                            No. 13476
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                 1977


THE STATE OF MONTANA,
                       Plaintiff and Appellant,



JACK M. SCANLON,
                       Defend-antand Respondent.


Appeal from:   District Court of the First Judicial District,
               Honorable Gordon R.Bennett, Judge presiding.
Counsel of Record:
    For Appellant:

         Hon. Mike Greely, Attorney General, Helena, Montana
         Robert Keller, Special Assistant Attorney General,
          argued, Helena, Montana
    For Respondent :
         Donald Garrity argued, Helena, Montana


                                    Submitted:    February 2 3 , 1977
                                        Decided AUF   2 4 1677

Filed:



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               .       R N E ~
                                   clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.


           This case involves proceedings before a grand jury in Lewis

and Clark County in which the defendant was indicted on 18 counts
of perjury relating to his testimony before the grand jury as to
how his clients who had industrial accident claims came to him.
In State v. Scanlon, 33 St.Rep. 1355 (December 30, 19761, this

Court affirmed the dismissal of 16 of the 18 counts by the district

court, but ordered a trial on two of the counts (counts 9 and 10).
Thereafter, defendant petitioned for a rehearing, and the state
petitioned for a rehearing, the thrust of both was that the defend-
ant and the state requested a dismissal of all 18 counts of perjury.
This Court granted the petitions for rehearing.

        As part of the grand jury investigation into the handling
of industrial accident claims by the Industrial Accident Board and

by attorneys in Montana, the grand jury called defendant to testify
as to how the attorney-client relationship was initiated.    The
purpose of this inquiry was to determine if there were leaks from

the Industrial Accident Board to certain lawyers in Montana con-
cerning persons in Montana who had filed industrial accident claims
with the Board.    The focus was whether anyone within the Industrial
Accident Board either referred claimants to the defendant or whether
they provided him with names of claimants who would be potential
clients.
       When he was first called to testify before the grand jury,
defendant refused to answer questions asked him, asserting his
right against self-incrimination.    Thereafter, in an effort to find
how defendant acquired his clients, the grand jury granted immunity
against prosecution to the defendant except prosecution for con-
tempt and perjury.    For two days defendant testified before the

grand jury, and denied he solicited his clients and explained      how
they became his clients.    As a result of this testimony the grand

jury indicted defendant on 18 counts of perjury.

          The district court dismissed each of the 18 counts based
either on lack of direct evidence as to the falsity of the statement,

lack of corroboration as to the falsity of the statement, or lack
of materiality.

          Several of the counts against defendant arose out of trans-
actions where defendant testified the clients were referred to him

by an uncle and aunt, Mr. and Mrs. Richard Mullins, or by Mr. and

Mrs. Herman Myers, long-time family friends.    At the time of his

testimony before the grand jury, all of these persons had died.       The
clients who appeared before the grand jury denied ever knowing any
of the people named.    The district court dismissed these counts for
lack of direct evidence as to the falsity.    These dismissals were

proper.    These counts were not supported by direct evidence of the
falsity of the defendant's statements.

          This appeal concerns the evidentiary standard required for
the proof of perjury, which essentially revolves around three
statutes.

          Section 94-7-202(7), R.C.M. 1947, provides:
          "No person shall be convicted of an offense under this
          section where proof of falsity rests solely upon the
          testimony of a single person other than the defendant."
          Section 93-401-1, R.C.M. 1947, provides:
          "The direct evidence of one witness who is entitled
          to full credit is sufficient for proof of any fact,
          except perjury and treason."
          Section 93-1401-2, R.C.M. 1947, provides:
          "Perjury and treason must be proved by testimony of
          more than one witness; treason by the testimony of two
          witnesses to the same overt act; and perjury by the
          testimony of two witnesses, or one witness and corrob-
          orating circumstances." (Emphasis added.)
          The basis for unusually stringent evidence requirements is

set out in an article in 19 UCLA Law Review 638, 642, 643 entitled
"Perjury and Related Offenses Under the Proposed California Criminal

