Proposed Jury Instructions for Perjury

NOTICE TO COUNSEL AND JUDGES: As provided in the Court's Order accepting the proposed jury instructions for a period of working review, the Court's provisional approval "is for the purpose of refining and testing the application and accuracy of the pattern instructions and does not ensure error-free trials, and their use does not carry a no-reversal guarantee. It is not intended that this provisional acceptance is a final approval of the content of any instruction and each judge may use or refuse any instruction as he or she sees fit[,]" according to law. (emphasis added).

PERJURY

______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is Perjury. One of two verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of Perjury; and (2) not guilty.
    Perjury is committed when any person wilfully testifies falsely under an oath or affirmation lawfully administered in a trial of the witness or any other person for a felony, concerning a material matter or thing.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of Perjury, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.     The Defendant, ______________________________,
2.     in __________________ County, West Virginia,
3.     on or about the _____ day of ________________, 199__,
4.     did testify falsely as follows, to-wit:_____________________________________ ______________________________________________________________________
5.     in a trial in the Circuit Court of _______________ County,     

6.     of ______________________________ who was then tried in that Court,
7.     upon the charge of __________________________,
8.     which charge was at that time a felony offense,
9.     which testimony the Defendant ______________________________ knew was false,
10.     and that the Defendant ______________________________ wilfully and absolutely testified falsely,
11.     and that the Defendant ______________________________ at the time he so testified was under (an oath) (an affirmation) to speak the truth,
12.     which (oath) (affirmation) was lawfully administered by ________________________ to the Defendant ______________________________,
13.     that ______________________________ was the ([deputy] Clerk of the Circuit Court) (Judge of the Circuit Court) and as such had competent authority under law to administer such (oath) (affirmation),
14.     that in such felony trial the said testimony of the Defendant ______________________________ was as to a material (matter) (thing).
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Perjury, you may find ______________________________ guilty of Perjury as charged. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Perjury, you shall find the Defendant ______________________________ not guilty.

COMMENT

PERJURY


1.     W.Va. Code, §61-5-1, "Perjury And Subornation of Perjury".
2.     W.Va. Code, §61-5-2, "False Swearing".
3.     State v. Wade, 174 W.Va. 381, 327 S.E. 2d 142 (1985); State v. Schoonover, 146 W.Va. 1036, 124 S.E. 2d 340 (1962); State v. Crowder, 146 W.Va. 810, 123 S.E. 2d 42 (1961); State v. Justice, 130 W.Va. 662, 44 S.E. 2d 859 (1947); cert. denied, 333 U.S. 844, 68 S.Ct. 662, 92 L. Ed. 1128 (1948); State v. Rhome, 109 W.Va. 724, 156 S.E. 69 (1930).
4.     State v. Wade, Supra. The defendant must have been under oath or affirmation lawfully administered by one authorized to administer the oath or affirmation.
5.     State v. Crowder, Supra. The Court held that the elements of perjury or false swearing are as follows: "Wilfully, knowingly and absolutely".

PERJURY

(with lesser included offense)


______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is Perjury. One of three verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of Perjury; (2) guilty of False Swearing; and (3) not guilty.
    Perjury is committed when any person wilfully testifies falsely under an oath or affirmation lawfully administered in a trial of the witness or any other person for a felony, concerning a material matter or thing.
    False Swearing is committed when any person wilfully testifies falsely under oath or affirmation lawfully administered in a trial of the witness or any other person for a felony, concerning a matter or thing not material, or on any occasion other than a trial for a felony concerning any matter or thing material or not material.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of Perjury, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in __________________ County, West Virginia,

