4 Wn.2d 676, THE STATE OF WASHINGTON, Respondent, v. TED INGELS, Appellant
[No. 27846. Department Two. Supreme Court July 29, 1940.]
THE STATE OF WASHINGTON, Respondent, v. TED INGELS,
Appellant.«1»

[1] GRAND JURY - SELECTION - GRANTING EXCUSES - DISCRETION OF COURT. Rem. Rev. Stat., § 100, vests in the superior court a wide discretion in the matter of excusing persons from jury service, and in this case it does not appear that such discretion was abused in excusing a group of forty persons from service on a grand jury.

[2] SAME - SELECTION - EXAMINATION BY PROSECUTING ATTORNEY. Although the prosecuting attorney has no right of challenge against prospective grand jurors, he may, by direction of the court, examine them as to their qualifications.

[3] SAME - SELECTION - MANNER OF SELECTION. A grand jury was legally constituted where, from a panel of seventy-three persons, forty were excused, and, after examination under direction of the court, six more were excused, the names of the remaining twenty-seven were placed in the box, and the names of seventeen drawn therefrom, these seventeen being sworn as the grand jury and thereafter acting as such.

[4] PERJURY - INDICTMENT OR INFORMATION - MATERIALITY OF TESTIMONY - GRAND JURY INVESTIGATION. Under Rem. Rev. Stat., § 2351, defining perjury in the first degree, it is provided that the statements made under oath upon which the charge of perjury may be based, must relate to some "material matter" pertaining to the "proceeding, hearing, inquiry, or investigation" in connection with which the sworn statement was made; and an indictment charging the defendant with giving false testimony before a grand jury material to the collection and accounting of campaign contributions received by him, sufficiently charges the crime of perjury in the first degree, since the collection of campaign funds, while not an offense, might well constitute legitimate matter of inquiry before a grand jury, and an investigation concerning an accounting for funds collected would clearly be within the proper scope of its inquiry.

[5] SAME - SUFFICIENCY OF AVERMENTS OF MATERIALITY. The materiality of a statement alleged to be perjured may be charged

«1» Reported in 104 P. (2d) 944.

[4] See 120 A. L. R. 437; 24 Am. Jur. 856.

STATE v. INGELS. 677
July 1940] Syllabus.

in an indictment either by an allegation of materiality or by pleading facts which show materiality.

[6] CRIMINAL LAW - SELF-INCRIMINATION - STATUTORY PROVISIONS. Rem. Rev. Stat., § 2149, providing that any person violating the laws relating to bribery, grafting or corrupt solicitation, shall be a competent witness against any other person so offending and may be compelled to testify upon any trial, hearing, etc., but that his testimony shall not be used in any prosecution against him, does not apply to a prosecution for perjury based upon testimony concerning his criminal activities.

[7] CONSTITUTIONAL LAW - PERSONAL RIGHTS - SELF-INCRIMINATION. The constitutional guaranties against self-incrimination do not extend to perjury committed in testifying before a grand jury; and in a prosecution for swearing falsely before the grand jury, a plea in bar based upon such constitutional provisions was properly denied.

[8] PERJURY - EVIDENCE - SUFFICIENCY. In a prosecution for perjury, held that the evidence was sufficient to support a verdict of guilty.

[9] CRIMINAL LAW - RECEPTION OF EVIDENCE - COMPELLING PRODUCTION OF EVIDENCE - PROCEEDINGS BEFORE GRAND JURY. In a prosecution for perjury, based on testimony given before a grand jury, it is not an abuse of discretion for the trial court to deny the defendant's motion for a complete transcript of his testimony before the grand jury, where the defendant, prior to the trial, was furnished a transcript of the portion of his testimony upon which the indictment for perjury was returned, and it is evident that the trial court gave the matter careful consideration and was convinced that the records of the grand jury were still secret and not to be disclosed save in so far as absolutely necessary.

[10] CRIMINAL LAW - TRIAL - COURSE AND CONDUCT - REMARKS AND CONDUCT OF JUDGE - COMMENTS ON EVIDENCE AND WITNESSES. In a prosecution for perjury, held that the record does not support a contention that the trial court commented on the evidence or indicated an opinion as to the credibility of any witness.

[11] CRIMINAL LAW - RECEPTION OF EVIDENCE - RECORD OF PROCEEDINGS BEFORE GRAND JURY. In a prosecution for perjury, based on testimony given before a grand jury, it was within the discretion of the trial court to direct the reporter who reported the proceedings of the grand jury to read to the jury the defendant's entire testimony before the grand jury

678 STATE v. INGELS.
Syllabus. [4 Wn. (2d)

without granting the defendant and his counsel an opportunity to previously examine the transcript of such testimony; and where the defendant's entire testimony was so read at his own request, and he made no contention that the course followed was improper, save that he had not previously been furnished a copy of the transcript, he will not be heard to complain.

[12] SAME. In such a case, the court properly refused to admit the reporter's note books in evidence, on the defendant's request, where it was unlikely that any person other than the reporter could read the notes, and the reverse side of the pages of the note books contained the testimony of other witnesses before the grand jury, which was still in session.

[13] SAME - PERJURY - EVIDENCE - OTHER OFFENSES - TO PROVE INTENT. Although ordinarily evidence of other offenses is inadmissible, in a prosecution for perjury it is proper to admit evidence of other perjuries relating to the same oath and subject matter as the perjury charged, where it tends to show knowledge, design, and system on the part of the defendant.

[14] SAME - APPEAL - REVIEW - HARMLESS ERROR - CONDUCT OF COUNSEL - ERROR CURED BY INSTRUCTIONS TO DISREGARD. Error, if any, on the part of the prosecuting attorney in asking the defendant a question which it is contended wrongfully put his character in issue, was cured by the action of the trial court in sustaining an objection to the question and later instructing the jury to disregard the question and the defendant's answer.

[15] WITNESSES - CROSS-EXAMINATION - LIMITATION TO SUBJECTS OF DIRECT EXAMINATION. It was not improper for the prosecuting attorney on cross-examination to ask a witness questions which it is alleged amounted to an imputation of embezzlement by the defendant, where they referred to a phase of the inquiry opened by the defendant's counsel on direct examination, and the answers of the witness were favorable to the defendant.