Code."   That same article points out at p. 645, that Tentative Draft
No. 6 of the Model Penal Code on this point reads:
         "Corroboration. Proof of guilt beyond a reasonable
         doubt shall suffice for conviction under this section
         as in other criminal cases, without special require-
         ment of two witnesses or corroborating circumstances.
         "[Alternate, rejected by the council: No person
         shall be convicted of an offense under this Section
         where proof of falsity rests solely upon contradic-
         tion by testimony of a person other than the de-
         fendant. ] "
         The official draft of the Model Penal Code, which served as
the basis for section 94-7-202(7), R.C.M. 1947, used the alternate
provision.   In Montana Criminal Code, 1973, Annotated, Prof. William

F. Crowley - Editor, at page 293 the annotator points out:

         "The common law rule that falsehood be established
         by two witnesses is adopted in part by subsection
         (7). At the common law this rule was adopted to
         deal with the problem of an oath against an oath.
         The modern rationale is a policy determination based
         on a balancing of the need for protection of wit-
         ness and the need to maintain the sanctions for
         false testimony. In adopting the requirement of
         more than one witness Montana has followed the
         majority of states in affording additional protec-
         tion to the witness at the possible cost of being
         unable to convict an apparent perjurer. * * * "

As noted above, the standard of proof required in Montana under the
new code section 94-7-202(7), R.C.M. 1947, requires that the proof

of the falsity of a statement must be more than the contradiction
testimony of a person other than the defendant.    The legislature

recently made this policy determination and despite the contrary rule
urged by the state, this is the rule in Montana.
         The exact requirements of this evidentiary rule in perjury
cases are apparent from an examination of the California cases
interpreting the section of the California Civil Code, identical to

Montana's section 93-1401-2, R.C.M.   1947.   In an article entitled
"Proof of Perjury:   The Two Witness Requirement", 35 Southern Cali-
fornia Law Review 86, 97, it is stated:
         "In summary, the California attitude is, and remains,
         that direct testimony of at least one witness must
         always be introduced to prove the falsity of the
         statement set forth in the indictment; circumstantial
         evidence alone will not support a perjury conviction."

           In People v. Roubus, 53 Cal.Rptr. 281, 417 P.2d 865, 866,
867, the California Supreme Court, sitting In Bank, outlined this
evidentiary requirement:
         "Perjury must be proved by the testimony of two
         witnesses, or of one witness and corroborating
         circumstances. * * * This statutory provision has
         been interpreted as prescribing not only the amount
         but also the kind of evidence necessary to support
         a perjury conviction. * * * Direct, as distinguished
         from circumstantial, evidence of the falsity of the
         defendant's testimony by at least one witness is
         generally required. * * * This does not mean that
         there must be a denial in the very words of the
         defendant's testimony * * * but that there must be
         testimony by at least one witness furnishing direct
         evidence of facts contrary to, or absolutely incom-
         patible or physically inconsistent with, that sworn
         to by the accused * * *.Evidence that establishes facts
         from which the falsity of an alleged perjured state-
         ment may or may not be inferred is insufficient under
         the direct evidence rule.* * *
         "The rule requiring proof of falsity by direct evi-
         dence has been criticized. * * * However, this re-
         quirement was early established in this state by
         decisions construing our statutory provision. It is
         noteworthy that a majority of jurisdictions which
         apply the rule that falsity must be proved by the
         testimony of two witnesses, or of one witness and
         corroborating circumstances, hold that circumstantial
         evidence alone is generally insufficient to establish
         falsity. "

