Perjury. Evidence, Competency: at trial for perjury of alleged perjured testimony, of substance of conversation in foreign language. Practice, Criminal, Conduct of trial: offer of proof.
At the trial of an indictment for perjury, alleged to have been committed by the defendant in testifying in his own behalf at the trial of a civil action in which he was the plaintiff, a witness who was present at the trial of the civil action can be allowed to testify to the material portion of the testimony of the defendant given at that trial, although he is not able to state in substance all of the testimony given by the defendant in his own behalf in the civil action. In the present case it did not appear that the witness did not remember the whole of the portion of the defendant's testimony which was alleged to be perjured, but it was intimated that in a prosecution for perjury a witness who remembers distinctly a part of the alleged perjured testimony may be allowed to testify to that part although he does not remember all of the testimony of the defendant on the subject in question, leaving the other parts of the alleged perjured testimony to be proved by other witnesses.
In this Commonwealth a witness in a criminal case may be allowed to state in English the substance of a conversation which he had with the defendant in a foreign language.
Where at the trial of a criminal case the defendant makes an offer of proof, containing various matters which are clearly too remote to be admissible, the presiding judge properly may exclude the evidence, thus offered as a whole, without separating it into parts and passing upon the admissibility of each part separately.
HAMMOND, J.
1. The evidence of the witness Manoog H. Shooshanian was properly admitted. It was not necessary that he should have been able to state "all of the testimony given by this defendant in his own behalf in the trial of the aforesaid civil case." It was, to say the least, sufficient for the witness to be able to remember all the defendant said on the particular point to which the witness testified. Rex v. Rowley, 1 Moody, C.C. 111. See also remarks of Shaw, C.J., in Warren v. Nichols, 6 Met. 261, 267. It did not appear that the witness did not thus remember. We do not mean to intimate however that in a prosecution for perjury a witness who remembers distinctly a part of the alleged perjured testimony must be excluded because he does not remember all that was said on that point. Doubtless the defendant is entitled to have shown all the testimony given by himself on the point, but it would seem to be sufficient generally if this was shown by means of various witnesses each remembering only a part, and the parts constituting the whole. See for an extended discussion of this branch of the law Wigmore on Ev. §§ 2099, 2100.
2. There was no error in permitting the witness Ashjian to state in English the substance of the conversation between him and the defendant held in a foreign language. "The narration, in English, . . . was covered by his oath as a witness. It is only when testimony, given in a foreign tongue, requires translation in court, that an interpreter is sworn specially for that purpose." Commonwealth v. Kepper, 114 Mass. 278. Such is the well settled practice in this Commonwealth, whatever may be the practice elsewhere.
3. The offer of proof of certain proceedings on the part of the witness M.H. Shooshanian as tending to show that he had attempted to intimidate the defendant was rightly rejected. The offer was to show these acts as a connected whole. Certainly the facts that the witness had given a bond in the equity proceeding brought to enforce the civil judgment against him, that he then made a complaint to the district court charging Peter Yajian with subornation of perjury in the original action, that he sought a review of the original action upon the ground of perjury and that there was subsequently a suit of Simon Shooshanian against the witness were too remote; and, the offer being made as a whole, the court of its own motion was not bound to separate it into parts and pass upon each part separately.
The offer was not to show bias or animosity on the part of the witness, and the defendant was not precluded from offering any of these facts singly to show such bias or animosity and to obtain the ruling of the court thereon.
Exception overruled.