[16] CRIMINAL LAW - EVIDENCE - HEARSAY. Evidence of a conversation between a witness and the defendant, in the course of which the witness referred to a previous conversation with a third party, is not objectionable as hearsay.

[17] WITNESSES - CROSS-EXAMINATION - CONTROL AND DISCRETION OF COURT. The trial court exercises much discretion in controlling cross-examination; and held, in a prosecution for perjury, based on testimony given before a grand jury in

STATE v. INGELS. 679
July 1940] Syllabus.

connection with campaign contributions, that it was not improper to bring out, on cross-examination, facts in connection with a political appointment made in consideration of a campaign contribution.

[18] WITNESSES - PRIVILEGED COMMUNICATIONS - COMMUNICATIONS BETWEEN ATTORNEY AND CLIENT - WAIVER OF PRIVILEGE - SUBMISSION TO CROSS-EXAMINATION. The privilege accorded by Rem. Rev. Stat., § 1214, to communications between attorney and client, should be carefully guarded but not unreasonably extended; and where a client opens up a subject on direct examination by voluntarily testifying thereto, the privilege is deemed waived, and on cross-examination he may be questioned as to conversations had with his attorney upon that subject.

[19] CRIMINAL LAW - TRIAL - ARGUMENT OF COUNSEL. Error can not be predicated on remarks made by the prosecuting attorney in his closing argument indicating that the defendant had not been fair to his counsel, where the court directed that no further comment be made on the subject, unless it be comment on evidence that was given.

[20] SAME. It was not reversible error for the trial court to refuse to limit a portion of the argument for the state, where, in connection therewith, it stated that "the jury understands the argument of counsel is argument, and you may proceed."

[21] PERJURY - EVIDENCE - ADMISSIBILITY. In a prosecution for perjury, based on testimony given before a grand jury in connection with campaign contributions, evidence of witnesses that they had contributed certain sums to the defendant and others was properly admitted.

[22] WITNESSES - EXAMINATION - CROSS-EXAMINATION OF ONE'S OWN WITNESS - SURPRISE. Where it clearly appears that a witness called by the state was an unwilling witness, and counsel for the state claimed to be surprised at answers of the witness that he did not remember certain transactions, it was proper for the court to allow counsel for the state to cross-examine him.

[23] PERJURY - INSTRUCTIONS - MATERIALITY OF TESTIMONY. In a prosecution for perjury, whether the testimony related to "material matters," is a question of law for the court to determine; and where the charge of perjury is based upon testimony given before a grand jury, and it appears beyond question that such testimony related to a matter material to an investigation which the grand jury was conducting, the court properly instructed the jury that an inquiry by a

680 STATE v. INGELS.
Opinion Per BEALS, J. [4 Wn. (2d)

grand jury is within the law of perjury, and that the matters concerning which the defendant is alleged to have testified were "material matters" within such law.

Appeal from a judgment of the superior court for Spokane county, Paul, J., entered November 4, 1939, upon a trial and conviction of perjury in the first degree. Affirmed.

Edward M. Connelly, for appellant.

Ralph E. Foley and Leslie M. Carroll, for respondent.

BEALS, J. -

The defendant, Ted Ingels, was indicted by the grand jury of Spokane county, for the crime of perjury in the first degree. He moved to set aside the indictment and demurred thereto, later filing to the indictment a plea in bar, supported by his affidavit. His motion to set aside the indictment was denied, and his demurrer was overruled. His plea in bar was also denied. To all these rulings, defendant excepted. Defendant was then put upon his trial, the jury returning a verdict of guilty as charged.

Defendant seasonably filed a motion for arrest of judgment, or in the alternative for a new trial, which motions were denied. Judgment of guilty was then entered upon the verdict, and the defendant sentenced to confinement in the state penitentiary for not more than fifteen years. From this judgment and sentence, defendant has appealed.

Appellant assigns error upon the denial of his motion to set aside the indictment; upon the overruling of his demurrer to the indictment; and upon the denial of his plea in bar. He also contends that the trial court erred in denying his motion for a directed verdict of not guilty, based upon his challenge to the sufficiency of the evidence to sustain the crime charged. He also assigns error upon the denial of his motion for a transcript of his testimony before the grand jury in

STATE v. INGELS. 681
July 1940] Opinion Per BEALS, J.

connection with the subject of campaign contributions, and upon the ruling of the trial court directing a witness who had reported the proceedings before the grand jury to read the entire transcript of appellant's testimony before that body, without permitting appellant and his counsel to previously examine such testimony. Appellant also assigns error upon the ruling of the trial court refusing to receive in evidence the stenographer's notes, when offered by appellant.

It is also contended by appellant that the trial court erred in commenting upon the evidence and upon the credibility of various witnesses; in admitting certain evidence over appellant's objection, and in refusing to strike other testimony on appellant's motion; in overruling his objection to questions propounded to appellant during his cross-examination by the prosecuting attorney; and in overruling his objections to questions propounded on cross-examination to a witness testifying on appellant's behalf.

It is also contended that the trial court erred in permitting a witness for the state, called on rebuttal, to testify, over appellant's objections, to facts which appellant contends concerned acts of appellant not connected with the facts in the case at bar; and in refusing to instruct the jury not to consider the testimony of four designated witnesses. Error is also assigned upon the giving of one instruction and upon the court's refusal to give an instruction requested by appellant; and upon the overruling of appellant's objection to certain portions of the arguments to the jury, as stated by counsel for the state. Finally, appellant contends that the trial court erred in denying his motion in arrest of judgment, and his motion for a new trial.

We shall first discuss appellant's contention that the trial court erred in denying his motion to set aside the indictment. Rem. Rev. Stat., § 2098 [P. C.

682 STATE v. INGELS.
Opinion Per BEALS, J. [4 Wn. (2d)

§ 9152], provides that, upon arraignment, one charged with crime may move to set aside the indictment or information. The grounds for such a motion are stated in § 2099 [P. C. § 9153], paragraph 5 reading as follows: "That the grand jury were not selected, drawn, summoned, impaneled, or sworn as prescribed by law."

