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Argument for Respondent.

which he has deliberately given, and which he has allowed to stand until other witnesses have exposed his falsehoods. Moreover, it would be against sound public policy to read such an exception into the statute. An insistence upon the truth at every stage of a lawful inquiry is necessary not merely to protect whatever substantive interests may be at stake, but also to insure expeditious procedure in the tribunal conducting the inquiry. There is no likelihood that the grant of an immunity such as is claimed on behalf of the respondent will lead a witness who has deliberately lied to tell the truth later. Indeed such grant is more likely to tempt a knave to tell a falsehood in the first place and wait to see if he is detected.

On the doctrine of avoidance of perjury by subsequent recantation there is no decision or dictum in this Court. The English law does not recognize this doctrine in cases where the original false statement was deliberate and unequivocal. Regina v. Holl, 45 L. T. Rep. 69 (Q. B. D., 1881); Regina v. Philpotts, 5 Cox Cr. Cas. 363 (1851). The prevailing view in the American state courts does not supply the doctrine unless the original falsehood was due to ambiguity, inadvertence, or accidental error. And no case here or abroad regards perjury as undone where not only the origin al falsehood was clear and deliberate, but also where the retraction did not come until after the witness had lef the stand and other witnesses had exposed him. Masaichi Ono v. Carr, 56 F. (20) 772.

Mr. William E. Shuman for respondent.

Perjury under the Criminal Code is merely a statutory adoption of the common law offense.

When Congress adopts a common law offense, the common law interpretation attends it.

The whole of the evidence of a witness is to be taken together and if the testimony be ultimately true, there is no perjury. King v. Jones, 1 Peakes Rep. 37.

Argument for Respondent.

300 U.S.

A corrected misstatement forms no part of the evidence after the correction is made. It is no longer the assertion of a fact.

Even if the testimony of the witness was intentionally false, yet if he correct it while the matter is still pending, he is not guilty of perjury. The law encourages the correction. People v. Gillette, 126 App. Div. 665; People v. Brill, 165 N. Y. S. 65; Brannan v. State, 94 Fla. 565; Henry v. Hamilton, 7 Blackf. (Ind.) 506 (Nov. Term, 1845); Commonwealth v. Irvine, 14 Pa. Dist. & Co, Rep. 275; King v. Carr, 1 Siderfin's Rep. 418; King v. Jones, 1 Peakes Rep. 37; Bishop, Crim. L., 9th ed., § 1044a.

If a witness dare not correct either inadvertent or intentional misstatements without running the risk of punishment, the administration of justice will be greatly hindered.

A committee of Congress can have no general powers to probe the affairs of the citizen. Sinclair v. United States, 279 U. S. 263; Kilbourn v. Thompson, 103 U. S. 168; McGrain y. Daugherty, 273 U. S. 135.

Every incident referred to in the evidence pertained to the primary election to be held in Nebraska in 1930. It is settled that Congress has no power to legislate for the purpose of regulating primary elections. Newberry v. United States, 256 U. S. 231.

The record shows that the application of respondent was not filed with the Secretary of State of Nebraska within the time required by law, and that the Supreme Court of the State ordered that his name be omitted from the list of candidates on the primary election ballot. At most it was an abortive effort of respondent to become a candidate. There could, therefore, never be a contest involving the right to a seat in the United States Senate because, more than two months prior to the time that respondent was called as a witness before this sub-committee, the Nebraska court had ordered his name omitted

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Argument for Respondent.

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from the ballot; and the primary election, without the name of respondent upon the ballot, had been held forty days before respondent gave the testimony complained of in the indictment.

The power to take testimony to aid the Senate in determining a contest involving the right to a seat in the United States Senate applies not to a remotely anticipated contest, and particularly in a case where the inquiry pertains solely to one who was not even permitted to be a candidate before the primary election, but applies to a contest then existing. Kilbourn v. Thompson, 103 U. S. 168.