3.      on or about the _____ day of ________________, 199__,
4.      did testify falsely on a material matter as follows, to-wit: ______________________ _______________________________________________________________________
5.      in a trial in the Circuit Court of _______________ County,    
6.      of ______________________________ who was then tried in that Court,
7.      upon the charge of __________________________,
8.      which charge was at that time a felony offense,
9.      which testimony the Defendant ______________________________ knew was false,
10.      and that the Defendant ______________________________ wilfully and absolutely testified falsely,
11.      and that the Defendant ______________________________ at the time he so testified was under (an oath) (an affirmation) to speak the truth,
12.      which (oath) (affirmation) was lawfully administered by ________________________ to the Defendant ______________________________,
13.      that ______________________________ was the ([deputy] Clerk of the Circuit Court) (Judge of the Circuit Court) and as such had competent authority under law to administer such (oath) (affirmation),
14.      that in such felony trial the said testimony of the Defendant ______________________________ was as to a material (matter) (thing).
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these  elements of Perjury, you may find ______________________________ guilty of Perjury as charged. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Perjury, you shall find the Defendant ______________________________ not guilty (and deliberate the lesser included offense as hereinafter instructed).
    Before the Defendant, ______________________________ can be convicted of False Swearing, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in __________________ County, West Virginia,
3.      on or about the _____ day of ________________, 199__,
4.      did testify falsely as follows, to-wit: ____________________ ______________________________________________________________________ ___________________________________________________________,
5.      in a trial in the Circuit Court of _______________ County,     
6.      of ______________________________ who was then tried in that Court,
7.      upon the charge of __________________________,
8.      which charge was at that time a felony offense,
9.      which testimony the Defendant ______________________________ knew was false,
10.      and that the Defendant ______________________________ wilfully and absolutely testified falsely,

11.      and that the Defendant ______________________________ at the time he so testified was under (an oath) (an affirmation) to speak the truth,
12.      which (oath) (affirmation) was lawfully administered by ______________________ to the Defendant ______________________________,
13.      that ______________________________ was the ([Deputy] Clerk of the Circuit Court) (Judge of the Circuit Court) and as such had competent authority under law to administer such (oath) (affirmation).
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of False Swearing, you may find ______________________________ guilty of False Swearing as charged. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of False Swearing, you shall find the Defendant ______________________________ not guilty.

COMMENT

PERJURY

(with lesser included offense)


1.      W.Va. Code, §61-5-1, "Perjury And Subornation of Perjury".
2.      W.Va. Code, §61-5-2, "False Swearing".
3.      State v. Wade, 174 W.Va. 381, 327 S.E. 2d 142 (1985); State v. Schoonover, 146 W.Va. 1036, 124 S.E. 2d 340 (1962); State v. Crowder, 146 W.Va. 810, 123 S.E. 2d 42 (1961); State v. Justice, 130 W.Va. 662, 44 S.E. 2d 859 (1947); cert. denied, 333 U.S. 844, 68 S.Ct. 662, 92 L. Ed. 1128 (1948); State v. Rhome, 109 W.Va. 724, 156 S.E. 69 (1930).
4.      State v. Wade, Supra. The defendant must have been under oath or affirmation lawfully administered by one authorized to administer the oath or affirmation.
5.      State v. Crowder, Supra. The Court held that the elements of perjury or false swearing are as follows: "Wilfully, knowingly and absolutely".

 

FALSE SWEARING

______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is False Swearing. One of two verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of False Swearing; and (2) not guilty.
    False Swearing is committed when any person wilfully testifies falsely under oath or affirmation lawfully administered in a trial of the witness or any other person for a felony, concerning a matter or thing not material, or on any occasion other than a trial for a felony concerning any matter or thing material or not material.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of False Swearing, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in __________________ County, West Virginia,
3.      on or about the _____ day of ________________, 199__,
4.      did testify falsely as follows, to-wit: ______________________________ ____________ ____________________________________________________________,
5.      in a trial in the Circuit Court of _______________ County,    

6.      of ______________________________ who was then tried in that Court,
7.      upon the charge of __________________________,
8.      which charge was at that time a felony offense,
9.      which testimony the Defendant ______________________________ knew was false,
10.      and that the Defendant ______________________________ wilfully and absolutely testified falsely,
11.      and that the Defendant ______________________________ at the time he so testified was under (an oath) (an affirmation) to speak the truth,
12.      which (oath) (affirmation) was lawfully administered by ___________________________ to the Defendant ______________________________,
13.      that ______________________________ was the ([Deputy] Clerk of the Circuit Court) (Judge of the Circuit Court) and as such had competent authority under law to administer such (oath) (affirmation).
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of False Swearing, you may find ______________________________ guilty of False Swearing as charged. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of False Swearing, you shall find the Defendant ______________________________ not guilty.