           An early Montana case indicated this is the law in Montana
as well.     In State v. Gibbs, 10 Mont. 213, 219, 25 P. 289, it is
said:
           "'It is not necessary that there should be two
           living witnesses in contradiction of the statement
           of the defendant to justify a conviction of perjury.
           It is sufficient if, in addition to one directly
           opposing witness, corroborating circumstances suf-
           ficient to turn the scale and overcome the oath of
           the defendant and the legal presumption of his in-
           nocence are proved.'"
           The Court in Gibbs approved this instruction as to proof of
per jury :
          " ' * * * that such act of perjury has been estab-
          lished to your satisfaction beyond a reasonable
      -   doubt by more than one witness, or that the testi-
          mony of such witness has been corroborated upon
          that point by other facts and circumstances proved
          on the trial. In other words, the direct evidence
          of one witness alone is not sufficient to convict
          of the crime of perjury, unless corroborated by
          other facts and circumstances proved on the trial.'"
In Gibbs the Court was construing the then equivalent code section
to section 93-401-1, R.C.M. 1947.    Section 93-1401-2 had not been
enacted at that time.    In State v. Jackson, 88 Mont. 420, 293 P.
309, the Court cited Gibbs as authority of the requirement that
perjury must be proved by the testimony of two witnesses, or one
witness and corroborating circumstances indicating that this was
the law even prior to the passage of section 93-1401-2, R.C.M.     1947.
          A subsidiary question to be determined regards the nature

of the corroborating circumstances that must be proved.    The rule
in California, that the state argues we should adopt, is stated in
People v. Casanova, 54 Cal.App. 439, 202 P. 45, 47:
          " * * * The statute respecting the quantum of
          evidence necessary in perjury cases will be
          satisfied, if there be the testimony of one
          witness to facts that are absolutely incompatible
          with the innocence of the accused, corroborated
          by circumstances which, of themselves and inde-
          pendently of such directly inculpatory evidence,
          tend, with a reasonable degree of certitude, to
          show that the accused is guilty as charged."
See also:    People v. Pustau, 39 C.A.2d 407, 103 P.2d 224, 228.
          In Gibbs the Court said that "corroborating circumstances
sufficient to turn the scale and overcome the oath of the defendant
and the legal presumption of his innocence" are all that is required.
In People v. Todd, 9 C.A.2d 237, 49 P.2d 611, 614, it is pointed out:
          "It is also well settled that motive and design to
          commit a crime, if proved, may be considered a
          guilty circumstance * * * and consequently may serve
          legally as corroborative evidence; and in this be-
          half it has been repeatedly held that where, as
          here, it is claimed that several offenses have been
          committed as part of one scheme or plan, all of the
          same general character, tending to the same common
          end, evidence thereof may be received to show the
        process or motive and design to commit the
        particular offense with which the accused is
        charged, and as tending to show logically that
        the particular offense for which he is being
        tried was part of such common scheme."
        The second issue involves the requirement that the alleged
perjured statement be material.   The Nontana statute, section 94-7-
202 (3), R.C.M. 1947, provides:
        "Falsification is material, regardless of the
        admissibility of the statement under rules of
        evidence, if it could have affected the course or
        outcome of the proceeding. It is no defense that
        the declarant mistakenly believed the falsification
        to be immaterial. Whether a falsification is material
        in a given factual situation is a question of law."

The Commission Comment points out:
        "The proposed definition of 'materiality' in sub-
        section (3) does not differ substantially from that
        given by prior law."
        In State v. Hall, 88 Mont. 297, 304, 292 P. 734, the Court
said:

        " * * * Also it may be conceded that the general
        rule is that anything so connected with the matter
        at issue as to have a legitimate tendency to prove
        or disprove some material issue by giving weight or
        probability to, or detracting from, the testimony
        of a witness, is material * * * and that, if evi-
        dence is circumstantially material, it is sufficient
        to sustain a perjury charge."

The test for materiality as set out by the statute is not particularly
difficult to meet, it requires only that in the actual factual situ-
ation involved would it be reasonable to find that the defendant's
statement, if believed, could have altered the course of the inves-
tigation.

