B. Offenses Against Public Justice

• Library: The Criminal Law of South Carolina (SCBar) (2014 Ed.)

B. Offenses Against Public Justice

Chapter 9 of Title 16 of the South Carolina Code of Laws enumerates various crimes against public justice. The obvious goals of these sections are to safeguard the public from the corruption of government, the misconduct of government officials, and to preserve the integrity and orderly administration of justice. Although these crimes were indictable misdemeanors at common law, some of them have been codified as felonies in South Carolina and other states.

1. Perjury, Subornation of Perjury and False Swearing

Article 1 includes a class of offenses that involve deceit, falsification and fraud. These offenses may be accomplished by words, by writings or by acts.

At common law, perjury was defined as a "willful false oath by one who, being lawfully required to depose the truth in any proceeding in a cause of justice, swears absolutely in a matter of some consequence to the point in question, whether he be believed or not." State v. Byrd, 28 S.C. 18, 21, 4 S.E. 793, 795 (1888) (quoting 2 Bish. Crim. Law § 1015). Section 16-9-10 punishes one who willfully and corruptly makes a false oath in any judicial proceeding or "some other public proceeding of like nature" during which testimony is given before one authorized to administer oaths. State v. M'Croskey, 14 S.C.L. (3 McCord) 308 (1825). This section also prohibits procuring another to commit perjury. Of course, the procurement must be with knowledge and intent that the other commits perjury. Perkins and Boyce, 524-26.

To be perjury, the false swearing must relate to some fact material to the issue and must be made in a judicial proceeding before one lawfully authorized to administer oaths. It is not necessary, however, for the matter falsely sworn to be directly material to the ultimate issue of the case. It is sufficient even though it "may only affect the credit to be given to the witness, or serve to aid other more important evidence." State v. Kennerly, 44 S.C.L. (10 Rich.) 154-55 (1856).

The crime of perjury may not be predicated upon an oath made before a deputy clerk of court whose appointment does not comply with "specific legal requirements," thereby making the clerk a de facto officer rather than an officer de jure. State v. Brandon, 186 S.C. 448, 451, 197 S.E. 113, 115 (1938). Nor is perjury committed when the false testimony given before a trial court does not have jurisdiction over the subject matter. State v. Jenkins, 26 S.C. 121, 1 S.E. 437 (1887), reversed a perjury conviction when it determined that the perjury had been committed in a court that lacked jurisdiction to try the case.

Inconsistent sworn statements are, by themselves, insufficient to establish perjury.

It is well settled that a conviction for perjury cannot be sustained merely on the contradictory sworn statements of the defendant. The state must prove which of the two statements is false, and must show the statement, which is made the basis of the perjury charge, to be false by other evidence than the contradictory statement.

State v. Burns, 120 S.C. 523, 524, 113 S.E. 351, 352 (1922).

The falsity of the oath or statement must be proved either by the testimony of more than one witness or by the testimony of one witness corroborated by other evidence in the case. State v. Crowley, 226 S.C. 472, 475, 85 S.E.2d 714, 715 (1955). While the corroboration must necessarily point to the guilt of the accused, the sufficiency of the evidence should be "for the jury alone to determine." West v. State, 220 S.E.2d 767, 768 (Ga. 1975). There must be some evidence in corroboration, whether circumstantial or direct, in order to submit the case to the jury.

Both the common law and the statutory crime of perjury require proof of intent. Should a witness in a criminal trial give alibi testimony subsequently proven to be false, he could be indicted, and a prima facie case of perjury would then be established with corroboration. Since intent can be inferred from a person's actions, one could be convicted of perjury under this set of facts. If the witness had a mistaken belief as to his original testimony, he could present the defense of mistake of fact. He would then be entitled to an instruction that a mistaken belief, if honestly held, cannot be the basis for a conviction of perjury. Mistake of fact is not an affirmative defense that the defendant would be required to establish by a preponderance of the evidence. Rather, it must be disproved by the State by evidence that is convincing beyond a reasonable doubt. See Chapter VI.L. Mistake of Fact or Law, infra.

Section 16-9-20 punishes one who procures or induces a witness to commit perjury in all civil matters and causes, whether such perjury consists of making false statements in written documents or by testimony in court. The Court has held that the crime of subornation of perjury consists of two essential elements: (1) procuring or inducing one to commit perjury and (2) commission of perjury. Burns v. Clayton, 237 S.C. 316, 117 S.E.2d 300 (1960). Other jurisdictions have held that "[t]he guilt of both the suborned and the suborner must be proved on the trial of the latter [and] [t]he commission of the crime of perjury is the basic element in the crime of subornation of perjury." State v. Sailor, 81 S.E.2d 191, 192 (1954); see also Perkins and Boyce, at 525.