Appellant contends that the grand jury was not selected, drawn, or impaneled as prescribed by law, and that for this reason the indictment returned against him by the grand jury should have been set aside. It appears that the judges of the superior court for Spokane county, having directed that a grand jury be called, ordered the county clerk to draw from the jury lists already prepared, the names of seventy-five persons, and to summon those called to appear before the judge who, for the time being, was acting as presiding judge.

[1] Two of the persons whose names were drawn were deceased, and of the remaining seventy-three, forty were excused by the presiding judge or some other judge of the superior court for Spokane county, the remaining thirty-three persons presenting themselves before the presiding judge, as they were ordered to do. Appellant complains that some of the forty persons were excused for insufficient reasons, and that an arbitrary discretion was used in exempting them from liability to respond to the summons.

Rem. Rev. Stat., § 95 [P. C. § 8152], names certain classes of persons who shall not be compelled to serve as jurors; § 97-1 [P. C. § 8154a], makes it the duty of the superior court "to excuse from further jury service any juror" who, in the opinion of the court, has manifested unfitness to serve as a juror. This section does not apply to such a situation as is here presented. It is provided by § 100 [P. C. § 8157], that a person summoned as a juror may be excused from acting as

STATE v. INGELS. 683
July 1940] Opinion Per BEALS, J.

such for any reason stated in § 95, above referred to, or because of sickness of the juror, illness in his family, or serious prejudice to his business. The section continues: "When excused for any of the foregoing reasons, or for any reason deemed sufficient by the court," the name of the juror shall remain upon the jury list, etc.

The statute vests in the superior court a wide discretion to be exercised in the matter of excusing persons summoned for jury service from the performance of that duty; and from the record in the case at bar, it does not appear that, in excusing any of the forty persons above referred to as a group, from attendance before the court, the judicial discretion was abused or exercised to appellant's prejudice.

[2] March 8, 1939, the thirty-three prospective grand jurors reported to the presiding judge. Court convened, and the judge presiding directed "that the work of qualifying and selecting seventeen grand jurors from the entire body of thirty-three prospective grand jurors reporting for duty," proceed forthwith. The prosecuting attorney for Spokane county and his deputy, being present, under direction of the court propounded to the persons presenting themselves for duty such questions as appeared appropriate to enlighten the court as to the qualifications, or the lack thereof, of the respective persons to act as grand jurors. Appellant complains of the fact that the prosecuting attorney and his deputy so examined the prospective jurors, and argues that, from the record, it should be held that the prosecuting attorney in effect challenged some of the prospective grand jurors, and that certain persons were excused from duty as the result of the prosecutor's action, to appellant's prejudice.

While, of course, the prosecuting attorney has no right of challenge against a prospective grand juror,

684 STATE v. INGELS.
Opinion Per BEALS, J. [4 Wn. (2d)

the record before us does not disclose that, in this instance, the prosecutor transcended his authority, or did anything save follow the instructions of the court in interrogating the prospective jurors and eliciting information helpful to the court in passing upon the qualifications of the persons under examination.

In the case of State ex rel. Murphy v. Superior Court, 82 Wash. 284, 144 Pac. 32, this court stated that, under the law, a superior judge might direct that persons summoned as jurors "should be examined as to their qualifications." Under the statute, the court might propound questions to the prospective jurors in an endeavor to elicit information as to their qualifications, or might direct the prosecuting attorney or some other competent person to examine the prospective jurors along the lines suggested. No reversible error was committed by the court in directing the prosecuting attorney and his deputy to examine the jurors.

[3] Of the thirty-three persons examined, six were excused by the court. The names of the remaining twenty-seven were placed in the box, and the names of seventeen drawn therefrom, these seventeen being sworn as the grand jury, and thereafter acting as such, performing certain official acts, including the indictment of appellant. It is argued on behalf of appellant that the act of the court in excusing the six persons referred to was without authority of law, rendered the indictment returned by the grand jury obnoxious to appellant's motion to set the same aside, and that this court should hold that in denying appellant's motion, the trial court committed reversible error, which calls for reversal of the judgment appealed from.

In this connection, appellant relies upon the opinion of this court in the case of State ex rel. Murphy v. Superior Court, supra. In the case cited, this court, on an application for a writ of certiorari to review

STATE v. INGELS. 685
July 1940] Opinion Per BEALS, J.

an order of the superior court entered in connection with the matter of drawing a grand jury, held that the selection by the court from the group summoned from the jury list of seventeen persons to serve as a grand jury was not in accordance with the statute, and that an indictment returned by the grand jury so constituted, should be quashed. From the opinion it appears that from approximately forty of the seventy-eight persons summoned, the other persons having been excused, the judge presiding selected seventeen, and when, upon examination, some of these were found to be disqualified, or were excused, the judge selected from those remaining a sufficient number to make up the grand jury of seventeen persons, excusing the remainder of the veniremen present, without examination or the chance of being drawn as grand jurors. After holding the method followed by the superior court to have been illegal, the court suggested two methods of impaneling a grand jury, using the following language:

"A certain number of names might be drawn from the jury lists. The clerk might be directed to draw the names of individuals and qualify them singly until a sufficient number of jurors were obtained and these might be impaneled as grand jurors. Or, the judge might direct that all of those answering the summons of the court should be examined as to their qualifications and, out of the number so qualified, the clerk should draw by chance a sufficient number to make up the grand jury.

In using this language, the court evidently contemplated some examination of the persons summoned, in order to enable the judge to determine their qualifications and fitness to act as grand jurors. From the record before us, it appears that the names of the twenty-seven persons who had qualified to act were placed in the jury box, and that from these names the clerk drew,

686 STATE v. INGELS.
Opinion Per BEALS, J. [4 Wn. (2d)

in the usual manner, the names of seventeen persons, who were sworn as a grand jury.

In the case of State v. Guthrie, 185 Wash. 464, 56 P. (2d) 160, it was contended that the grand jury which indicted the defendant was illegally constituted, and that a motion to set aside the indictment should have been granted. This court discussed the case of State ex rel. Murphy v. Superior Court, supra, which was relied upon by the appellant, and, after citing texts and authorities, held that the grand jury whose acts were challenged had been legally constituted, and that the discretion vested in the trial court had not been abused. The same rule should apply here, and we hold that the grand jury which indicted appellant was legally constituted, and that the trial court did not err in overruling appellant's motion to set aside the indictment.

