Before SWAN, AUGUSTUS N. HAND and CHASE, Circuit Judges.
On December 15, 1948, the appellant testified under oath as a witness before a grand jury of the United States sitting in the Southern District of New York that he had never, nor had his wife in his presence, turned over any documents of the State Department or of any other Government organization, or copies of such documents, to Whittaker Chambers or to any other unauthorized person. He also testified before the same grand jury on the same day that he thought he could definitely say that he did not see Mr. Chambers after January 1, 1937. This grand jury returned an indictment charging in count one that he committed the crime of perjury*fn1 when he testified as firstly above stated and in count two that he did when he testified as secondly above set forth. He was duly tried by jury twice, the jury at the first trial having failed to agree upon a verdict. At the second trial he was convicted on both counts and has appealed from the judgment and sentence thereon.
He relies for reversal upon the alleged insufficiency of the evidence as to both counts to comply with the law applicable in perjury cases to the quantum of proof; upon error in construing the scope of the second count too broadly; upon other trial errors, including faulty instructions in the charge; and upon the failure to grant his motion to dismiss the indictment and to arrest the judgment.
It is well established that the un-uncorroborated testimony under oath of one witness is not enough as a matter of law to prove the crime of perjury. Hammer v. United States, 271 U.S. 620, 46 S. Ct. 603, 70 L. Ed. 1118. There must be either two witnesses who testify that the accused violated his oath, or one witness to that and corroboration by other evidence which is believed by the jury and is found by it to substantiate the testimony of the one witness. Weiler v. United States, 323 U.S. 606, 65 S. Ct. 548, 89 L. Ed. 495.This corroboration of the testimony of a single witness should be such that it supplies independent proof of facts inconsistent with the innocence of the accused. United States v. Isaacson, 2 Cir., 59 F.2d 966; United States v. Buckner, 2 Cir., 118 F.2d 468, 469.
To determine whether the government's proof in this case complies with this standard, some of the events leading up to the time when the charged perjury was alleged to have been committed should be reviewed. A committee of Congress known as the Committee on Un-American Activities of the House of Representatives had, before August 3, 1948, been conducting investigations as authorized of matters which included subversive activities of governmental employees and others. On the above date Whittaker Chambers appeared before that Committee in Washington in response to a subpoena and testified that he had formerly been a member of the Communist Party in the United States and had been associated with a Communist group or "apparatus" in Washington from 1934 to 1938. The object of this group, he said, was to infiltrate its members into responsible government positions; an ultimate goal was espionage. He further testified that the appellant, Alger Hiss, had been an active member of this organization and of the Communist Party. Mr. Hiss, who had been during that time an assistant to Mr. Francis B. Sayre, Assistant Secretary of State, was, when Mr. Chambers so testified before the Committee, president of the Carnegie Endowment for International Peace and was in New York City. He quickly learned from the press that he had been thus accused and lost no time either in issuing a statement in denial or in informing the Committee that he desired to appear before it and to be given an opportunity to make a denial there. His request was granted and, on August 5, 1948, he appeared before the Committee in Washington and not only denied categorically that he was, or ever had been, a Communist or a Communist sympathizer, but asserted that he didn't know anyone by the name of Whittaker Chambers. When shown a picture of Whittaker Chambers he could not recognize it as that of anyone he had ever seen and demanded a confrontation.
