People v. Brown

Temple, J. The defendants were prosecuted for procuring false evidence, to wit, an affidavit to be used on the motion for a new trial in Sharon v. Sharon, from a person who was to their knowledge incapable of making an affidavit.

The controversy at the trial was as to the capacity of the affiant, and whether, if she were incompetent, the defendants knew the fact. The last and most material question depended largely upon the degree of intelligence manifested, and whether from the very appearance of the affiant, the defendants must have known or suspected her want of capacity.

The instructions plainly imply that a duty rested upon the defendants,—one of whom was a notary employed to take the affidavit,—to investigate as to the competency of the affiant, independently of any doubt or suspicion actually entertained by them; and further, if by the use of reasonable diligence they could have discerned her incompetency, such means of knowledge is equivalent to knowledge. This cannot be the rule as to criminal responsibility. If the defendants were employed to procure the affidavit, and did not know or suspect the mental unsoundness of Mrs. Clark, and she apparently understood, assented to, and swore to it, I think they could not be held criminally liable, although had they investigated the matter they would have discovered her incompetency. To constitute the crime in question, there must be an intent to produce false evidence for a fraudulent and deceitful purpose; allowing it to be done through carelessness, however gross, without such intent, cannot constitute the offense.

In the course of a long charge, the court instructed the jury as follows: “And I therefore charge you, [308]that if you believe from the. evidence, beyond all reasonable doubt, that on the eighteenth day of May said Isabella Clark was of unsound mind, and that these defendants, at the time of the taking of the affidavit testified to, knew, and had reason to believe and know, that at that time the said Isabella Clark was of unsound mind, and with said knowledge caused her to subscribe to said affidavit, with the intent to. produce said affidavit, or allow it to be produced, in the. action of Sharon v. Sharon, on said motion for a new trial, for any fraudulent or deceitful purpose, as genuine and true, then I charge you it was and is, within the purview of the Penal Code, a false affidavit, paper, and instrument in writing, and it is wholly immaterial whether or not the matters set forth in the affidavit were true or false. .... I therefore charge you, in plain words, that if it is established to your satisfaction, and beyond such reasonable doubt as I have explained to you, that the said Isabella Clark was, on the eighteenth day of May,, 1885, a person of unsound mind, with mental powers so impaired, and her organs of sense so weakened, as to make her incapable of perception, and rendering her incapable of making known her perceptions to. others, and that the defendants knew or had knowledge, or might have, known by the exercise of ordinary observation and inquiry, of her mental unsoundness and incapacity, and knowing such to be her condition, etc., .... then the defendants,, and each of them, are guilty as charged in the information, and it will be your duty to so find by your verdict.”