[4] Appellant assigns error upon the order of the trial court overruling his demurrer to the indictment. Rem. Rev. Stat., § 2351 [P. C. § 9032], defining perjury in the first degree, provides that the statements made under oath, upon which a charge of perjury may thereafter be based, must relate to some "material matter" pertaining to the "proceeding, hearing, inquiry, or investigation" in connection with which the sworn statement was made. Rem. Rev. Stat., § 2352 [P. C. § 9033], reads as follows:

"It shall be no defense to a prosecution for perjury in the first degree that the defendant did not know the materiality of his false statement or that it did not in fact affect the proceeding in or for which it was made. It shall be sufficient that it was material and might have affected such proceeding."

The charging part of the indictment reads as follows:

"That the said defendant, Ted Ingels, in the county of Spokane, state of Washington, was called as a

STATE v. INGELS. 687
July 1940] Opinion Per BEALS, J.

witness before this grand jury to testify in a hearing, inquiry and investigation then pending before this grand jury, before which grand jury, in which hearing, inquiry and investigation, an oath might lawfully be administered, and that an oath was lawfully administered to the said defendant, Ted Ingels, by the foreman of the grand jury, who was duly and lawfully authorized so to do, and after the said defendant, Ted Ingels, was so duly sworn before this grand jury and in said hearing, investigation and inquiry, as aforesaid, he, the said defendant, Ted Ingels, did testify before said grand jury on March 27th, 1939 and on March 29th, 1939, and the said defendant, Ted Ingels, did then and there in said hearing, inquiry and investigation, as aforesaid, unlawfully, feloniously, wilfully, corruptly, knowingly and contrary to said oath, testify and swear as true the following material matter pertaining to the collection of and the accounting for moneys received by said defendant, Ted Ingels, for the campaign expenses of John C. Stevenson, candidate for the governorship of the state of Washington in the 1936 election . . . "

The indictment then alleges that appellant testified that he received moneys by way of campaign contributions from only certain named employees of Spokane county, and that he received from the persons named $975 and no more, the amount of each individual contribution being listed. The indictment further alleges that appellant testified that he received no money from Sam Thompson and no money from Harry Ford, and continues by alleging that, in truth and in fact, other county employees in addition to those named by appellant contributed to the campaign fund, the names of several persons so contributing being set forth, and that appellant received moneys contributed by employees of Spokane county in excess of $975, the amounts contributed respectively by the persons named being set forth in the indictment, which continues with a direct allegation that appellant received from Sam

688 STATE v. INGELS.
Opinion Per BEALS, J. [4 Wn. (2d)

Thompson the sum of $125, and from Harry Ford the sum of one hundred dollars.

Appellant vigorously contends that the indictment does not show that the grand jury was inquiring into the commission of any crime, or describe any matter material to any offense which was being investigated by the grand jury, and concerning which the testimony of appellant, alleged to have been false, was given. Appellant also argues that the indictment does not allege that the grand jury was inquiring into the commission of any supposed crime relating either to the collection of campaign funds of John C. Stevenson, or any accounting for such funds so collected, or the expenditure thereof. Appellant then argues that, if the grand jury was simply engaged in a "political fishing expedition," the testimony of appellant did not relate to a material matter, and even though false, would afford no sufficient basis for an indictment for perjury.

The indictment discloses that the grand jury was concerned with facts "pertaining to the collection of, and the accounting for, moneys received" by appellant for the campaign fund described, and while the collection of funds to be expended during a political campaign is not an offense, the same might well constitute legitimate matter of inquiry before a grand jury, and an investigation concerning the accounting for funds collected would clearly be within the proper scope of inquiry of such an inquisitorial body.

In the case of State v. Sang, 184 Wash. 444, 51 P. (2d) 414, this court, discussing the functions of a grand jury, said:

"Any reasonable inquiry made or information sought by a grand jury engaged in investigating alleged crimes is entitled to the most open and candid respect, and, if a false answer or information given tends in any manner to hinder or delay the inquiry, it is a material

STATE v. INGELS. 689
July 1940] Opinion Per BEALS, J.

matter. Smith v. State, 91 Ark. 200, 120 S. W. 985; Carroll v. United States,16 F. (2d) 951."

In this connection, the case of State v. Vane, 105 Wash. 170, 177 Pac. 728, is in point. The defendant was charged with the crime of perjury, committed in the course of the trial of one charged with horse stealing. From a judgment of guilty, the defendant appealed, assigning many errors, among them the alleged in sufficiency of the information, appellant contending that the materiality of the alleged false testimony was not sufficiently set forth. While this court was evidently of the opinion that the information upon which the defendant was tried might not meet the strict test of the common law, it was held that the information was sufficient. Considering this phase of the case, the court cited Rem. 1915 Code, § 2065, subd. 6 (Rem. Rev. Stat., § 2065 [P. C. § 9281], subd. 6), reading as follows:

"That the act or omission charged as the crime is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended."

It was held that the information was sufficient, it having advised the defendant of the nature and character of the offense with which he was charged. In the case cited, no demurrer had been interposed to the information before the superior court, but this court examined the information to ascertain whether or not it was sufficient in form and substance to sustain a conviction, the appellant alleging that it was insufficient, in that it failed to "charge the materiality of the alleged perjurious testimony."

In support of his argument that the indictment does not state with sufficient particularity the material matter which was being investigated by the grand jury,

690 STATE v. INGELS.
Opinion Per BEALS, J. [4 wn. (2d)

appellant cites several authorities. In the case of State v. Dallagiovanna, 69 Wash. 84, 124 Pac. 209, 40 L. R. A. (N. S.) 249, it appeared that the trial court had dismissed a prosecution for perjury upon sustaining a demurrer to the indictment. On appeal by the state, it was held that the ruling of the trial court was correct. It was charged that the defendant in the action, having been sworn as a witness before a committee of the Seattle city council, had given false testimony. This court held that the indictment was defective, in that it failed to show that the investigation being made by the committee was such as lay within its power to investigate by requiring the sworn testimony of witnesses. This being true, the indictment was properly held insufficient. The case cited is not here in point.

