the said Albert Dean, saw the said Sam Ruskin run out of the shoe store with a shoe or shoe stretcher in his hand, and did hear the said Sam Ruskin cry, 'You killed my wife, you killed my wife,' that he, the said Albert Dean, saw the said Katherine Kusby and Michael Kusby and a third man run out of the said store at this time, and that he, the said Albert Dean, saw the wife of the said Sam Ruskin lying on the floor, and that her face was being bathed with water."

Afterwards Dean admitted that this testimony was false and that he had perjured himself, and testified that he was procured by Sam Ruskin, defendant in error, for a consideration, to give said perjured testi-. mony in the foregoing action against Michael Kusby and Katherine Kusby.

Upon the first trial for subornation of perjury, Ruskin was convicted, which judgment of conviction. was reversed by the Court of Appeals on the "specified ground that there is in the record an entire absence of corroborative evidence as to the false testimony." A second trial resulted in a disagreement and mistrial. A third trial resulted in the conviction of Ruskin, defendant in error, on May 14, 1926, which judgment of conviction was viewed by the Court of Appeals, the journal entry reciting that "the judgment of the said court of common pleas is reversed for error of law." This judgment of reversal the state of Ohio now seeks to reverse and asks that the judgment of the trial court be affirmed.

re

Messrs. Edward C. Stanton and James C. Connell, for plaintiff in

error:

The suborner is not an accomplice, and his testimony, "tainted" or otherwise, nevertheless is of such character that only a jury may determine its sufficiency.

30 Cyc. 1454; State v. Richardson, 248 Mo. 563, 44 L.R.A. (N.S.) 307, 154 S. W. 735; Stone v. State, 118 Ga. 705, 98 Am. St. Rep. 145, 45 S. E. 630; 21 R. C. L. 276; State v. Waddle, 100 Iowa, 57, 69 N. W. 279.

To convict one of subornation of perjury the crime of perjury, conjointly with that of subornation of perjury, must be proved and established by the same degree of proof as a condition precedent to conviction.

Henderson v. State, 26 Ohio N. P. N. S. 242.

Day, J., delivered the opinion of the court:

A consideration of the errors complained of herein requires the determination of two points. First, whether the record discloses that the correct rule has been applied as to the evidence sufficient to support the judgment of conviction of subornation of perjury; and, second, whether there is sufficient evidence of a substantive nature to sustain the verdict of the jury that an oath was duly and legally administered to the witness Albert Dean, whose testimony is claimed to have been suborned.

There is distinction between the crime of perjury and that of subornation of perjury; and we deem the rule, that under an indictment for perjury the defendant cannot be convicted on the uncorroborated testimony of a single witness, not applicable to a case of subornation of perjury. In the latter offense the defendant is not convicted for a crime occurring while he is under oath and testifying. "The offense that he commits is virtually consummated before the witness gives his testimony. He is not charged with the giving of false testimony. He does not commit his crime while performing any necessary function in the progress of a trial. Why then should his conviction require greater proof than in convicting for theft? We do not think it does." State ornation of perv. Richardson, 248 Mo. 563, 44 L.R.A. (N.S.) 307, 154 S. W. 735; 30 Cyc. 1454; State v. Waddle, 100 Iowa, 57, 69 N. W. 279;

Evidence-sub

jury.

would do this he would pay us, he would put us on easy street. In the meantime we talked over this what was supposed to happen until we had it all down by heart. He says, 'Now, get it down pat; you don't have to worry, I got the judge fixed, all you do is get up and say it; I will give you so much money, you know, put you on easy street,' and in the meantime he gave my husband four or five pairs of shoes.

This story, as related by Mrs. Paladino in municipal court, she testifies in the case at bar, was false, and that she was not in front of the Ruskin store about noon of April 15th, etc., and denies the story in toto.

Later the witness Mrs. Paladino testifies to a conversation with Ruskin, wherein she says:

"Why, we got into an argument over the check.

"Q. What check was that? A. Well, he didn't want to pay me anything for my time at that time, but gave Albert his money.

"Q. Which was how much? A. Thirteen dollars according to the check that he paid us."

