Elmer James Bilderback, Jr., Appellant, v. United States of America, Appellee, 249 F.2d 271 (5th Cir. 1957)

This appeal is from a judgment of conviction for perjury¹  on each count of a four count indictment followed by one sentence to imprisonment for two years not to run concurrently with the sentence upon the conviction affirmed by this Court in Bilderback v. United States, 246 F.2d 138, upon the trial of which, according to the indictment, the perjury was committed. The charge in that case had been that the defendant unlawfully received, concealed and sold stolen or embezzled Government property.²  We consider separately each of the appellant's five specifications of error.³ 

1. Sufficiency of the Indictment.

The indictment charged that the defendant had falsely testified in the former case that he had not received, possessed, endorsed, nor cashed any one of four checks payable to E. J. Bilderback, drawn on the Citizens and Southern National Bank and signed by J. M. Hirsh, identified as Government Exhibits 12, 13, 14 and 15 upon the former trial. Except for the descriptions of the several checks, each count of the indictment was virtually identical.⁴  Briefly, the claimed insufficiencies in each count are: (a) The reference to the "Judge" charges that the trial was before the judge rather than the court, and the judge was not a competent tribunal. While fully appreciating the distinction between the two, we think it plain from the count as a whole that the reference was simply to the judge of the court which had jurisdiction of the offense.

(b) The count failed to allege that the previous proceedings "ever advanced to a stage of completion showing either acquittal or conviction." Such an averment is not necessary to charge perjury.⁵ 

(c) The charge of materiality was insufficient. It is well settled that the materiality of perjured testimony may be charged by a simple allegation of its materiality instead of by pleading facts which, if themselves true, show that it was material.⁶ 

(d) It charges that the alleged perjury was committed under affirmation instead of under oath, and the perjury statute, 18 U.S.C.A. § 1621, refers only to an oath. 1 U.S.C.A. § 1 provides in part that, "In determining the meaning of any Act of Congress, unless the context indicates otherwise — * * * `oath' includes affirmation, and `sworn' includes affirmed." Rule 54(c), Federal Rules of Criminal Procedure, 18 U.S.C.A., provides that "`Oath' includes affirmation." A painstaking examination of the indictment leaves us in no doubt of its sufficiency.⁷ 

2. Sufficiency of the Evidence.

The United States Attorney, with a commendable sense of fairness, sought, in the absence of the jury, to avoid the necessity of introducing in evidence the indictment upon the former trial upon which was endorsed the jury's verdict finding the defendant guilty, whereupon defendant's then counsel stated:

"Mr. Miller: Your Honor, we will waive any objection that we might have to putting the jury's verdict before this jury, as putting the Defendant's character in issue."

It was stipulated that,

"* * * the transcript of the evidence in case No. 7257, United States vs. Elmer James Bilderback, Jr., et al. may be read in this case with the same force and effect as though the official court reporter who phonographically or stenographically reported the testimony and transcribed the same, was personally present and testifying to the correctness of her notes and the transcript thereof."⁸ 

According to that transcript, the defendant testified upon the former trial that he did not receive any one of the four checks; that the signature on the back was not his signature.⁹ 

The Government introduced a number of known and admitted specimens of the defendant's signature. A Special Agent of the Federal Bureau of Investigation who was a handwriting expert compared at length before the jury the known signatures with the disputed endorsements, and gave his opinion that they were written by the same individual.

J. M. Hirsh testified to giving the four checks to the defendant in payment for some AC spark plugs with platinum points. After examining the checks, the Cashier of the Citizens and Southern National Bank testified that Government Exhibits 13 and 15 had been cashed by bank teller No. 8, Miriam Hamilton, and that Exhibit 12 had been cashed by teller No. 7, Martha Patat. Each of these tellers testified, though entirely from the records, that they cashed the respective checks for the defendant. Exhibit 14 was not cashed by the defendant at the bank, but bore the endorsements of E. J. Bilderback, purportedly, and Bibb Auto Parts, Inc., Emory Highway. C. D. Ethridge, the operator of Bibb Auto Parts on Emory Highway, testified that the defendant gave him that check in payment of a $200.00 balance on a Ford truck which he had sold the defendant plus $7.50 for a battery; and that for the remainder of the $450.00 check he had given the defendant another check for $242.50 which, bearing the defendant's endorsement, was introduced in evidence, as was the invoice detailing the transaction.