COMMENT

FALSE SWEARING


1.      W.Va. Code, §61-5-1, "Perjury And Subornation of Perjury".
2.      W.Va. Code, §61-5-2, "False Swearing".
3.      State v. Wade, 174 W.Va. 381, 327 S.E. 2d 142 (W.Va. 1985); State v. Schoonover, 146 W.Va. 1036, 124 S.E. 2d 340 (1962); State v. Crowder, 146 W.Va. 810, 123 S.E. 2d 42 (1961); State v. Justice, 130 W.Va. 662, 44 S.E. 2d 859 (1947); cert. denied, 333 U.S. 844, 68 S.Ct. 662, 92 L. Ed. 1128 (1948); State v. Rhome, 109 W.Va. 724, 156 S.E. 69 (1930).
4.      State v. Wade, Supra. The defendant must have been under oath or affirmation lawfully administered by one authorized to administer the oath or affirmation.
5.      State v. Crowder, Supra. The Court held that the elements of perjury or false swearing are as follows: "Wilfully, knowingly and absolutely".
6.      Farber v. Douglas, 174 W.Va. 381, 327 S.E. 2d 142 (1985). The oath or affirmation must be necessary to the proceeding.

 

FALSE SWEARING

(where false testimony procured by another
at a felony trial)


______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is False Swearing. One of two verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of False Swearing; and (2) not guilty.
    False Swearing is committed when any person wilfully, knowingly and absolutely testifies falsely under oath or affirmation lawfully administered in a trial of the witness or any other person for a felony, concerning a matter or thing not material, or on any occasion other than a trial for a felony concerning any matter or thing material or not material, or procures another person to commit false swearing.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of False Swearing, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in __________________ County, West Virginia,
3.      on or about the _____ day of ________________, 199__,

4.      did intentionally and wilfully procure and induce ______________________________ a witness, to commit false swearing and testify falsely to-wit:_________________ ____________________________________________________________________, and,
5.      which testimony occurred in a trial in the Circuit Court of _______________ County,     
6.      of ______________________________ who was then tried in that Court,
7.      upon the charge of __________________________,
8.      which charge was at that time a felony offense,
9.      that such testimony was false,
10.      and that the witness ______________________________ knew that such testimony was false,
11.      and that the witness ______________________________ wilfully, knowingly and absolutely testified falsely,
12.      and that the witness ______________________________ at the time he so testified was under (an oath) (an affirmation) to speak the truth,
13.      which (oath) (affirmation) was lawfully administered by ______________________________ to the witness ______________________________,
14.      that ______________________________ was the ([deputy] Clerk of the Circuit Court) (Judge of the Circuit Court) and as such had competent authority under law to administer such (oath) (affirmation),
15.      that in such felony trial the said testimony of the witness ______________________________ was as to a non-material matter.

    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of False Swearing, you may find ______________________________ guilty of False Swearing as charged. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of False Swearing, you shall find the Defendant ______________________________ not guilty.

COMMENT

FALSE SWEARING

(where false testimony procured by another 
at a felony trial)


1.      W.Va. Code, §61-5-1, "Perjury And Subornation of Perjury".
2.      W.Va. Code, §61-5-2, "False Swearing".
3.      State v. Wade, 174 W.Va. 381, 327 S.E. 2d 142 (1985); State v. Schoonover, 146 W.Va. 1036, 124 S.E. 2d 340 (1962); State v. Crowder, 146 W.Va. 810, 123 S.E. 2d 42 (1961); State v. Justice, 130 W.Va. 662, 44 S.E. 2d 859 (1947); cert. denied, 333 U.S. 844, 68 S.Ct. 662, 92 L. Ed. 1128 (1948); State v. Rhome, 109 W.Va. 724, 156 S.E. 69 (1930).
4.      State v. Wade, Supra. The defendant must have been under oath or affirmation lawfully administered by one authorized to administer the oath or affirmation.
5.      State v. Crowder, Supra. The Court held that the elements of perjury or false swearing are as follows: "Wilfully, knowingly and absolutely".
6.      Farber v. Douglas, 174 W.Va. 381, 327 S.E. 2d 142 (1985). The oath or affirmation must be necessary to the proceeding.