In the case of State v. Epstein, 138 Wash. 118, 244 Pac. 388, it was held that a prosecution for perjury could not be based upon an affidavit which did not bear the seal of the notary public who administered the oath. This case does not support appellant's contention.

Under this assignment of error, appellant's principal contention is that, as the amount of contributions collected for the Stevenson campaign had nothing to do with the commission of any crime, any investigation thereof by the grand jury was not material to the work of the grand jury, and no testimony pertaining to that matter could be material to the proper work of the jury, and that the indictment fails to charge the crime of perjury, since by statute that crime is defined as swearing falsely to a material matter. As the indictment charged appellant only with the giving of false testimony before the grand jury, whether or not such testimony revealed his participation in any offense against the laws is immaterial. Upon demurrer to the indictment, the question is: Does the indictment sufficiently allege the materiality of the testimony given

STATE v. INGELS. 691
July 1940] Opinion Per BEALS, J.

by appellant to some appropriate field of inquiry by the grand jury, and properly charge appellant with the crime of perjury?

Admitting, as appellant contends, that the collection of funds for a political campaign is not unlawful, and that false testimony before a grand jury referring to the collection of such funds would be material to a proper field of inquiry only in so far as it related to other matters being investigated, the matter of the accounting for funds so collected would be a proper matter for investigation.

[5] The indictment here in question does not set forth in extenso facts which disclose in detail the subject matter of the investigation which the grand jury was making. It is, however, a well established rule of law that the materiality of a statement alleged to be perjured may be charged in an indictment either by an allegation or averment of materiality or by pleading facts which show materiality. People v. De Carlo, 124 Cal. 462, 57 Pac. 383; People v. Ah Bean, 77 Cal. 12, 18 Pac. 815; State v. Horine, 70 Kan. 256, 78 Pac. 411; Rich v. United States, 1 Okla. 354, 33 Pac. 804; Thompson v. People, 26 Colo. 496, 59 Pac. 51; State v. Kellis, 193 Ind. 619, 141 N. E. 337.

In 48 C. J. 878, § 128, is found the following:

"Materiality being an element of the offense, an indictment or information for perjury, in the absence of a statute to the contrary, must allege or show that the false statement on which the charge is based was material to the issue or matter involved, or it will be fatally defective. . . .

"It has frequently been held or stated that the showing as to materiality may be made either by a general averment to that effect or by the allegation of facts from which its materiality will appear; and hence, as hereinafter pointed out, where either method is used, the indictment or information is not bad for failure to use the other also."

692 STATE v. INGELS.
Opinion Per BEALS, J. [4 Wn. (2d)

The indictment in the case at bar alleges that appellant's testimony related to a material matter, which would probably be considered a sufficient averment of materiality, and in addition, alleges the materiality of appellant's testimony, in that in a hearing, inquiry, or investigation then pending before the grand jury, appellant testified to a matter "pertaining to the collection of, and the accounting for, moneys received" by appellant. Of course, testimony relating to funds collected or received by appellant would refer to the first step in an investigation concerning an accounting for such funds.

Appellant cites several authorities which he argues support his contention that the indictment now before us was obnoxious to a demurrer. Examination of these authorities, however, discloses that they refer to an exception to the rule above stated, the exception being that when it clearly appears from the allegations of the indictment that the testimony charged to be false could not have been material, a general averment of materiality cannot make the indictment sufficient. Examples of these authorities are the following:

In the case of United States v. Lamson, 165 Fed. 80, the defendant was charged by indictment with making a false oath to a return under the oleomargarine law, he having made a false affidavit as to the names and addresses of certain customers. The indictment was quashed because the affidavit was not authorized or required by any law.

In the case of United States v. Cameron, 282 Fed. 684, the defendant was charged with perjury alleged to have been committed in making false statements under oath, in connection with affidavits required by the corrupt practices act. The indictment charged that the defendant made a statement under oath, purporting, inter alia, to show all moneys received by him in

STATE v. INGELS. 693
July 1940] Opinion Per BEALS, J.

aid of his candidacy for the office of United States senator, and that the matter of such a statement was material to an investigation carried on by the grand jury. The indictment further alleged that the statement was false, in that it omitted the names of certain persons from whom the defendant had received contributions, and that it did not state the full amount so received. A demurrer to the indictment was sustained on several grounds, including the ground that the act pursuant to which the defendant was prosecuted did not attempt to limit the amount of money that a candidate might receive, but limited only the amount he might spend for campaign purposes, and for this reason, the amount of money delivered to the defendant was immaterial, and the defendant's statements under oath concerning the amount of his receipts had no bearing on any matter relating to the act, and that the perjured testimony, not relating to any material matter, could not be made the basis for a charge of perjury.

The authorities relied upon by appellant are not controlling. The trial court properly overruled appellant's demurrer to the indictment.

Appellant filed a written plea in bar of prosecution, supported by his affidavit and his testimony before the grand jury, and assigns error upon the ruling of the trial court denying this plea, which in effect amounted to sustaining a demurrer to the plea as matter of law. In support of his plea, appellant relies upon the fifth and fourteenth amendments to the constitution of the United States, upon Art. I, § 9, of the constitution of this state, and upon Rem. Rev. Stat., § 2149 [P. C. § 9219], which reads as follows:

"Any person offending against any provisions of the common law or statutes of the state of Washington or any ordinances of any municipality thereof, relating to bribery, grafting or corrupt solicitation, shall be a competent witness against any other person so

694 STATE v. INGELS.
Opinion Per BEALS, J. [4 Wn. (2d)

offending and may be compelled to attend and testify upon any trial, hearing, proceeding or investigation in the same manner as any other person. But the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifying. A person so testifying shall not thereafter be liable to indictment, information, prosecution, or punishment for such offense."

[6] The section of the statute quoted does not apply to a prosecution for perjury, based upon testimony concerning criminal activities on the part of the witness.