The Senate Resolution only authorized the Committee to investigate “the campaign expenditures of the various candidates for the United States Senate.” The respondent never became a candidate for the United States Senate. At most he transmitted his request that he be permitted to become a candidate, and on July 18, 1930, the Supreme Court of Nebraska denied the request.

Not only was the respondent not a candidate, but the evidence discloses no incident that could in any way be said to be a part of any campaign.

The evidence does not contain a word to indicate that either Senator George W. Norris or W. M. Stebbins, who were the only candidates for nomination at this primary election, had anything whatsoever to do with the events shown in the record, or with the funds paid to respondent. The indictment was therefore based upon inquiries that in no wise pertained to a candidate and were therefore wholly immaterial.

Furthermore, there was no campaign nor any part of a campaign by respondent. So far as respondent was

. concerned, any candidacy by him, or any campaign, were non-existing things. To convict one of perjury the evidence "must be strong and clear." Phair v. United States, 60 F. (2d) 953. Not having any campaign, the

respondent's answer to the questions were legally truthful and he therefore cannot be held for perjury. United States v. Slutzki, 79 F. (20) 504.

To make out a case of perjury, “the Government must show the false testimony was relevant to a material issue in a controversy.” Morris v. United States, 261 Fed. 175; United States v. Rhodes, 218 Fed. 518.

But the evidence of the Government in the trial of this case indicated nothing relevant or material to any question in which the United States Senate could properly be interested.

To constitute perjury it is essential that the oath be taken in a "case in which a law of the United States authorizes an oath to be administered.” The charge of crime must have clear legislative basis.

MR. JUSTICE ROBERTS delivered the opinion of the Court.

The record in this case presents an important question of federal criminal law which has not been settled by our decisions. Does retraction neutralize false testimony previously given and exculpate the witness of perjury??

April 10, 1930, the United States Senate, by resolution, empowered the Vice-President to appoint a special committee to investigate campaign expenditures of candidates for the Senate, the committee to sit at such times and places as it should deem proper, to require attendance of witnesses and production of books and papers, and to act by any subcommittee. Failure to obey process of the committee or refusal to answer questions pertinent to the investigation was to be punished according to law. The

Compare Loubriel v. United States, 9 F. (20) 807, 808; Ex parte Chin Chan On, 32 F. (20) 828; Ex parte Keizo Shibata, 35 F. (20) 636; Johnsen v. United States, 41 F. (2d) 44, 46; Masaichi Ono v. Carr, 56 F. (20) 772; Seymour v. United States, 77 F. (20) 577, 582.

resolution recited that the Senate desired facts to aid it in cnacting remedial legislation and in deciding contests involving senatorial elections. The committee so appointed authorized Senator Nye, the Chairman, to act as a subcommittee and to name a subcommittee of one or more members. Such a subcommittee, consisting of Senators Nye and Dale, met September 22, 1930, at Lincoln, Nebraska. The Nebraska primary election had been held on August 12, 1930; the general election at which the names of senatorial candidates were to appear on the ballots was to be held the following November. Senator George W. Norris of McCook, Nebraska, had filed for the Republican primaries on January 1, 1930, and W. M. Stebbins had, on November 12, 1929, filed his acceptance of Republican nominating petitions in his behalf. The respondent had attempted to file for the same primaries on July 5, 1930, but the Supreme Court of the State had ruled on July 18th that his application was not filed within the time prescribed by law and had ordered the Secretary of State to omit his name from the list of candidates for United States Senator to be certified to county clerks and election commissioners. In the light of these facts the subcommittee summoned the respondent to testify on September 22, 1930. He was called and sworn to tell the truth and the whole truth. He narrated something of his personal history and said his original intention was to run for State Railway Commissioner, but he did not file for that office because he thought about filing for United States Senator. He gave the following testimony:

"Q. Now what assurance did you have of financial support and backing ?

A. None whatever.

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