 

FALSE SWEARING ON ANY OCCASION OTHER THAN

A TRIAL FOR A FELONY OFFENSE


______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is False Swearing. One of two verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of False Swearing; and (2) not guilty.
    False Swearing is committed when any person wilfully testifies falsely under oath or affirmation lawfully administered in a trial of the witness or any other person for a felony, concerning a matter or thing not material, or on any occasion other than a trial for a felony concerning any matter or thing material or not material.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of False Swearing, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in __________________ County, West Virginia,
3.      on or about the _____ day of ________________, 199__,
4.      did wilfully (testify) (disclose information) (answer interrogatories) as follows, to- wit:_______________________________________________________________

______________________________________________________________ __________
5.      in a:    (proceeding before the Grand Jury of the Circuit Court of _________________ County),
(a hearing in the Circuit Court of _______________ County), (hearing in the Circuit Court of _______________ County, before the Family Law     Master),
(deposition in a civil case, to-wit: _______________ vs. _______________, civil action     number _______________, pending in the Circuit Court of _______________     County),
(answers to interrogatories in a civil case, to-wit: _______________ vs.          _______________, civil action number _______________, pending in the Circuit     Court of _______________ County)
(affidavit in a civil case, to-wit: _______________ vs. _______________, civil action     number _______________, pending in the Circuit Court of _______________     County),
(Financial Disclosure Form in a civil case, to-wit: _______________ vs.          _______________, civil action number _______________, pending in the Circuit     Court of _______________ County),
(affidavit in a civil case, to-wit: _______________ vs. _______________, civil action     number _______________, pending in the Circuit Court of _______________ County     before the Family Law Master),
6.      which (testimony) (information disclosed) (answers to interrogatories) was false,

7.      and that the Defendant ______________________________ knew that such (testimony) (information disclosed) (answers to interrogatories) was false,
8.      and that the Defendant ______________________________ willfully and absolutely testified falsely,
9.      and that the Defendant ______________________________ at the time he so (testified) (disclosed information) (answered interrogatories) was under an (oath) (affirmation) to speak the truth,
10.      which (oath) (affirmation) was lawfully administered by ___________________________ to the Defendant ______________________________,
11.      that ______________________________ was the ([Deputy] Clerk of the Circuit Court) (Judge of the Circuit Court) (family law master) (Notary Public)and as such had competent authority under law to administer such (oath) (affirmation).
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of False Swearing, you may find ______________________________ guilty of False Swearing as charged. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of False Swearing, you shall find the Defendant ______________________________ not guilty.

COMMENT

FALSE SWEARING ON ANY OCCASION OTHER THAN

A TRIAL FOR A FELONY OFFENSE


1.      W.Va. Code, §61-5-1, "Perjury And Subornation of Perjury".
2.      W.Va. Code, §61-5-2, "False Swearing".
3.      State v. Wade, 174 W.Va. 381, 327 S.E. 2d 142 (1985); State v. Schoonover, 146 W.Va. 1036, 124 S.E. 2d 340 (1962); State v. Crowder, 146 W.Va. 810, 123 S.E. 2d 42 (1961); State v. Justice, 130 W.Va. 662, 44 S.E. 2d 859 (1947); cert. denied, 333 U.S. 844, 68 S.Ct. 662, 92 L. Ed. 1128 (1948); State v. Rhome, 109 W.Va. 724, 156 S.E. 69 (1930).
4.      State v. Wade, Supra. The defendant must have been under oath or affirmation lawfully administered by one authorized to administer the oath or affirmation.
5.      State v. Crowder, Supra. The Court held that the elements of perjury or false swearing are as follows: "Wilfully, knowingly and absolutely".
6.      Farber v. Douglas, 174 W.Va. 381, 327 S.E. 2d 142 (1985). The oath or affirmation must be necessary to the proceeding.