In his affidavit, appellant states that, while the grand jury was in session, he was informed that one Lundquist, a former county employee, had been asserting that he had contributed $250 to appellant for the benefit of the Stevenson campaign fund; that appellant, knowing that Lundquist had in fact contributed no more than ten dollars to the fund, and appellant having in his possession a field book, or diary, which he believed had some bearing upon Lundquist's political activities, showed this diary to the prosecuting attorney, appellant being of the opinion that Lundquist would testify before the grand jury and there make statements derogatory to appellant. The affidavit further states that, on the advice of the prosecutor, appellant went before the grand jury as a voluntary witness, having first signed a written waiver of immunity from prosecution. He further states that the prosecutor then subjected appellant to a detailed examination concerning all moneys collected by appellant in connection with Mr. Stevenson's gubernatorial campaign, and that appellant, while unprepared to give exact testimony concerning these matters, answered the questions to the best of his recollection; that appellant was then required to bring to the grand jury all available records concerning the matter referred to; and that, in a subsequent examination, he

STATE v. INGELS. 695
July 1940] Opinion Per BEALS, J.

was asked to give definite figures as to individual contributions, in spite of his statement that his records were incomplete and inaccurate, and that his memory as to some matters was faulty.

Appellant contends that, had he not been lulled into a sense of security by the prosecutor, he would have refused to testify before the grand jury and would not have signed any waiver of immunity from prosecution, and that he was misled, cajoled, and entrapped into signing such a waiver. Appellant contends that his rights under the fifth amendment to the constitution of the United States, which guarantees to the citizen that he shall not be compelled in any criminal case to be a witness against himself, and that his rights under Art. I, § 9, of the constitution of the state of Washington, which guarantees the same right, and his rights under the statute above quoted, were violated, and that his plea in bar should have been sustained. In support of this assignment of error, appellant quotes at length from many authorities in which the rights of citizens under the constitutional provisions above referred to were upheld.

Respondent contends, first, that the plea in bar was irregular; and second, that even if a proper pleading, the trial court correctly sustained what was in effect a demurrer thereto.

[7] The facts set forth by appellant in his affidavit do not show that he was misled or entrapped into testifying before the grand jury. In the case at bar, appellant was not tried for any offense save for swearing falsely before the grand jury. The crime of perjury differs from other crimes. A person may achieve immunity by testifying before a grand jury concerning offenses for which he might otherwise be tried, while at the same time such immunity does not extend to perjury committed in testifying before the grand jury.

696 STATE v. INGELS.
Opinion Per BEALS, J. [4 Wn. (2d)

This situation is referred to in Art. II, § 30, of the constitution of this state, and in Rem. Rev. Stat., § 2291 [P. C. § 8726], which provides that, as to certain cases in which the witness shall not be excused from giving testimony which tends to incriminate himself, he shall not be prosecuted on account of "any action, matter or thing concerning which he shall so testify, except for perjury or offering false evidence committed in such testimony." The authorities cited by appellant do not contemplate the crime of perjury, committed as charged to appellant, and are not here controlling.

Appellant's plea in bar, assuming such a pleading proper, was not well taken, and the trial court did not err in so holding.

[8] Appellant assigns error upon the denial of appellant's challenge to the sufficiency of the evidence and his motion for a directed verdict of not guilty. In support of this assignment of error, appellant argues that the perjury alleged to have been committed by appellant consisted of his testimony concerning persons, named by him, who he stated contributed to the campaign fund. Concerning this, appellant testified before the grand jury that he had a list of all county employees, and a record of the amounts they gave him, or which were turned over to him, as far as his record showed, and again that the list concerning which he testified before the grand jury covered all that he had any record of. It is argued that appellant's testimony was so qualified that it did not amount to any positive statement, and that the evidence therefore does not support a conviction of the crime of perjury. He also contends that the good faith of the witness, or the lack thereof, should always be considered, as well as his state of mind, whether confused or otherwise, and his recollection of the matters concerning which he was testifying, whether good or bad.

STATE v. INGELS. 697
July 1940] Opinion Per BEALS, J.

In this connection, appellant cites the cases of In re Bond, 187 Wash. 200, 60 P. (2d) 54, and State v. Ledford, 195 Wash. 581, 81 P. (2d) 830.

Respondent argues that, considering appellant's entire testimony before the grand jury, the record supports the jury's verdict that appellant did commit perjury in his testimony given before the grand jury. As shown by the record in this case, appellant's testimony before the grand jury was at times indefinite, but on other occasions appellant made statements which the jury before which he was tried was justified in finding were definite and unqualified, and also untrue. It cannot be held that the trial court, as matter of law, should have ruled that the record was insufficient to support a verdict of guilty.

[9] Appellant next contends that the trial court erred in denying his motion that he be furnished the complete transcript of his testimony before the grand jury on the subject of contributions to the Stevenson campaign fund. Almost immediately after the return of the indictment, appellant moved the court for an order directing the official court reporter who had taken down in shorthand the proceedings before the grand jury to prepare a copy of appellant's testimony before the grand jury, including statements made in connection therewith by the prosecuting attorney, his deputy, or any member of the grand jury. In his motion, appellant offered to pay the statutory cost of the transcript. Later, appellant filed an amended motion, asking for a transcript of the testimony and for leave to inspect the minutes and stenographic notes of the grand jury proceedings, in so far as they related to appellant's testimony before the grand jury. In support of his motion, appellant filed the affidavit of his counsel, stating the name of the court reporter and that his name was endorsed upon the indictment as

698 STATE v. INGELS.
Opinion Per BEALS, J. [4 Wn. (2d)

a witness for the state. The affidavit also stated that appellant needed the transcript asked for in connection with the preparation of his defense in this action.

After a hearing on the motion, the court entered a rather lengthy order, directing that a complete typewritten transcript of appellant's testimony be prepared and turned over to the prosecuting attorney, who was ordered to select therefrom such portions of appellant's testimony as constituted the alleged false testimony of appellant referred to in the indictment. It was directed that a separate transcript of this testimony be prepared, and with the complete transcript turned over to the judge before whom the case was proceeding, the judge to return the transcripts to the prosecutor, with directions that he deliver to appellant's counsel a copy of so much of the transcript of the testimony as the court might order.