The record upon the former trial was introduced before the court to enable it to decide, as a question of law, the materiality of the alleged perjury.¹⁰  Correctly, we think, the court decided that the alleged perjured evidence was material.

Appellant's insistence that his conviction for perjury is wrongful because based on the uncorroborated testimony of the witness Hirsh is obviously unsound. As has been recounted, there was ample corroboration within the rule relied on. See Arena v. United States, 9 Cir., 1955, 226 F.2d 227.

3. The Court's Charge to the Jury.

The objections to the court's charge to the jury are not separately argued, and our examination of them discloses that they are without merit. The court instructed the jury fully and fairly.

4. Assistance of Counsel.

When the defendant was arraigned, he requested the court to appoint counsel for him. He stated that his present counsel on this appeal, Mr. Churchwell, had offered to represent him, but that he not accepted the offer. Mr. Churchwell intervened and a lengthy conversation with the court ensued, some eighteen typed pages, from which the court concluded, and properly so we think:

"By The Court: I so interpret Mr. Churchwell's remarks that he has assumed no responsibility at all, so he is not of counsel for Mr. Bilderback to any extent or any manner."

Judge Bootle then appointed other counsel whom Judge Bootle considered to be one of the most able and competent attorneys of the Macon bar. The case came on for trial before Judge Davis, who, upon motion for new trial, stated that he concurred in and reaffirmed Judge Bootle's opinion of the attorney appointed to represent the defendant.

On the morning of trial, the case was first called before Judge Bootle, where the defendant was not allowed to continue after he had stated: "Your Honor, I have something I would like to say."¹¹  He now says that he then wanted to discharge his then counsel and either to represent himself or to be represented by his present counsel. Certainly, he was not sufficiently persistent to make such a request. The defendant and his then counsel went immediately before Judge Davis, who presided at the trial. The defendant had many opportunities to confer with his present counsel, yet the record¹²  shows no expression of dissatisfaction with counsel made known to Judge Davis until after the jury had retired to consider its verdict, when the following ensued:

"The Defendant: Your Honor, I would like to have a word.

"The Court: I don't know that it would be proper at this time. The jury has just gone out.

"Mr. Miller: I think, Your Honor, all he wants to say is if the jury finds him guilty, Mr. Churchwell is his lawyer from here on out. Of course, as a matter of law, as soon as the jury comes back in, I would have no further connection with the case from that point on. Or, rather I believe my service goes through the sentencing of the Defendant, if the jury should find him guilty.

"Mr. Churchwell: Your Honor, might I make this motion —

"The Court: Well, that's premature. We can't be sure what the jury may do.

"Mr. Miller: That's what I told him, Your Honor.

"Mr. Churchwell: Your Honor, before you retire I want to make a motion.

"The Court: I won't discuss that; that is entirely premature.

"Mr. Churchwell: Your Honor understands I want to make a motion.

"The Court: This is not any time to do anything like that.

"Mr. Churchwell: (To the reporter): I wanted to make a motion before the Court and the Court retired saying this is not the time to do anything."

Assuming that the defendant desired to make a request for substitution of counsel after the jury had retired to consider its verdict,¹³  the court did not abuse its discretion in declining to consider such a request made at so late a stage in the proceedings.¹⁴ 

In the defendant's "Motion for Re-Consideration and Hearing, and Amendment of Motions for Acquittal Notwithstanding the Verdict, and in the Alternative, for a New Trial," which stresses this question of assistance of counsel, there are references to U.S.C. Section 2255 of Title 28. A motion under that section would be a civil proceeding which could not properly be joined with motions in this criminal prosecution. Lest appellant be prejudiced by the discretion not to entertain a second motion under Section 2255,¹⁵  we state our conclusion that no motion under that section has actually been ruled on or is presented for review.

5. Claimed Misconduct of Government Counsel.

In his argument to the jury, defendant's counsel undertook to state the reasons why the defendant did not testify as a witness in his own behalf.¹⁶  To that argument, the United States Attorney responded and the defendant in turn moved for a mistrial, which motion the court denied, all as fully set forth in the margin.¹⁷  We think that the response of the United States Attorney was fairly called for by the argument of defendant's counsel. In any event, in view of the court's instructions to the jury, there was no error in denying the motion for a mistrial.

Finding no reversible error in the record, the judgment is

Affirmed.