 

FALSE SWEARING

(where false testimony procured by another

at a misdemeanor trial, grand jury, civil

trial, civil hearing, deposition, interrogatories)


______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is False Swearing. One of two verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of False Swearing; and (2) not guilty.
    False Swearing is committed when any person wilfully, knowingly and absolutely testifies falsely under oath or affirmation lawfully administered in a trial of the witness or any other person for a felony, concerning a matter or thing not material, or on any occasion other than a trial for a felony concerning any matter or thing material or not material, or procures another person to commit false swearing.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of False Swearing, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in __________________ County, West Virginia,
3.      on or about the _____ day of ________________, 199__,

4.      did intentionally and wilfully procure and induce ______________________________ a witness, to commit false swearing and testify falsely to-wit:_________________ _____________________________________________________________________, and,
5.      which testimony occurred:
(in a misdemeanor trial in the _______________Court of _______________ County) (in a proceeding before the Grand Jury of the Circuit Court _______________,     County)
(in a hearing in the Circuit Court of _______________ County) (in a hearing in the     Circuit Court of _______________ County, before the Family Law Master) (in a deposition in a civil case, to-wit: _______________vs. _______________, civil     action number _______________, pending in the Circuit Court of _______________     County)
(in answers to interrogatories in a civil case, to-wit:          _______________vs._______________, civil action number _______________, pending     in the Circuit Court of _______________ County)
(in an affidavit in a civil case, to-wit: _______________vs._______________, civil     action number _______________, pending in the Circuit Court of _______________     County)     (in a Financial Disclosure Form in a civil case, to-wit:          _______________vs._______________, civil action number _______________, pending     in the Circuit Court of _______________ County, before the Family Law Master).
6.      and that such (testimony) (information disclosed) (answer to interrogatories) was false,
7.      and that the witness ______________________________ knew that such (testimony) (information disclosed) (answer to interrogatories) was false,
8.      and that the witness ______________________________wilfully, knowingly and absolutely (testified) (disclosed information) (answered interrogatories) falsely,
9.      and that the witness ______________________________ at the time he so (testified) (disclosed information) (answered interrogatories) was under (an oath) (an affirmation) to speak the truth,
10.      which (oath) (affirmation) was lawfully administered by ______________________________ to the witness ______________________________,
11.      that ______________________________ was the ([deputy] Clerk of the Circuit Court) (Judge of the Circuit Court) (Magistrate) (Family Law Master) (Notary Public) and as such had competent authority under law to administer such (oath) (affirmation).
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of False Swearing, you may find ______________________________ guilty of False Swearing as charged.

COMMENT

FALSE SWEARING

(where false testimony procured by another

at a misdemeanor trial, grand jury, civil

trial, civil hearing, deposition, interrogatories)


1.      W.Va. Code, §61-5-1, "Perjury And Subornation of Perjury".
2.      W.Va. Code, §61-5-2, "False Swearing".
3.      State v. Wade, 174 W.Va. 381, 327 S.E. 2d 142 (1985); State v. Schoonover, 146 W.Va. 1036, 124 S.E. 2d 340 (1962); State v. Crowder, 146 W.Va. 810, 123 S.E. 2d 42 (1961); State v. Justice, 130 W.Va. 662, 44 S.E. 2d 859 (1947); cert. denied, 333 U.S.844, 68 S.Ct. 662, 92 L. Ed. 1128 (1948); State v. Rhome, 109 W.Va. 724, 156 S.E. 69 (1930).
4.      State v. Wade, Supra. The defendant must have been under oath or affirmation lawfully administered by one authorized to administer the oath or affirmation.
5.      State v. Crowder, Supra. The Court held that the elements of perjury or false swearing are as follows: "Wilfully, knowingly and absolutely".
6.      Farber v. Douglas, 174 W.Va. 381, 327 S.E. 2d 142 (1985). The oath or affirmation must be necessary to the proceeding.