Pursuant to this order, fifteen pages of typewritten excerpts of appellant's testimony before the grand jury were turned over to appellant's counsel, bearing the following certificate signed by the trial judge:

"That the foregoing transcript, page 1 to page 15, contains a full and complete record of the testimony of the defendant before the grand jury of the state of Washington, for Spokane county, at its hearing on March 27 and March 29, 1939, upon which testimony the grand jury returned the indictment for perjury against the defendant; that I have had before me a complete transcript of all the testimony of the defendant before said grand jury and said complete record does not disclose any testimony of the defendant that qualifies, modifies or weakens the testimony in the foregoing transcript."

It appears that a complete transcript of appellant's testimony relating to contributions to the Stevenson campaign fund comprised sixty-four typewritten

STATE v. INGELS. 699
July 1940] Opinion Per BEALS, J.

lant, nor exhibited to him, until the trial had proceeded for several days, when the reporter's notes of appellant's testimony were read to the jury.

Appellant contends that, in connection with this matter, the record discloses reversible error committed by the trial court. Laws of 1939, chapter 74 p. 200, § 1 (Rem. Rev. Stat. (Sup.), § 2030 [P. C. § 9237]), amended the preexisting statute in regard to grand juries by granting to the court authority to appoint a reporter to attend the sessions of the grand jury and make a record of their proceedings. The reporter who had been designated to attend the grand jury naturally refused to discuss any proceedings by or before that body. Apparently, the grand jury remained in session long after returning the indictment against appellant.

In the case of State v. Morrison, 175 Wash. 656, 27 P. (2d) 1065, it was held that the trial court had not committed reversible error in refusing to permit the defendant, who had been indicted by the grand jury, to inspect certain writings and documents in possession of the prosecuting attorney, and which had been considered by the grand jury. We called attention to the rule long established in this state "that such matters are peculiarly within the discretion of the trial court, and that we can interfere only when there has been a manifest abuse of discretion."

In the case of State v. Rhoads, 81 Ohio St. 397, 91 N. E. 186, 27 L. R. A. (N. S.) 558, it was held that one against whom an indictment was pending was not entitled to the minutes of the evidence before the grand jury, nor to inspect a transcript of such evidence, and that it was error for the court to order the prosecutor to deliver to the defendant the documents mentioned, or to direct that the defendant be permitted to inspect the same. Other authorities are to the same effect.

700 STATE v. INGELS.
Opinion Per BEALS, J. [4 Wn. (2d)

The general rule in connection with the matter now under discussion is stated in 2 Wharton's Criminal Evidence (11th ed.), 1355, § 785, as follows:

"It is also the general rule that an accused in a criminal case has no right to an inspection of the minutes of the grand jury returning the indictment against him, either before or during the trial, but this is a matter resting in the discretion of the court, and, where some special reason exists, such as to enable the accused to properly move to set aside the indictment, he may be permitted to inspect the minutes of the proceedings."

The trial court evidently gave to this phase of the case careful consideration, and was convinced that the records of the grand jury were still secret and not to be disclosed, save in so far as absolutely necessary. The record does not support a holding that the wide discretion enjoyed by the court in connection with such matters was abused or exercised to appellant's prejudice. This assignment of error is without merit.

[10] Appellant contends that the court, during the course of the trial, erred in commenting upon the evidence and upon the credibility of various witnesses. Ten pages of appellant's brief are devoted to references to the record and argument in connection with this assignment. The trial occupied many days, ending October 17, 1939, and the ingenuity of able counsel continually exercised the vigilance of the trial court in an endeavor to maintain an orderly progression of evidence confined to the issues to be tried. Many unusual questions were presented and ably argued by respective counsel. Several of the witnesses were loquacious, and showed unusual persistence in wandering from the subject under discussion, and making statements incompetent as evidence.

We have carefully considered the references to the record made by appellant in connection with this assignment of error, but we are convinced that the trial

STATE v. INGELS. 701
July 1940] Opinion Per BEALS, J.

court did not transcend its authority, nor exercise the same unjustly, to appellant's prejudice. Many things occur in the course of a long, bitterly contested trial, which require immediate consideration and action by the court, and which render the conduct of such a trial arduous and difficult in the extreme.

We find no instance in which it should be held that the court commented on the evidence or indicated an opinion as to the credibility of any witness. This opinion is already unreasonably long, and detailed discussion of matters urged under this assignment of error would greatly add to its length. We find in the matters to which appellant calls our attention no prejudicial error of which appellant may take advantage.

[11, 12]By assignments of error Nos. 7 and 24, appellant brings before us for review rulings of the trial court directing Carroll Shuff, who reported the proceedings of the grand jury, to read appellant's entire testimony before the grand jury, without granting appellant and his counsel an opportunity to previously examine the transcript of such testimony, and also the ruling of the court permitting Mr. Shuff to read what he testified was his entire record of appellant's testimony, after refusing to admit Mr. Shuff's shorthand notes in evidence, on appellant's offer. As above stated, it appeared that appellant, sometime prior to the trial, had asked that a complete transcript of appellant's testimony before the grand jury concerning the matter of the campaign fund, together with incidental matters, be furnished appellant prior to the trial. This matter has been heretofore discussed.

During the course of the trial, the state offered to have all of appellant's testimony before the grand jury read to the trial jury, whereupon appellant's counsel strenuously insisted that he should be permitted to read the testimony before the same be heard by the

702 STATE v. INGELS.
Opinion Per BEALS, J. [4 Wn. (2d)

jury. The trial court refused to direct that this be done. Appellant complains that, by the ruling of the court, made in the presence of the jury, he was required either to consent to the reading to the jury of a long transcript of appellant's testimony, or to refuse to permit it to be read, it having been left to appellant to accept or reject the state's offer to read the testimony. Appellant accepted the offer, and the testimony was read.

