payments to the wife up to that time. Held: The enlisted man is not indebted to the United States for the erroneous allotment payments made to his former wife as there was no showing of collusion or other fault on his part or that he received any benefit from such payments. With respect to alleged neglect in not notifying the Allotment Division of his final decree, the enlisted man had no reason to furnish such information because he had no allotment in force and had no knowledge or reason to believe that his wife would apply for an allotment. The Army Finance Center had notice that a divorce was pending at the time of the enlisted man's wife's application, but made no attempt to ascertain the status of such divorce proceedings before approving the application. (Citing JAGA 1952/2380, 7 Mar 1952.) JAGA 1953/2988. 3 April 1953.

PERJURY AND FALSE SWEARING

II. NATURE AND ELEMENTS OF OFFENSES

II. NATURE AND ELEMENTS OF OFFENSES. § 21. Materiality.

§ 23. Oath.

III. PROSECUTIONS.

§ 36. Instructions to Court.

§ 39. Evidence, Weight and Sufficiency.

Tests for materiality of false statements, see ACM 7915, Moye, infra § 45.1.

§ 23.1. Generally.

§ 23. Oath

See 41 Am Jur, Perjury §§ 15–18.

Form and sufficiency of oath, see ACM 8426, Reardon, OATHS § 7.1.

§ 36.1. Generally.

III. PROSECUTIONS

§ 36. Instructions to Court

See 41 Am Jur, Perjury $ 72.

On a trial for perjury the defense requested instructions to the effect that sworn self-contradictions by one accused are insufficient to establish the offense of perjury, that perjury cannot be established by the statements of the accused standing alone and that every element of the crime of perjury must be corroborated by evidence outside the accused's own statement. The law officer declined to give these instructions. However, at the express request of the defense, he instructed the court that the falsity of the statement with which the accused was charged must be established beyond a reasonable doubt either by the evidence of two credible witnesses bearing directly on the alleged falsity or by testimony of at least one such witness bearing directly on the alleged falsities, strongly corroborated by other evidence of fact or circumstances which convince the court of the truth. He further instructed that the court must be satisfied that the testimony of such witnesses thus corroborated established the falsity of the statement beyond a reasonable doubt. Held: The instruction given was a correct statement of the standard of proof requisite to conviction and provided the court with an adequate framework of legal issues to which the evidence could be

fitted. While the requested instructions were not improper and could appropriately have been submitted by the law officer it cannot be said that they were required. (Citing U. S. v. Ginn (No. 263), 1 USCMA 453, 4 CMR 45.) ACM 7915, Moye (1954) 14 CMR

§ 36.9. Corroboration.

While it is desirable that a law officer instruct the court on the degree of proof required for conviction of the offenses of perjury or false swearing, and instruct the court on the rule that the falsity of an alleged perjurer's statement or false swearing cannot, without corroboration by other testimony or by circumstances tending to prove such falsity, be proved by the testimony of a single witness, his failure to do so will not, in the absence of request by defense, constitute error prejudicial to a substantial right of the accused. (Citing Weiler v. United States, 323 US 606, 89 L ed 495, 65 S Ct 548, 156 ALR 496, and other cases.) United States v. Gomes (No. 2165), 3 USCMA 232, 11 CMR 232, affirming CGCM 9772, Gomes, 6 CMR 479, 2 Dig Ops No. 3, PERJ § 36.9.

§ 39. Evidence, Weight and Sufficiency

§ 39.1. Generally.

Proof of any one of several false statements alleged as sufficient to support a conviction of perjury, see ACM 7915, Moye, infra § 45.1.

The accused was charged with knowingly making a false statement under oath to FBI agents that he had never received any money or gift from one Theodore or from any applicant to the Coast Guard for a license for use on uninspected vessels or American merchant vessels, and it was alleged that such conduct was in disregard of his obligations as an officer and gentleman.

It was established that the accused was a Coast Guard examiner of applicants for licenses as mates and masters on inspected and uninspected vessels, that FBI agents interviewed the accused with respect to allegations of acceptances by him of money in return for licenses, and that the accused, under oath, denied receiving any money or gratuities. However, Theodore testified that he had accompanied a number of applicants to the examinations given by the accused, that he saw the accused before the applicant to tell the accused to make it "easier" for the applicant and the applicant would give him "something in appreciation," and that he turned over an envelope to the accused upon completion of the license examination if the applicant had passed. It was established by the testimony of several of the successful applicants that these envelopes contained money.

