The original pleadings, rulings and judgment of the court in the case in which the perjury is alleged to have been committed may be shown in evidence, where the final judgment is not made up.85 As said by a recent writer:86 "The files of the case in which perjury is charged to have been committed are competent to show the pendency and regularity of that case." If the charge of perjury is based on evidence given on the trial of a cause, in addition to the production of a record, the previous evidence and state of the cause should be proven, or at least so much of it as shows that the matter sworn to was material to the issue or point in question.88 "But it is said that if the defendant is being tried for perjury before the same court in which the testimony was given in the former proceeding, it is not necessary to produce a copy of the record as the court will be presumed to know its own record."8 § 3083. Best evidence. Where the indictment alleges a false affidavit or any instrument under oath and part of the record of the court, and by the defendant signed and sworn, such instrument is generally the best evidence.90 So, where the indictment is for perjury alleged to have been committed on the trial of a cause in a court of record, unless formal proof is waived or otherwise dispensed with, the record, or a duly certified transcript, if permitted, must generally be introduced. But secondary evidence may be admissible in a proper case after laying the necessary foundation, and, as elsewhere shown, the testimony of the witness, not a part of the record, and the identity of the accused may be shown in a proper case by parol evidence.92 91 § 3084. Stenographer's notes.-It frequently happens that there is no record of the evidence taken at the former trial and that the 39 Tex. Cr. App. 479, 46 S. W. 826; 3 Starkie Ev., 1142. 80 United States V. Erskine, 4 Cranch (U. S.) 299, 25 Fed. Cas. No. 15057. 90 United States v. Walsh, 22 Fed. 644; but see, Schmidt v. United States, 133 Fed. 257. 91 Heflin v. State, 88 Ga. 151, 14 S. E. 112; 2 Bishop Cr. Proc., § 933b; 2 Starkie Ev. 859; 2 Chitty Cr. Law 312a; Wharton Cr. Law, § 1326. 92 See, People v. Jan John, 144 Cal. 284, 77 Pac. 950. alleged false testimony can be shown only by the oral evidence of some one who heard it given or by the stenographer from his notes. It is proper to permit a stenographer who took the testimony of the defendant in the case in which perjury is charged to have been committed to read from his notes, when he swears that he can give it just as the defendant gave it in court.93 Such evidence would seem to be admissible to prove the testimony alleged to be false, upon which the perjury is assigned, and also as bearing upon the question of its materiality. 94 § 3085. Parol evidence. The prosecution in a perjury case may generally show by parol evidence what the defendant swore to in the former proceedings, and the mere fact that the witness is unable to give an accurate and detailed account of the entire testimony as given by the defendant in the former proceeding, will not prevent him from testifying to the particular part on which the perjury is assigned.95 It is also held in a recent case that on the trial of a prosecution for perjury committed in a naturalization proceeding, the defendant's signature to affidavits filed in the proceeding is admissible to prove the fact that he was a witness therein, although such affidavits, when signed, were in blank; that the provision of the Act of Congress that all courts shall, before issuing a final order or certificate of naturalization, "cause to be entered of record the affidavit of the applicant and of his witness, so far as applicable, reciting and affirming the truth of every material fact requisite to naturalization," does not limit the evidence which may be taken in the proceeding to the affidavits so entered of record; and that on the trial of a person for perjury committed in such a proceeding, oral evidence is admissible to show the commission of the