Appellant does not argue that the testimony as read to the jury was not in fact a correct transcription of what he had said. He decided that he desired the testimony read, and it was read. He does not contend that, if he had had an opportunity to examine the transcript of the testimony in advance, he could or would have taken any steps which he did not take. He did not, at the trial, contend that the course followed was improper, save as above stated. On this state of the record, we cannot find that the action of the court resulted in prejudice to appellant. In any event, the matter was one concerning which the trial court enjoyed a large degree of discretion as to the course to be followed.

While the witness Shuff was testifying as a witness for the state, he was directed to read portions of appellant's testimony before the grand jury. He stated that he was reading certain pages of his notes, which he testified were correct, and that, prior to being called to the stand, the trial court had directed him to read only certain portions of appellant's testimony.

The matter of appellant's testimony before the grand jury had been the basis for much bitter controversy during the trial. It does not appear that appellant objected to the method of presenting this evidence to the trial jury, his contention being that the trial jury was entitled to know everything that appellant had

STATE v. INGELS. 703
July 1940] Opinion Per BEALS, J.

testified before the grand jury. During the course of Mr. Shuff's testimony, however, appellant objected to his reading his notes, stating that he had supposed that the witness was merely to identify his notes in order to lay a foundation for the admission of the typewritten transcript which had been prepared. At this stage of the proceedings, counsel for the state said that he would offer the transcript in evidence. Answering a question by the court as to whether or not there was any objection to the admission of the transcription of the evidence, appellant's counsel said: "Oh, in its present form, yes."

At this point, the witness, in response to a question by the court, testified that his notes correctly showed appellant's testimony before the grand jury. On crossexamination, appellant had the reporter's note books marked for identification, and offered the note books in evidence. The witness testified that the notes were written by him, and that he used a shorthand system to some extent his own, and that it was unlikely that any person other than himself could read the notes. The witness also testified that, on the reverse sides of the pages containing appellant's testimony, there appeared the testimony of other witnesses before the grand jury, which was still in session. Under these circumstances, the court properly refused to admit the note books in evidence, on appellant's request.

During the trial, members of the grand jury testified as witnesses, and during the examination of these witnesses, as well as during the examination of Mr. Shuff, appellant was contending that all of appellant's testimony before the grand jury should be read to the trial jury. During the examination of a witness who had served on the grand jury, the state, as above set forth, offered to have all of appellant's testimony read to the trial jury, which was done.

704 STATE v. INGELS.
Opinion Per BEALS, J. [4 Wn. (2d)

Appellant now contends, citing Preston v. Metropolitan Life Ins. Co., 198 Wash. 157, 87 P. (2d) 475, and State v. Harkness, 1 Wn. (2d) 530, 96 P. (2d) 460, that the reading of the reporter's notes was improper. Appellant wanted a transcription of his testimony before the grand jury introduced in evidence. He made no objection to the reading of his notes by the witness Shuff, upon the ground that that method of introducing evidence was incorrect. It does not appear that Mr. Shuff was examined as to his recollection of appellant's testimony, appellant's efforts being devoted to an attempt to introduce before the trial jury all of his testimony before the grand jury.

After the witness Shuff had testified from his notes, as abridged by the prior order of the trial court, appellant's counsel made the following proffer:

". . . and the defendant further offers to prove by production of a complete transcript of the testimony given by him before the grand jury that the pages and lines of said complete transcript which have been deleted are relevant material and competent to the issues presented by the indictment and are a necessary part of the defendant's case. The defendant offers to prove by the witness Carroll Shuff that he has in his possession a copy of the complete transcript of the testimony given by the defendant Ingels before the grand jury on March 27th and March 29, 1939, and the defendant further offers a complete transcript of his testimony in evidence as being the entire and complete record of the testimony of the defendant given before the grand jury from which excerpts or portions have been read by the witness."

Apparently, appellant's objection to Mr. Shuff's testimony was based, first, upon the ground that appellant had not been permitted to examine the transcription of the reporter's notes prior to the trial, and second, upon the fact that Mr. Shuff's testimony in the

STATE v. INGELS. 705
July 1940] Opinion Per BEALS, J.

first instance was limited to only portions of appellant's testimony before the grand jury.

Upon the record, we find no merit in appellant's assignments of error above referred to.

[13] Appellant assigns error upon the admission, over his objection, of the testimony of seven witnesses called by the state - one as a witness in chief, and six on rebuttal. These witnesses testified concerning contributions to the campaign fund which they had made to appellant. Three of these witnesses were not named in either list of contributors set forth in the indictment. Others were included in the list which the state alleged appellant gave to the grand jury as names of the contributors to the fund. Concerning these witnesses, the indictment did not allege the giving of false testimony by appellant as to the amount of the contributions made by the witnesses. On the stand, the witnesses testified that they had delivered money to appellant as their contributions to the campaign fund, some of the witnesses testifying that the amounts which they had delivered to appellant exceeded the amounts which he had testified before the grand jury that the witnesses had delivered to him.

Appellant contends that the testimony of the witnesses concerned offenses not charged, was at variance with the charge, and that the indictment did not allege that appellant had committed any perjury with reference to these particular witnesses or their contributions, or that he had concealed from the grand jury anything in connection therewith.

The indictment alleged that appellant testified before the grand jury that certain persons only, whom he named, had contributed to the fund, whereas in fact other named persons had contributed thereto. As above stated, the names of some of the seven witnesses were not included in either list.

706 STATE v. INGELS.
Opinion Per BEALS, J. [4 Wn. (2d)

On cross-examination, appellant had named persons who had contributed, and testified as to the amount of each contribution.

Appellant argues that his objections to this testimony should have been sustained, while respondent contends that the testimony was admissible, as tending to prove that appellant knowingly and intentionally had testified falsely.

Some of the general rules of evidence do not apply to trials for perjury. In 1 Wharton's Criminal Evidence (11th ed.), 322, § 262, is found the following text:

"As stated elsewhere, other offenses are inadmissible when offered for the purpose of proving the crime charged, or to show that the defendant would be likely to commit the crime with which he is charged. But the evidence of other crimes is admissible to show motive, and, where relevant for this purpose, the admissibility is not affected by the fact that such evidence may prove other crimes," and on p. 324, § 263, the following:

"In perjury, it is relevant to show that the accused testified falsely in immaterial matters as well, to show intention and negative the idea of mistake."