One may be convicted of an attempt to commit this offense, even if the witness allegedly suborned did not actually swear falsely. "Although the crime of subornation of perjury [is] not consummated, the attempt to commit it [is] in itself a crime, being an act done with the intention of preventing the due course of justice." Burns, at 333-34, 117 S.E.2d at 308-09. This principle was successfully used as a basis for disciplinary action against two attorneys for procuring witnesses to execute false statements regarding an automobile accident, notwithstanding the lack of evidence as to the commission of the perjury. Id. at 340, 117 S.E.2d at 312. In 1993, § 16-9-20 was reclassified as a misdemeanor. Historically, an attempt to commit a misdemeanor is not an indictable offense. State v. Redmon, 121 S.C. 139, 113 S.E. 467 (1922). See Chapter IV.D. Attempt, supra.

Section 16-9-30 has extended the common law prohibition against perjury to include false swearing in an extrajudicial situation. Under this section, "it is only necessary to prove that the defendant, under oath, swore to the statement of facts alleged in the indictment, and that the statement that he swore to was a 'false representation.'" State v. Bolyn, 143 S.C. 63, 90, 141 S.E. 165, 174 (1928) (Prosecution of bank employee for providing state bank examiner with notarized statement as to financial condition of bank). This section may be used against one who has made a false affidavit charging another with a crime. State v. Cockran, 17 S.C.L. (1 Bail.) 50 (1828).

Under the 1993 Classification Act, violations of § 16-9-10 and § 16-9-30 are Class F felonies and carry a maximum punishment of five years imprisonment. A violation of § 16-9-20, a misdemeanor, carries a penalty of a $200 fine and imprisonment for six months "unless such fine shall be sooner paid." In addition, it would appear that a conviction under any of the sections would disqualify the defendant from appearing as a witness in any further court proceedings in the future unless he were pardoned. This prohibition in § 169-10 was held repealed by implication by the adoption in 1934 of § 19-11-60 (repealed in 1995), which provided that no person convicted of any crime shall be barred from testifying. State v. Merriman, 287 S.C. 74, 80, 337 S.E.2d 218, 222 (Ct. App. 1985). In any event, a convicted perjurer could testify in his own defense in a subsequent prosecution. His right to testify on his own behalf would overcome the statutory prohibition. Section 16-9-40 was repealed in 1993. That section had provided an additional punishment for perjury or subornation of perjury of incarceration for up to seven years without the option of fine.

Finally, § 16-9-50 provides that any person who has been aggrieved by reason of these offenses may sue for one half of the fine imposed against the defendant with the other half going to the State.

Related to Article 1, Chapter 9, Title 16 crimes are offenses contained in Article 7, Chapter 17, Title 16. Specifically, § 16-17-722(A) makes it unlawful for a person to knowingly file a false police report. Filing a false report about a felony is itself a Class F felony and carries a penalty of up to five years and\or $5,000. A false report of a misdemeanor is a misdemeanor and carries a penalty of up to 30 days and\or $500. A judge may require the offender to pay restitution to the investigative agency to offset costs incurred in investigating the false report. S.C. Code Ann. § 16-17-722 (2003).

An earlier statute, S.C. Code Ann. § 16-17-725, punishes knowingly making a false complaint or statement to "any law enforcement officer concerning the alleged commission of a crime by another" or falsely reporting a fire or other emergency. This statute differs for § 16-17-722 in that the crime does not require a filing of a report. Violation of this statute is a misdemeanor punishable by a fine of up to $200 or 30 days imprisonment.

In 1998, the Legislature also made it unlawful to knowingly make a false report of abuse and neglect. A person who violates this statute is guilty of a misdemeanor and upon conviction may be fined up to $5,000 and\or imprisoned for 90 days. S.C. Code Ann. § 63-7-440 (Supp. 2012).

2. Bribery, Corruption of Jurors and the Like

Article 3 of Chapter 9 in Title 16 concerns bribery of public officers and others, and jury tampering. The essence of bribery at common law "is the prostitution of a public trust, the betrayal of public interests, the debauchment of the public conscience." State v. Cole, 107 S.C. 285, 287, 92 S.E. 624, 624 (1917) (quoting 9 C. Juris 402). It is "a price, reward, gift, or favor...