 

SUBORNATION OF PERJURY

______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is Subornation Of Perjury. One of two verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of Subornation Of Perjury; and (2) not guilty.
    Perjury is committed when any person wilfully, knowingly and absolutely testifies falsely under an oath or affirmation lawfully administered in a trial of the witness or any other person for a felony, concerning a material matter or thing.
    Subornation of Perjury is committed when any person intentionally and wilfully induces or procures another person to commit perjury and the witness so induced or procured commits the offense of perjury.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of Subornation Of Perjury, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in __________________ County, West Virginia,
3.      on or about the _____ day of ________________, 199__,

4.      did intentionally and wilfully procure and induce ______________________________ a witness to commit perjury and testify falsely to-wit: _________________________ ____________________________________________________________________, and,
5.      which testimony occurred in a trial in the Circuit Court of _______________ County
6.      of ______________________________ who was then tried in that Court,
7.      upon the charge of __________________________,
8.      which charge was at that time a felony offense,
9.      that such testimony was false,
10.      and that the witness ______________________________ knew that such testimony was false,
11.      and that the witness ______________________________ wilfully, knowingly and absolutely testified falsely,
12.      and that the witness ______________________________ at the time he so testified was under (an oath) (an affirmation) to speak the truth,
13.      which (oath) (affirmation) was lawfully administered by ______________________________ to the witness ______________________________,
14.      that ______________________________ was the ([deputy] Clerk of the Circuit Court) (Judge of the Circuit Court) and as such had competent authority under law to administer such (oath) (affirmation),
15.      that in such felony trial the said testimony of the witness ______________________________ was as to a material (matter) (thing).
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Subornation Of Perjury, you may find ______________________________ guilty of Subornation Of Perjury as charged. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Subornation Of Perjury, you shall find the Defendant ______________________________ not guilty.

COMMENT

SUBORNATION OF PERJURY


1.      W.Va. Code, §61-5-1, "Perjury And Subornation of Perjury".
2.      W.Va. Code, §61-5-2, "False Swearing".
3.      W.Va. Code, §61-5-3 "Penalties For Perjury And Subordination Of Perjury And False Swearing".
4.      Farber v. Douglas, 178 W.Va. 491, 361 S.E. 2d 456 (1985); State v. Wade, 174 W.Va. 381, 327 S.E. 2d 142 (1985); State v. Schoonover, 146 W.Va. 1036, 124 S.E. 2d 340 (1962); State v. Justice, 130 W.Va. 662, 44 S.E. 2d 859 (1947); cert. denied, 333 U.S. 844, 68 S.Ct. 662, 92 L. Ed. 1128 (1948); State v. Rhome, 109 W.Va. 724, 156 S.E. 69 (1930).
5.      State v. Wade, Supra. The witness must have been under oath or affirmation lawfully administered by one authorized to administer the oath or affirmation.
6.      State v. Crowder, 146 W.Va. 810, 123 S.E. 2d 42 (1961). "Wilfully, knowingly and absolutely" are cited as elements of the crimes of false swearing or perjury.
7.      Farber v. Douglas, Supra. The oath or affirmation must be necessary to the proceeding.

 

SUBORNATION OF PERJURY

(with lesser included offense)