        The grand jury statute, section 95-1408(c), R.C.M. 1947,
provides :
        "The grand jury shall find an indictment when all
        the evidence before it, taken together, if unex-
        plained or uncontradicted, would, in its judgment,
        warrant a conviction by a trial jury."
While it is the right of the grand jury to return an indictment, it

is, nevertheless, the duty of the courts to determine if there was
t h e r e q u i r e d minimum e v i d e n c e t o p r o v e e a c h o f t h e e l e m e n t s o f t h e

of t h e charge of perjury.                  Both s i d e s c o n c e d e d h e r e t h a t t h e r e was

no more e v i d e n c e which c o u l d go b e f o r e a t r i a l j u r y t h a n what t h e

g r a n d j u r y had a l r e a d y h e a r d .     Accordingly,          t h i s is not a situation

where t h e i n d i c t m e n t i s f a u l t y b u t where t h e d e f e n d a n t c a n b e re-

indicted.         R a t h e r , i t i s a s i t u a t i o n where i f t h e i n d i c t m e n t i s

f a u l t y , t h e defendant cannot again be i n d i c t e d because t h e r e i s no

o t h e r evidence t o p r e s e n t t o t h e grand jury.

             T h i s C o u r t h a s c a r e f u l l y r e v i e w e d a l l c o u n t s and c o n c l u d e

t h a t a l l c o u n t s were p r o p e r l y d i s m i s s e d .     Sixteen of t h e 18 counts

w e r e s i t u a t i o n s where t h e y w e r e n o t s u p p o r t e d by d i r e c t e v i d e n c e

of t h e f a l s i t y of defendant's statements.                       However, c o u n t s 9 a n d 1 0

d e s e r v e more a t t e n t i o n i n d i s c u s s i n g o u r r e a s o n s f o r t h e i r d i s m i s s a l .

          The two c h a r g e s a r e summarized a s f o l l o w s :

         A summary of c o u n t 9 c h a r g e s t h a t J a c k M.               Scanlon, f a l s e l y

t e s t i f i e d t h a t Grace A .     R i e k e r f i r s t c o n t a c t e d him on t h e t e l e p h o n e ,

when i n t r u t h and f a c t he knew t h a t h e had i n s t i g a t e d t h e t e l e p h o n e

conversation with claimant f o r t h e purpose of i n i t i a t i n g a c l i e n t -

a t t o r n e y r e l a t i o n s h i p ; and t h a t he s o t e s t i f i e d t o d e c e i v e and

f r u s t r a t e t h e grand jury i n i t s i n v e s t i g a t i o n c o n t r a r y t o s e c t i o n

94-7-202,       R.C.M.      1947.

         A summary o f c o u n t 1 0 c h a r g e s t h a t d e f e n d a n t f a l s e l y t e s t i -

f i e d t h a t p r i o r t o t h e t e l e p h o n e c a l l from c l a i m a n t h e had n e v e r

h e a r d o f t h e c l a i m a n t n o r t h e f a c t t h a t s h e was i n j u r e d , w h i l e i n

t r u t h and f a c t h e knew t h e c l a i m a n t and t h a t s h e had b e e n i n j u r e d

p r i o r t o e v e r t a l k i n g t o h e r , and h e s o t e s t i f i e d f o r t h e p u r p o s e

o f d e c e i v i n g and f r u s t r a t i n g t h e g r a n d j u r y c o n t r a r y t o s e c t i o n

94-7-202,       R.C.M.      1947.

          The g i s t o f c o u n t 9 i s t h e c o n t r a d i c t o r y s t a t e m e n t s o f a t -

t o r n e y S c a n l o n and           R i e k e r a s t o who c a l l e d t h e o t h e r f i r s t .

S c a n l o n c l a i m s s h e c a l l e d him f i r s t and s h e c l a i m s t h a t S c a n l o n
called her first.          A determination must be made whether attorney
Scanlon's testimony, if false, was material to the grand jury
investigation; that is, would it be reasonable to find that the

defendant's statement, if believed, could have altered the course
of the investigation.          Section 94-7-202(3), R.C.M. 1947, provides
that   I'    * * *   Whether a falsification is material in a given factual
situation is a question of law."         Accordingly, we must determine
if the testimony was material.         We conclude that it was not.

