The opinion of the court was delivered by: Campbell, District Judge.
Paragraph 3 of each count alleges, in substance, the particular
statement made by the defendant which the Government charges
constituted perjured testimony. Paragraphs 1, 2 and 4 are
identical in each of the four counts.
The defendant attacks the indictment charging three grounds in
support of her motion to dismiss. Each ground shall be considered
as each is particularized herein.
First, counsel for the defendant argues that paragraph 2 of
each count conclusively shows that the Grand Jury was not engaged
in an investigation of offenses against the United States.
Counsel cites specifically the charge that the "June 1955 Grand
Jury was conducting an investigation of possible voting
irregularities during the General Election, held on November 2,
In support of this contention, counsel relies rather heavily on
United States v. Bruno, D.C., 144 F. Supp. 593, an opinion which
I handed down on June 28, 1955. In that case, in ruling that an
allegation that a voter was influenced in his voting at a General
Election was insufficient to charge a federal offense, I held
that an indictment under Section 597, Title 18, of the United
States Code, must clearly charge that the defendant influenced a
voter to vote for a candidate for Federal Office, or, in the
alternative, charge that the defendant illegally induced a voter
to vote at a General Election at which he, the voter, did in fact
cast a vote for a Federal candidate. Counsel relies on this case,
and the authorities therein cited, in support of his argument
that the instant indictment fails to charge that the Grand Jury
was engaged in an investigation of offenses against the United
While I believe that the holding in the Bruno case, referred to
above, is the law when considering the offense that the
Government in that case attempted to charge, I believe even the
most cursory examination of the holding in that case would
immediately reveal that that case, including the cases therein
cited, is clearly non-applicable to the case at bar. The elements
constituting the crime of illegally influencing a voter in regard
to his balloting for a federal candidate are quite different from
the elements of the crime of giving false testimony before a
competent tribunal of the United States. The gist of the latter
crime, and thus the crime with which we are concerned here, is,
in the words of the statute, the wilfull stating, by a witness,
under oath and before a competent tribunal, in any case in which
a law of the United States authorizes an oath to be administered,
of any material matter which he, the witness, does not believe to
be true. The present indictment, therefore, need only charge the
elements constituting this crime and need not concern itself with
the tests applicable to the charging of the crime of illegally
influencing a voter at a Federal election.
Thus considered, an examination of Paragraph I of each count
reveals that the Grand Jury has alleged that the defendant
appeared as a witness "before a competent tribunal, to wit, a
Grand Jury of the United of America, duly empaneled and sworn in
at the June 1955 term of the United States District Court for the
Northern District of Illinois, Eastern Division, in a case in
which a law of the United States authorized an oath to be
administered." Following this charge, come the allegations that
the defendant stated certain material matter before this tribunal
which she did not believe to be true. It is quite apparent,
therefore, that the instant indictment sets forth the elements of
the crime with which we are concerned; equally noteworthy, the
indictment charges that the instant Grand Jury was a competent
tribunal, duly empaneled and sworn in a case in which a
law of the United States authorizes an oath to be administered.
The Government has thus alleged that the Grand Jury in issue had
been lawfully constituted and had a "de facto existence and
organization" — this is all that the law requires. Blair v.
United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979. If the
defendant wishes to contest the fact that this Grand Jury was
lawfully constituted, then she must do so by a proper motion
supported by sufficient affidavits; she cannot, however, in
seizing upon an allegation appearing on the face of this
indictment, succeed to place this issue before the court.
I hold, therefore, that the rule of pleading set forth in
United States v. Bruno, D.C., 144 F. Supp. 593, and the cases
therein cited, is clearly inapplicable to the present case. The
defendant's argument, therefore, is totally without merit.
The defendant's second argument is addressed to the contention
that the materiality of the various statements, which are alleged
to be false, does not appear from a reading of the indictment.
The short answer to this contention is that, although conceding
that perhaps some of the defendant's objections in this regard
are well taken, this defense should be more properly taken up at
the trial of the case. The general allegation of materiality is
sufficient and it is not necessary to encumber the indictment
with, what would amount to be, the Government's argument why it
believes the statements were material. See Markham v. United
States, 160 U.S. 319, 16 S.Ct. 288, 40 L.Ed. 441. The Government,
if it wishes to sustain its case, must prove upon the trial of
the case why and how these particular statements were material.
The defendant, therefore, must reserve this defense until after
the Government rests its case.
The defendant's third and last argument is to the effect that
the language of paragraph 3 of each count is so misleading and
confusing as to be incomprehensible. The defendant concludes
that, as a consequence, the indictment does not "properly inform
the defendant of the nature of the charge against her, and casts
doubt upon the accuracy of the averment."
At the outset, it should be observed that this argument is more
or less a restatement of the defendant's second argument. The
confusion raised, with the exception of that raised by the
language of paragraph 3 of Count I, does not spring so much from
the language used, but from the fact that the materiality of the
statements might not appear to the reader upon a first reading.
To this extent, therefore, the ruling applied to the defendant's
second argument applies to the third argument as well.
Concerning the language of paragraph 3 of Count I, however, it
appears, through the draftsman's use of pronouns, that the
defendant is charged with having testified that Alice Downey and
her brother, John Downey, lived as husband and wife in Alice
Downey's home at 3804 S. Lowe Ave. The Government, in its brief,
argues that there can be no resultant confusion since the
defendant knows very well that John Downey is the defendant's
brother and that he and his wife, Alice Downey, lived as husband
and wife at 3804 S. Lowe. In any event, it appears from a reading
of the indictment that it is alleged that the defendant testified
that John Downey and Alice Downey, brother and sister, lived as
husband and wife at the stated address.
It is fundamental that this being a criminal case we cannot
resort to rules of construction that are available in civil
cases. That is, we cannot learn the draftsman's intention by
employing the parol evidence rule or by studying the "four
corners" of the document in an attempt to secure the draftsman's
overall intention. Therefore, the Government's allegation in
paragraph 3 of Count I must stand as it appears to read on its
face. However, it should be noted that this is not the proper
time to raise an attack on this allegation since, for all the
Court knows, the Government may well prove that the defendant
testified that John Downey and Alice Downey, brother and sister,
lived as husband and wife at 3804
S. Lowe. If upon trial, the Government does not prove the
allegation as it reads in paragraph 3 of Count I, then upon
motion, the entire count will be dismissed on account of the
fatal variance between allegation and proof. With this
admonition, the Government may, on its own motion, move to
dismiss Count I at any time prior to trial or be subject to a
dismissal upon trial if the fatal variance so occurs.
Accordingly, and for the reasons herein set forth, the
defendant's motion to dismiss the ...