. told Mrs. Fluegel that when the trial
should come of in Iowa, she must swear
that the sale of the Wapsie farm by her
husband was bona tide, and to the other
matters above mentioned. Henry claims
to have been present and heard what
Coyne said to his wife. Michael, Ger
man, who admits that he does not under.
stand English very well, claims to have
been in an adjoining room, and TO have
heard what Coyne said through the par
tition. As we understand the evidence,
the Indictment charged in the indictment
consists solely aud exclusively of what
aaiI 10 lo
ticular occasion here referred to. She
herself swears that only upon this one &C.
casiOu did Coyne tell her what she must
testify to. The third instruction given
on behalf OF the people was as follows:
Third: The court instructs the jury
that the material allegations of the ia.
dlctment in this case are: Gst.) That
there was a bill in equity filed in the dis
luct court of Scott county. Iowa, where,
in George II. Maish was complainant, and
the defendant and Henry Fuegel were
defendants, in which it was substantially
charged that Fluegel was the real owner
of the Wapsie farm, and that Coyne had
the same in trust and for the use of
Fuege. (2d) Did the defendant in
the county OF Rock Island state of Hi
nois, attempt to incte or procure the
witness, Margaretha Fuagel to testify
that the trade of said Fluegel to COVne
was right trade, that Coyne gave the
Eighteenth street property at ga, 600, and
Fuegel assumed the 500 mortgage on
said Eighteenth street property, and that
Coyne assumed the So 800 mortgage on
the Wapsie farm, and that Fluegel owed
COyne $500 on a note and $500 for SER
vices, and that said proposed testimony
was material to said bill in equity and
was false2
And if the jury believe from the evi
dence. these propositions are proved be
yond reasonable doubt, then the Jury
should ind the defendant guilty
Even if the jury had found that the
propositions stated in the third instruc-
ton were proven beyond a reasonable
doubt, the plaintiff in error may not have
been guilty of endeavoring ITO incite or
procure" Mrs. Fluegel ITO commit per~
jury" Section 22S of the criminal code
Of this state provides that "whoever en-
deavors to incite or procure any other
person to commit perjury, though no per
jury is committed, shall be imprisoned, 1"
etc. Hurd's Rev. Stat Chap. So The
crime which the prisoner was accused of
endeavoring to incite another person to
commit, was perjury. Section 225
of our criminal code thus de fines perjury:
Every person, having taken lawful
oath or made Affirmation, in any Judicial
proceeding or in any other matter where,
by law and oath or affirmation is re-
Quired, who shall swear OF affirm wilfully,
corrrpty and falsely in a matter mater
al to the issue or point in question, shall
be deemed guilty of perjury" etc.
TO commit perjury, person must
"wilfully, Corruptly and falsely" swear or
affirm. The false assertion made by the
witness under oath must be known to
such witness to be false, and must be iu-
tended by him or her to mislead the
court or jury. 9 Whar. Criminal Law,
Sec, 1914, 9th Ed
The third instruction is erroneous be.
cause it leaves out Of view the element of
corrupt intent on the part of the person
melted. 1t in no way intmates, that
Mrs. Fleugel knew that what she was
asked to swear to was false. The deed
to her of the house and lot, and the deed
to Coyne of the farm were both absolute
deeds upon their faces. The evidence
tends to show, that her own husband con
cured in the statements made to her bv
Coyne as to what she was to say on the
witness stand. II she believed that what
she was asked to testify to was true and
did not know of its alleged falsitY, then
she would not have been guilty of per
jury, If she had sworn TO it, Q Whar. on
Criminal Law, Secs. 1915, 1916, etc.
II plaintiff in error was trying to per-
suade Mrs. Fluegel, that certain alleged
facts were true, and to swear to them be.
cause Of her belief that they were true,
he was not endeavoring to incite her to
commit perjury even though he knew
that the testimony he wanted her to give
was false. 1t must appear that he was
urging her to give false testimony, know
ing that she, as well as himself, was
aware of its falsity. Though a party |
who is charged with subornation of per
jury, knew that the testimony of wit
ness whom he called would be false, vet |
il he did not know that the witness would |
wifuIly testify to a fact. knowing it to |
be false, he cannot be convicted of the |
crime charged" Whar Criminal Law,
Sec. / ,329
An instruction similar to the one now
under consideration was for the reason |
here indicated, decided to be erroneous |
by the supreme court of Massachusetts in
Commonwealth VS.. Douglass, 8 Metcalf
241. U. S. vs.. Dennee, Woods, Rep.
80; Stewart VS.. State % Ohio st. All
The fifth instruction given for the peo-
pie was erroneous for the same reason
here urged against the third, and neither
Of them was cured by any instruction
that was given. The fifth of defendants
refused instructions embodied the idea of
guilty intent on the part of Mrs. Fluegel
and should have been given. As already
stated the judicial proceeding in which
the testimony of Mrs. Fleugel was to
have been given was pending in the State
Of Iowa. The point is made and elabo
rAtnlY ARMED by cnunsnl for the Hnfensn