            The focus of the grand jury inquiry was to determine if there
were any personnel within the Industrial Accident Board who were

leaking information concerning claimants' cases to certain attorneys.

The testimony elicited from Mr. and Mrs. Rieker and from attorney
Scanlon must be weighed in light of this inquiry; Was anyone within

the Industrial Accident Board referring claimants to attorney

Scanlon, or were they providing him with the names of potential
clients?
            The testimony centers around Mrs. Rieker, a secretary-
receptionist at the Boulder River School in Boulder; Ron Fuller,

the principal of Jefferson County High School in Boulder; and
attorney Scanlon.         Fuller and Scanlon are close personal friends

dating back to high school days.         Fuller and Mrs. Rieker were
casual acquaintances in Boulder.         Mrs. Rieker's industrial accident
claim occurred at the school when she slipped on the steps and

sustained back or neck injuries.         Fuller had no connection with
the Industrial Accident Board which handled claims sustained by

injured workers.
            Mrs. Rieker testified that it was Ron Fuller, and him alone,
who twice suggested that she obtain a lawyer to handle her claim.
On the first occasion she claims Fuller told her she should see a
lawyer, and he would help her get one.         On the second contact

made by Fuller she claims that Fuller telephoned her and asked her
if she would like to talk to attorney Scanlon who was with Fuller
at the time.    She claims she did talk to Scanlon and he later came
over to her house to discuss her case.

         There was no evidence that Mrs. Rieker became a client of
Scanlon as a result of inside contacts Scanlon had with the Industrial
Accident Board.    There was no evidence that personnel of the Indus-

trial Accident Board were referring possible clients to Scanlon or
providing him with the names of potential clients.    After Mrs. Rieker

testified that it was Fuller who furnished the contact with attorney
Scanlon, there was simply no evidence that personnel of the Indus-
trial Accident Board had leaked information concerning Mrs. Rieker

to attorney Scanlon.    However, when Scanlon was later called before
the grand jury, they wanted to know who had first done the contacting.
Did Plrs. Rieker contact attorney Scanlon first or did Scanlon contact
her first?

         Regardless of the answer given to this question by Scanlon,

it would not have affected the outcome of the proceedings or misled
the grand jury in its investigation into possible leaks from the
Industrial Accident Board.    If they chose to believe Mrs. Rieker,
they could conclude that Fuller telephoned her on behalf of attorney

Scanlon and then put Scanlon on the phone to talk to her about her
                                                                        '
accident claim.    If they chose to believe Scanlon they could con-

clude that Mrs. Rieker went to him on her own volition and that he
could not recall how she happened to call him as an attorney.        either

conclusion suggests a leak to Scanlon from the Industrial ~ccident
Board.    It is clear that Scanlon's testimony was not material to the
grand jury's inquiry.
         Count 9 must be dismissed for yet another reason.   Mrs.

Rieker's testimony that attorney Scanlon called her first was not
corroborated by admissible evidence.   There was only the direct
testimony of Mrs. Rieker that Scanlon called her first.      The only
attempted corroboration was testimony from Mrs. Rieker's husband
that his wife told him that attorney Scanlon had called.        It is

manifest that section 93-1401-2, R.C.M. 1947, which sets out the
requirement of corroboration, contemplates only admissible corrob-
oration.     Here, the testimony was not admissible because it was

hearsay and because it attempted to obtain corroboration from the
same witness who was the source of the direct evidence.
          In State v. Newman, 162 Mont. 450, 457, 513 P.2d 258, we
defined hearsay as follows:
          " * * * 'Hearsay' is testimony or evidence of
          someone's words or conduct outside the court, when
          offered in court to prove the truth of the thing
          being asserted, and thus resting for its value upon
          the credibility of the out-of-court asserter."
Here, the state attempted to use the statement made by Mrs. Rieker
to her husband to prove that Scanlon had actually called Mrs. Rieker