______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is Subornation Of Perjury. One of three verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of Subornation Of Perjury; (2) guilty of False Swearing; and (3) not guilty.
    Perjury is committed when any person wilfully, knowingly and absolutely testifies falsely under an oath or affirmation lawfully administered in a trial of the witness or any other person for a felony, concerning a material matter or thing.
    False Swearing is committed when any person wilfully, knowingly and absolutely testifies falsely under oath or affirmation lawfully administered in a trial of the witness or any other person for a felony, concerning a matter or thing not material, or on any occasion other than a trial for a felony concerning any matter or thing material or not material, or procures another person to commit false swearing.
    Subornation of Perjury is committed when any person intentionally and wilfully induces or procures another person to commit perjury and the witness so induced or procured commits the offense of perjury.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of Subornation Of Perjury, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in __________________ County, West Virginia,
3.      on or about the _____ day of ________________, 199__,
4.      did intentionally and wilfully procure and induce ______________________________ a witness to commit perjury and testify falsely to-wit: _________________________ _____________________________________________________________________, and,
5.      which testimony occurred in a trial in the Circuit Court of _______________ County,
6.      of ______________________________ who was then tried in that Court,
7.      upon the charge of __________________________,
8.      which charge was at that time a felony offense,
9.      that such testimony was false,
10.      and that the witness ______________________________ knew that such testimony was false,
11.      and that the witness ______________________________ wilfully, knowingly and absolutely testified falsely,
12.      and that the witness ______________________________ at the time he so testified was under (an oath) (an affirmation) to speak the truth,
13.      which (oath) (affirmation) was lawfully administered by ______________________________ to the witness ______________________________,

14.      that ______________________________ was the ([deputy] Clerk of the Circuit Court) (Judge of the Circuit Court) and as such had competent authority under law to administer such (oath) (affirmation),
15.      that in such felony trial the said testimony of the witness ______________________________ was as to a material (matter) (thing).
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Subornation Of Perjury, you may find ______________________________ guilty of Subornation Of Perjury as charged. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Subornation Of Perjury, you shall find the Defendant ______________________________ not guilty (and deliberate on the lesser included offense as hereinafter instructed).
    Before the Defendant, ______________________________ can be convicted of Subornation Of False Swearing, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in __________________ County, West Virginia,
3.      on or about the _____ day of ________________, 199__,
4.      did intentionally and wilfully procure and induce ______________________________

a witness to commit False Swearing and testify falsely to-wit: _________________ ____________________________________________________________________, and,
5.      which testimony occurred in a trial in the Circuit Court of _______________ County,
6.      of ______________________________ who was then tried in that Court,
7.      upon the charge of __________________________,
8.      which charge was at that time a felony offense,
9.      that such testimony was false,
10.      and that the witness ______________________________ knew that such testimony was false,
11.      and that the witness ______________________________ wilfully, knowingly and absolutely testified falsely,
12.      and that the witness ______________________________ at the time he so testified was under (an oath) (an affirmation) to speak the truth,
13.      which (oath) (affirmation) was lawfully administered by ______________________________ to the witness ______________________________,
14.      that ______________________________ was the ([deputy] Clerk of the Circuit Court) (Judge of the Circuit Court) and as such had competent authority under law to administer such (oath) (affirmation).
15.      that in such trial said testimony was as to a non-material matter.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of False Swearing, you may find ______________________________ guilty of False Swearing as charged. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of False Swearing, you shall find the Defendant ______________________________ not guilty.

COMMENT

SUBORNATION OF PERJURY

(with lesser included offense)

1.      W.Va. Code, §61-5-1, "Perjury And Subornation of Perjury".
2.      W.Va. Code, §61-5-2, "False Swearing".
3.      W.Va. Code, §61-5-3 "Penalties For Perjury And Subordination Of Perjury And False Swearing".
4.      Farber v. Douglas, 178 W.Va. 491, 361 S.E. 2d 456 (1985); State v. Wade, 174 W.Va. 381, 327 S.E. 2d 142 (1985); State v. Schoonover, 146 W.Va. 1036, 124 S.E. 2d 340 (1962); State v. Justice, 130 W.Va. 662, 44 S.E. 2d 859 (1947); cert. denied, 333 U.S. 844, 68 S.Ct. 662, 92 L. Ed. 1128 (1948); State v. Rhome, 109 W.Va. 724, 156 S.E. 69 (1930).
5.      State v. Wade, Supra. The witness must have been under oath or affirmation lawfully administered by one authorized to administer the oath or affirmation.
6.      State v. Crowder, 146 W.Va. 810, 123 S.E. 2d 42 (1961). "Wilfully, knowingly and absolutely" are cited as elements of the crimes of false swearing or perjury.
7.      Farber v. Douglas, Supra. The oath or affirmation must be necessary to the proceeding.