offense.96 93 People v. Macard, 109 Mich. 623, 67 N. W. 968; State v. Camley, 67 Vt. 322, 31 Atl. 840; see, State v. Gibbs, 10 Mont. 213, 25 Pac. 289 (parol evidence); see also, Heflin v. State, 88 Ga. 151, 14 S. E. 112, 30 Am. St. 147. * State v. Gibbs, 10 Mont. 213, 25 Pac. 289, 10 L. R. A. 749; People v. Curtis, 50 Cal. 95; Commonwealth v. Farley, Thacher Cr. Cas. 654; People v. Macard, 109 Mich. 623, 67 95 Hutcherson v. State, 33 Tex. Cr. App. 67, 24 S. W. 908; Taylor v. State, 48 Ala. 157; see also, Rex v. Jones, 1 Peake N. P. 37; United States v. Erskine, 4 Cranch (U. S.) 299, 25 Fed. Cas. No. 15057. 98 Schmidt v. United States, 133 Fed. 257. § 3086. Res gestae.-Evidence of the defendant's acts and declarations at the time of or immediately preceding the giving of the alleged false testimony is admissible in a proper case as being part of the res gestae, and material as showing inducement.97 The whole res gestae, including declarations of the defendant made at the time may be shown as tending to prove that his testimony as to some of the particulars was false.98 So, in a prosecution for perjury, where it was charged that defendant swore that he did not, on a particular accasion, assault his wife, it was held competent for the state to show, in connection with testimony of the assault, what occured at the time, in order to develop the materiality of the issue laid in the indictment.99 § 3087. Circumstantial evidence.-Although, as shown in another section, certain matters in a prosecution for perjury must be established by at least one witness and corroborating circumstances, yet this does not mean that circumstantial evidence is not admissible. Whether it is sufficient, of itself, to support a conviction is another question. It is generally admissible as in other cases,100 although more or different evidence may also be required as to some matters. Thus, circumstantial evidence is admissible in a proper case, to show the truth or falsity of defendant's statement upon the former trial.101 The falsity of other and correlative facts may be shown in a proper case as tending to show defendant's testimony false.102 And where the indictment charged immaterial as well as material matters alleged to be perjury, evidence of the immaterial matter was held competent where it showed that the testimony on the material matter was wilfully false and not given by mistake.103 So, on a prosecution for Tuttle v. People, 36 N. Y. 431; State v. Curtis, 12 Ired. L. (N. Car.) 270; see also, Spencer v. Commonwealth, 15 Ky. L. R. 182, 22 S. W. 559. as Heflin v. State, 88 Ga. 151, 14 S. E. 112, 30 Am. St. 147; see also, Hughes Cr. Law & Proc., § 1659. ❞ Townley v. State, (Tex. Cr. App.) 81 S. W. 309. "As a part of the res gestae," says the court, "was appellant's cursing and abusing of her." See also, Atchison v. State, 44 Tex. Cr. App. 551, 72 S. W. 998. 100 See, Beach v. State, 32 Tex. Cr. App. 240, 22 S. W. 976; United States v. Wood, 14 Pet. (U. S.) 430; 2 Bishop Cr. Proc., § 932. 101 State v. Swafford, 98 Iowa 362, 67 N. W. 284; Eighmy v. People, 79 N. Y. 546; see, Harkreader v. State, 35 Tex. Cr. App. 243, 33 S. W. 117, 60 Am. St. 40; Reavis v. State, 6 Wyo. 240, 44 Pac. 62. 102 Cordway v. State, 25 Tex. App. 405, 8 S. W. 670; Brown v. State, 57 Miss. 424. perjury, the criminal record of such person in other cases than the one in which the perjury is alleged to have been committed, was held admissible against the defendant.104 If the falsity of the statement upon which perjury is assigned is established so as to convince the jury beyond a reasonable doubt, it is sufficient, even though the evidence in addition to that of one witness is circumstantial.105 §3088. Admissions and confessions.