on the telephone.     Its credibility rested not on Mr. Rieker but on

Mrs. Rieker.    This plainly is hearsay.
          The vice of this kind of evidence is even more apparent when

considered in relation to the kind of proof needed for a prima facie
case of perjury.     To allow the testimony of Mr. Rieker as corrobora-
tion would be to fly in the face of Montana statutes requiring cor-
roboration.     Section 93-401-1, R.C.M. 1947, provides that the direct
testimony of one person is not sufficient to prove the crime of per-

jury.     Section 93-1401-2, R.C.M. 1947, requires that "   * * *   per jury

[must be proved] by the testimony of two witnesses, or one witness
and corroborating circumstances."     (Emphasis and bracketed material
added.)    Mrs. Rieker was the only person who testified directly that
attorney Scanlon had called her first and so there was a need for
corroborating circumstances.
          To be admissible, the corroborative evidence must be inde-

pendent of the testimony of the same witness who is the source of
the direct evidence.     See, for example, United States v. Freedman,

445 F.2d 1220 (2ndCir.1971); United States v. Thompson, 379 F.2d
625 (6th Cir. 1967) and United States v. Rose, 215 F.2d 617 (3rd
Cir. 1954), which cases engraft a requirement of corroboration onto
the federal perjury statute.     Here, the grand jury had to rely on
the direct testimony of Mrs. Rieker that attorney Scanlon had called
her first, but also, for corroboration, it had to rely on her indirect

testimony by virtue of her husband testifying to what she told him.
What Mrs. Rieker told her husband is not corroboration under the

perjury statute.
        For these reasons count 9 must be dismissed.

        Count 10 concerns the nature of the proof required for a
charge of perjury, specifically, the requirement of direct evidence.
The gist of count 10 concerns a conflict as to whether attorney
                                           claim
Scanlon knew of Mrs. Rieker's compensation/before the first time he
talked to her about the case.     Scanlon claims he did not; Mrs. Rieker
claims he did.     Regardless of who is right, there is no direct evi-
dence as required by section 93-1401-2 to establish a prima facie
case.

        The only evidence concerning attorney Scanlon's prior knowl-
edge of Mrs. Rieker's claim came from Mr. and Mrs. Rieker.    They

testified Scanlon told them he knew of Mrs. Rieker's claim before
he talked to her on the telephone.    However, this is not direct evi-
dence.    Rather, under section 93-301-10, R.C.M. 1947, it is indirect
evidence.    That section provides:

        "Indirect evidence is that which tends to establish
        the fact in dispute by proving another, and which, though
        true, does not of itself conclusively establish that fact,
        but which affords an inference or presumption of its
        existence. For example, a witness proves an admission
        of the party to the fact in dispute. This proves a fact
        from which the fact in dispute is inferred."
        Under this statute any statement made to them by Scanlon is in
the nature of an admission and, therefore, is indirect evidence of
the fact sought to be proved.    The result is that there is no direct

evidence to sustain a prima facie case of perjury as required by
sections 93-401-1 and 93-1401-2, R.C.M. 1947.   There being no

direct evidence, count 10 must also be dismissed.

     Defendant has raised other issues in his petition for rehear-

ing, but in light of our holding, we find no need to discuss them.

     Counts 9 and 10 are ordered dismissed and the dismissal order

of the district court is affirmed in its entirety.




                                 , / W ~ A,
                                      fl
                                         A
                                    Justice




We Concur:
    ,- -3




     Justices
Mr. Justice John Conway Harrison dissenting:



         I dissent.   As the author of the earlier 4-1 opinion of
this Court from which this rehearing was granted, I find no reason
to change that opinion.

         Two recent opinions of the United States Supreme Court
considering perjury before a grand jury are of import in considera-
tion of the instant case.   Both were decided on May 23, 1977:
United States v. Wong, No. 74-635, 45 LW 4464; United States v.
Washington, No. 74-1106, 45 LW 4465.
         In Wong, the Court reversed the suppression of testimony
of a Chinese woman of limited education given to a grand jury con-
cerning illegal gambling and obstruction of state and local law
enforcement.