Other applicants testified that prior to taking the examination they applied to Theodore for help and that he gave each of them a list of questions which were "similar" or "absolutely identical" to those asked by the accused on examination. Furthermore, the accused's superior

during the time the accused acted as examiner testified that the brevity of the examinations by the accused had been a subject of complaint by him. Held: The evidence was sufficient to corroborate the testimony of Theodore and established the accused's statement as false. (Citing Weiler v. United States, 323 US 606, 89 L ed 495, 65 S Ct 548, 156 ALR 496; State v. McGee, 341 Mo 151, 106 SW2d 480.) United States v. Gomes (No. 2165), 3 USCMA 232, 11 CMR 232, affirming CGCM 9772, Gomes, 6 CMR 479, 2 Dig Ops No. 3, FALSE OFF STATMT § 17.1.

The accused was charged with and found guilty of giving the following perjured testimony at a prior trial of one H.: 1. that on or about 27 December 1952, the accused had possession of a 1939 Ford, the property of his girl friend's mother; 2. that upon the same date, he parked the car outside the base up by the "188th" gate; 3. that he had a conversation with H. on the afternoon of 27 December 1952, during the course of which he told H. that the latter could draw some gasoline out of his car and further informed H. where the car was parked; and 4. that prior to 27 December 1952 H., on two or three occasions, had taken gasoline from the accused's car with the latter's permission. The mother of the accused's girl friend testified that she had purchased a Ford car in December 1952 but that she did not obtain possession of the vehicle until the first week of January 1953 and that the accused had picked the car up for her in January 1953 and not before. Other witnesses testified as to the sale and delivery of the car to the accused's girl friend's mother but could not place the date with any degree of certainty. The accused, in a written extrajudicial statement, admitted that he had testified falsely at the trial of H. in the particulars alleged in the specification of which he was found guilty by the instant court. This document which amounted to a full acknowledgment of guilt was received into evidence. The allegedly false statements were made on the trial of H. for stealing gasoline from a car. At that trial, H. had testified that he did not intend to steal and that he thought he was taking the gasoline from the accused's car from whom he had permission. H. was acquitted on that trial.

Held that:

— as a general proposition, a conviction of perjury cannot be sustained unless upon the testimony of two credible witnesses to the falsity of the statements alleged or upon the evidence of one credible witness corroborated by other testimony or circumstance tending to prove such falsity. (Citing MCM, 1951, par 210; ACM 5293, Downing, 6 CMR 568; see also Weiler v. U. S., 323 US 606, 89 L ed 495, 65 S Ct 548, 156 ALR 496; U. S. v. Harris, 36 F Supp 877; U. S. v. Goldstein, 168 F2d 666; U. S. v. Wood, 14 Pet 430, 10 Led 527.)

- testimony of a witness to the falsity of allegedly perjured statements may be corroborated by a voluntary extra-judicial statement of the accused which, as here, amounts to a full acknowledgment of the falsity of the statements constituting the basis for the perjury prosecution. While the board would be reluctant to sustain the conviction if there was nothing more than the testi

mony of the prosecution witnesses summarized above, when the accused's statement is also considered, this strongly corroborates the testimony of the accused's girl friend's mother and, together with the other evidence, fully satisfies the requirement of proof necessary to convict. (Citing U. S. v. Vetterli, 198 F2d 291; Commonwealth v. Bradley, 109 Pa Super 294, 167 A 471; Musick v. State, 292 SW 223.)

- in view of the evidence that the accused did not have possession of the car on 27 December 1952, it must follow that his further statement, under oath, that he had parked this vehicle at a certain place upon the same date, was also false as manifestly he could not park a car that was never in his possession. However, as to the accused's allegedly perjured statements that he had a conversation with H. on the afternoon of 27 December 1952 at which time he authorized H. to draw gasoline out of his car, then informing him where the car was parked, and his further statement that before 27 December 1952 H. had taken gasoline from his car, the only proof is the accused's extra-judicial statement and the evidence is therefore insufficient to sustain a conviction as to these statements.

- where several allegedly false statements attributable to the accused are contained in one specification, proof of the falsity of any one of the statements, if material, will support a conviction of perjury. Accordingly, failure to prove any one is not necessarily fatal to the conviction. (Citing CM 361199, McLean, 10 CMR 183; Galiudo v. State, 89 SW2d 990; People v. Low Ying, 20 Cal App 39, 66 P2d 211.)

one of the tests of materiality is whether the alleged perjured evidence could have influenced the tribunal before which it was received. Furthermore, if an alleged statement is calculated and intended to bolster the testimony of a witness on some material point, it is sufficiently material to form the basis of a charge of perjury. The testimony of the accused given at the trial of H. falls squarely within the language of these propositions. (Citing CM 361199, McLean, 10 CMR 183; CJS, Perjury, sec 9; 41 Am Jur. Perjury, secs 9 and 13.) The test of materiality, however, is not whether the tribunal before which the perjured evidence was given was influenced thereby, but rather, whether the perjured statement was calculated to accomplish this end. ACM 7915, Moye (1954) 14 CMR 720.