In the testimony on the part of Ruskin these charges are denied.

Other excerpts from the record and other details might be given, and, while it is suggested that these state witnesses were unworthy of belief, yet we feel that this was purely a question for the jury to determine, and have reached the conclusion that there is ample corroborative testimony of both the perjury by Albert Dean and the subornation of perjury by the defendant Sam Ruskin, and that the jury was fully justified in reaching the conclusion that it did.

The second point for consideration is whether the record discloses sufficient to enable the jury to find beyond the existence of a reasonable doubt that the testimony of Albert Dean in the municipal court in the city of Cleveland, in the assault and battery case against Michael Kusby and Katherine Kus

-perjury-proof -sufficiency.

by, was given under oath, duly and legally administered.

An examination of the testimony of Dean in that cause shows conclusively that he knew that he was testifying in a court of justice; that the subject of the inquiry was the guilt of the accused of the offense of assault and battery charged in that court; that he was promised a subpoena by Ruskin; that he, together with the other witnesses, raised the hand as in the formal taking of an oath; that the deputy clerk (a lame man, whose voice was not strong) uttered certain words which Dean did not hear clearly enough to understand. Dean, however, in due time took the witness stand, and testified in the case as he claims Ruskin had directed him to do.

We think there is no doubt but that the jury in the subornation of perjury case might well reach the conclusion that Dean in the assault and battery case was sworn before an officer duly authorized to administer oaths, and that to every apparent conclusion Dean by the unequivocal and present act of raising his right hand consciously took upon himself the obligation of an oath. This testimony of Dean as to his own outward act in putting up his hand before an officer of the court duly authorized to administer oaths, and his conduct in the court in which he testified, were both matters which the jury might properly consider in determining whether Dean understood the nature of what he was doing and his purpose in raising his hand in open court before a deputy clerk thereof in the formality of taking a legal and binding oath. Dean was 18 years of age at the time of the alleged subornation. He was doing a man's work at the brick plant of the Cleveland Builders' Supply Company. His testimony in the instant case shows him to have been an intelligent witness, fully cogniz ant of the court procedure that had taken place in the various trials incident to the cause.

From all the facts and circum

stanees surrounding the alleged administering of the oath, we think the conclusion reached by the jury upon that issue of fact between the state and the defendant Ruskin was such that it should not be disturbed. 29 Cyc. 1303: "Oaths are to be administered to all persons according to their own opinions and as it most affects their consciences. The uplifting of the hand is formal enough to make an oath legal and binding."

21 R. C. L. 257: “To make a valid oath on the falsity of which perjury may be charged there must be in some form, in the presence of an officer authorized to administer it, an unequivocal and present act, by which the affiant consciously takes on himself the obligation of an oath. The underlying principle evidently is that whenever the attention of the person who comes up to swear is called to the fact that the statement is not a mere asseveration, but must be sworn to, and in recognition of this he is asked to do some corporal act, and does it, this is a statement under oath-and this, without kiss

ing any book, or raising his hand, or doing any religious act." Ram v. King, 51 Can. S. C. 392, 26 D. L. R. 267, Ann. Cas. 1916A, 494; Curry v. Rex, 48 Can. S. C. 532, 15 D. L. R. 847, Ann. Cas. 1914B, 591; State v. Day, 108 Minn. 121, 121 N. W. 611; 85 Am. Dec. 489, note; Cronk v. People, 131 Ill. 56, 22 N. E. 862.

Entertaining the view that the record discloses that there is sufficient corroborative proof to justify the conclusion of the jury as to the perjury of Dean and the subornation of perjury by the defendant in error Ruskin, that said Dean gave such testimony under oath duly and legally administered, and that the jury's conclusion in so finding is sustained by the proper degree of evidence, it follows that the judgment of the Court of Appeals must be reversed and that of the Common Pleas affirmed.

Judgment reversed. Judgment of Court of Common Pleas affirmed.

Marshall, Ch. J., and Allen, Kinkade, Robinson, Jones, and Matthias, JJ., concur.