         Referring to its holding in United States v. Mandujano,
425 U.S. 564, 96 S.Ct. 1768, 48 L ed 2d 212, the Court, in Wong,
noted:

         " * * * the Fifth Amendment privilege does not con-
         done perjury. It grants a privilege to remain silent
         without risking contempt, but it 'doesnot endow the per-
         son who testified with a license to commit perjury.'
         Glickstein v. United States, 222 U.S. 139, 142 (1911).
         The failure to provide a warning of the privilege, in
         addition to the oath to tell the truth, does not call
         for a different result. The contention is that warn-
         ings inform the witness of the availability of the
         privilege and thus eliminates the claimed dilemma of
         self-incrimination or perjury. Cf. Garner v. United
         States, 424 U.S. 648, 657-658 (1976). However, in
         United States v. Knox, 396 U.S. 77 (1969), the Court
         held that even the predicament of being forced to choose
         between incriminatory truth and falsehood, as opposed to
         refusing to answer, does not justify perjury. * * * "
         In Washington, the Court overruled a lower court's judgment
granting a motion to suppress grand jury testimony and quashing an
indictment on the ground that it was based on evidence obtained in
violation of Fifth Amendment privileges against self-incrimination.
The Court held:
         " * * * But this Court has not decided that the
         grand jury setting presents coercive elements
         which compel witnesses to incriminate themselves.
         Nor have we decided whether any Fifth Amendment
         warnings whatever are constitutionally required
         for grand jury witnesses; moreover, we have no
         occasion to decide these matters today, for even
         assuming that the grand jury setting exerts some
         pressures on witnesses generally or on those who
         may later be indicted, the comprehensive warnings
         respondent received in this case plainly satisfied
         any possible claim to warnings. Accordingly, re-
         spondent's grand jury testimony may properly be
         used against him * * *."

         Further, in Washington, as in the instant case, the defendant
argued that having to invoke the Fifth Amendment before the grand
jury placed him at a disadvantage in the eyes of the grand jury.
This argument entirely overlooks the fact that the grand jury's
historic role is as an investigative body; it is not an arbiter of

guilt or innocence.   Moreover, it is well settled that invocation

of Fifth Amendment privilege in a grand jury proceeding is not admis-
sible in a criminal trial, where guilt or innocence is actually at

stake.   United States v. Wong, supra.
         The same holding and reasoning should, in my opinion, be
applied here.    This is a case that in my opinion should have been

tried to a jury.   They, not this Court, should have decided the
fact question.
                                                              /
Mr. Justice Daniel J. Shea commenting on the dissent:

         Since writing this opinion a dissent has been prepared and
filed.

         I strongly support the right and the need for dissenting
opinions, but it seems to be that it should be responsive to the
facts and law of the case.

         This case does not concern itself in any form with the sup-

pression of testimony before a grand jury, and therefore, the Wong

case and the Washington case cited, quoted and discussed in the dis-

sent are simply not applicable.   And, neither does the invocation

of the Fifth Amendment, as in the Washington case, have anything to
do with the facts or law of this case, except perhaps as a procedural

and historical aside.

         It should be noted that the dissenter wrote the original

majority opinion in this case dismissing 16 of the 18 counts, but
ordering a trial on counts 9 and 10.   In the original opinion, the

facts were not applied to the law of perjury, and that is the reason
for the original mistake on counts 9 and 10.   Specifically, the test

of materiality was never applied to the facts of count 9.   And,

neither in count 9 was the requirement of corroboration applied to

the facts, i.e., the corroborating evidence must be admissible evi-

dence and not hearsay as in this case, and the corroborating evidence
must be independent of the direct evidence.    In count 10 the direct

evidence requirement for proof of perjury was not applied to the

facts of count 10.
         The true test of the validity of this dissent, can, I believe,

be summarized as follows:    If the dissent would reverse the district

court, then on what counts and for what legal reasons?   On these
matters the dissent is silent.