-Admissions made by defendant that his former statements under oath were untrue may be used against him.106 So, letters of the defendant showing that goods cost more than he swore they cost in cntering them at the custom house, have been held competent as admissions.107 It has also been held that where the defendant is indicted for false swearing, the confessions of others and accomplices are admissible to prove the falsity of defendant's statements, even if made in the absence of defendant.10s But one cannot be convicted of perjury upon proof merely that at another time he made a statement contradicting his alleged false statement.1 109 § 3089. Corroboration.-On a charge of perjury the state, in order to convict, must usually show by two or more witnesses, or by one witness supported by corroborating and independent circumstances, that the former testimony was false. 110 One witness may be sufficient App.) 29 S. W. 1090; see, People v. 105 See authorities cited in preceding notes; also, People v. Porter, 104 Cal. 415, 38 Pac. 88; People v. Strassman, 112 Cal. 683, 45 Pac. 3; People v. Maxwell, 118 Cal. 50, 50 Pac. 18; Sloan v. State, 71 Miss. 877, 16 So. 262; Gandy v. State, 23 Neb. 436, 36 N. W. 817; Crusen v. State, 10 Ohio St. 258; State v. Rutledge, (Wash.) 79 Pac. 1123. 100 United States v. De Amador, 6 N. Mex. 173, 27 Pac. 488; Littlefield v. State, 24 Tex. App. 167, 5 S. W. 650; Cordway v. State, 25 Tex. App. 405, 8 S. W. 670. 107 United States v. Wood, 14 Pet. (U. S.) 430; see also, Rex v. Mayhew, 6 Car. & P. 315, 25 E. C. L. 450. 109 Martin v. State, 33 Tex. Cr. App. 317, 26 S. W. 400. 100 Reg. v. Hughes, 1 Car. & Kir. 519, 47 E. C. L. 519; Jackson's Case, 1 Lewis C. C. 270; Peterson v. State, 74 Ala. 34; Freeman v. State, 19 Fla. 552; State v. Buckley, 18 Ore. 228, 22 Pac. 838; Schwartz v. Commonwealth, 27 Gratt. (Va.) 1025, 21 Am. R. 365; Brooks v. State, 29 Tex. App. 582, 16 S. W. 542; but see, Whitaker v. State, 37 Tex. Cr. App. 479, 36 S. W. 253. 110 United States v. Hall, (D. C.) 44 Fed. 864, 10 L. R. A. 324; United States v. Coons, 1 Bond (U. S.) 1, 25 Fed. Cas. No. 14860; Galloway v. State, 29 Ind. 442; State v. Raymond, 20 Iowa 582; State v. Jean, 42 La. Ann. 946, 8 So. 480; Brown v. State, 57 Miss. 424; State v. Gibbs. 10 Mont. 213, 25 Pac. 289, 10 L. R. to prove the taking of the oath, but one witness, without supporting circumstances, is not sufficient to establish the falsity of the oath.111 It was formerly held that two witnesses were necessary, as otherwise it would be oath against oath, but this rule no longer obtains. Indeed, it has been held that the manner and testimony of the defendant may be sufficient corroboration to justify a conviction upon the testimony, in addition to one witness for the state.112 The evidence corroborating may be circumstantial, but it must relate to the material part and must be sufficient to convince the jury.113 It has been held that proof of the admissions of the defendant contrary to his statements under oath may be sufficient corroboration.114 But it is said in a recent case that corroborative evidence in this connection means evidence aliunde which tends to show the perjury, independent of any declaration or admission of the prisoner, and that the evidence must be something more than sufficient to counterbalance the oath of the prisoner and the legal presumption of his innocence, and the oath of the opposing witness will not avail, unless it is corroborated by other independent circumstances; but that the additional evidence need not be such as standing by itself, would justify a conviction, where the testimony of a single witness would suffice for that purpose.115 And it has been held by the Supreme Court of the United States that there may be cases, where the evidence is documentary, in which no living witness is necessary. We quote from the opinion as follows: "If we will but recognize 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 that the evidence in question was false. 112 State v. Miller, 24 W. Va. 802. 113 Hernandez v. State, 18 Tex. App. 134, 51 Am. R. 295; Beach v. State, 32 Tex. Cr. App. 240, 22 S. W. 976. 114 Hemphill v. State, 71 Miss. 877, 16 So. 261; State v. Blize, 111 Mo. 464, 20 S. W. 210; State v. Molier, 12 N. Car. 263. 115 State v. Hunter, 181 Mo. 316, 80 S. W. 955. |