In 21 R. C. L. § 17, p. 272, it is said: "Although it seems to have been once the rule that to support a conviction for perjury the evidence of two witnesses was required to establish the falsity of the oath on which the indictment was based, yet it is now well settled that such a conviction may be had on the evidence of one witness, supported by proof of corroborating circumstances. The requirement of corroborative evidence to substantiate a witness's testimony to the falsity of another's oath is consistent with the law's presumption of the innocence of an accused until guilt be proven. It

is frequently said that the contradictory evidence of one witness alone is never sufficient, as it merely establishes an equilibrium, and that, therefore, additional weight is necessary to turn the proof against the defendant."

that the uncorroborated testimony of an accomplice cannot sustain a conviction. These statutes crystallize in a rule of positive law what was already a rule of practice, which, to greater or less extent, courts regarded themselves bound to observe; for it has long been the custom, both in England and America, for the court not only to caution the jury as to the danger of acting upon the unsupported testimony of an accomplice, but to advise them not to convict unless there is some corroborating evidence."

In dealing with the question now under annotation, the courts do not always seem to have distinguished carefully between these two rules, that is, the two-witness rule (or the rule requiring equivalent corroboration), which is peculiar to perjury, or at least to perjury and subornation of perjury, and the rule requiring corroboration of the testimony of an accomplice on the other hand, a rule which is not limited to perjury or subornation of perjury. While the reasoning relied upon to take subornation of perjury, in whole or in part, out of one rule, may be, and in several instances, as subsequently shown, has been, relied upon to take it also out of the other rule, it is necessary in a jurisdiction in which the two-witness rule prevails in perjury cases, and in which the corroboration of the testimony of an accomplice is generally required, to negative the application of both rules, before a conviction of subornation of perjury resting wholly upon the uncorroborated testimony of the person alleged to have been suborned can be affirmed; and, if his testimony is corroborated as to one branch of the case, the application of both rules as to the other branch of the case must be negatived. The rule requiring the corroboration of the testimony of an accomplice, however, does not, as an absolute rule at least, prevail in all jurisdictions. See 1 R. C. L. 166, 167. Hence in some jurisdictions, it is only necessary to negative the application of the two-witness rule, in whole or in part, in order to sustain a conviction of subornation of perjury resting

wholly upon the testimony of the person charged to have been suborned. II. Application of two-witness rule. As will appear in the subsequent treatment of the cases, the completed crime of subornation of perjury is viewed as consisting of two essential elements, the commission of perjury by the person suborned, and the wilful procuring or inducing him to do so by the suborner.

The following cases have applied the two-witness rule to prosecutions for subornation of perjury (the majority, however, recognize that such application is proper only as to proof of the perjury, and that the rule does not apply as to testimony which goes to show that the perjury was procured or induced by the defendant): Hammer v. United States (1926) 271 U. S. 620, 70 L. ed. 1118, 46 Sup. Ct. Rep. 603; State v. Fahey (1902) 3 Penn. (Del.) 594, 54 Atl. 690; Stone v. State (1903) 118 Ga. 705, 98 Am. St. Rep. 145, 45 S. E. 630; Bell v. State (1908) 5 Ga. App. 701, 63 S. E. 860; State v. Wilhelm (1923) 114 Kan. 349, 219 Pac. 510; Com. v. Douglass (1842) 5 Met. (Mass.) 241.

This view is also incorporated in the first syllabus by the court in the reported case (STATE v. RUSKIN, ante, 403) although the opinion quotes, apparently with approval, from the Missouri case, infra, which, as subsequently shown, holds that the twowitness rule is not applicable to either branch of subornation of perjury.

It will be observed that the cases above cited, in limiting the applicability of the two-witness rule in prosecutions for subornation of perjury, adopt and apply the same distinction as regards the different elements of the offense that is adopted and applied by other cases, notably State V. Renswick (1901) 85 Minn. 19, 88 N. W. 22, with reference to the rule requiring the corroboration of the testimony of an accomplice.

In Com. v. Douglass (Mass.) supra, the court said: "The defendant's counsel contends that the whole charge must be proved, either by two witness