Mr. Chambers was then recalled, thoroughly examined regarding his acquaintance with the appellant, and gave to the Committee information in considerable detail concerning appellant's places of residence and their arrangement and furnishings, as well as about his habits and family. Mr. Hiss appeared again before the Committee on August 16 but without identifying Chambers as anyone he had known. On August 17, however, Mr. Chambers and Mr. Hiss met for the first time in the course of the investigation in the rpesence of members of the Committee. Mr. Hiss was told who Mr. Chambers was and was asked if he had ever known him before. The appellant replied by requesting that Mr. Chambers be asked to say something. Mr. Chambers was then asked to give his name and business and he gave his name. Mr. Hiss then walked toward him and asked him to open his mouth wider. He again gave his name and added, "I am senior editor of Time magazine." Mr. Hiss then said, "May I ask whether his voice, when he testified before, was comparable to this?" When told by Mr. McDowell of the Committee, "I would say it is about the same now as we have heard," Mr. Hiss asked to have Mr. Chambers talk "a little more." Mr. Chambers was then asked to read something, but before he did Mr. Hiss said, "I think he is George Crosley, but I would like to hear him talk a little longer." Appellant then said to Mr. Chambers, "Are you George Crosley?" to which Mr. Chambers replied, "Not to my knowledge. You are Alger Hiss, I believe." Mr. Hiss rejoined, "I certainly am," and Mr. Chambers said, "That was my recollection." After this Mr. Nixon of the Committee remarked, "Since some repartee goes on between these two people, I think Mr. Chambers should be sworn." That was done and Mr. Chambers read from a magazine. Mr. Hiss interrupted to say, "The voice sounds a little less resonant than the voice that I recall of the man I knew as George Crosley. The teeth look to me as though they have been improved upon or that there has been considerable dental work done since I knew George Crosley, which was some years ago." Upon inquiry Mr. Chambers said that he had had extensive dental work done. Mr. Hiss wanted to know the name of the dentist and Mr. Chambers supplied that with the address. Then Mr. Hiss said, "That testimony of Mr. Chambers, if it can be believed, would tend to substantiate my feeling that he represented himself to me in 1934 or 1935 or thereabout as George Crosley, a free lance writer of articles for magazines. I would like to find out from Dr. Hitchcock [the dentist] if what he has just said is true, because I am relying partly, one of my main recollections of Crosley was the poor condition of his teeth." Mr. Chambers then said in reply to a question that his teenth "were in very bad shape" in 1934.
Mr. Nixon of the Committee pressed its inquiry by asking appellant if he felt he would have to have the dentist tell what he did to the teeth before he "could tell anything about this man," to which Mr. Hiss replied, "I would like a few more questions asked. I didn't intend to say anything about this, because I feel very strongly that he is Crosley, but he looks very different in girth and in other appearances - hair, forehead, and so on, particularly the jowls."
The appellant, being questioned further, was unable to give the name of Crosley's wife although he did remember that she had stayed in appellant's house "two or three or four consecutive nights" with her husband and infant child while they awaited a van with their furniture, shortly after they had sub-let the appellant's apartment in Washington. He said that he had made this sub-lease of his apartment for the summer to Crosley at cost after having leased a house on P Street in the spring of 1935, but that Crosley had paid him no rent in cash, although he had "once paid in kind,"*fn2 and had borrowed some thirty-five or forty dollars from him in smaller amounts at different times. Concerning the events leading up to this rental, Mr. Hiss recalled that he first met Crosley when the latter came into his office in the Senate Office Building, where appellant was serving as legal assistant to the Senate Munitions Committee, to inquire about the investigation, probably in the fall of 1934. He saw him on business, he thought, ten or eleven times during the next five or six months. In the spring of 1935, Crosley told the appellant that "he was planning to spend the summer months in Washington to complete his search and investigation of the series of articles which he had been engaged upon at the time" appellant first met him. Mr. Hiss then orally sub-let his apartment to Crosley, and learning that Crosley would like to rent a car, told him, "You came to just the right place. I would be very glad to throw a car in because I have been trying to get rid of an old car which we have kept solely for sentimental reasons which we couldn't get anything on for trade-in or sale." Appellant said that car was "one of the first model A Fords." Appellant also testified that Crosley had the use of his apartment and car under this arrangement during the summer of 1935 and that he saw Crosley "several times in the fall of 1935," as he recalled it. He said, "I think he came to my house once or twice after that because of this establishment of a personal relationship. I remember on one occasion he came and brought me a rug which was part payment." Appellant remembered that once when he drove to New York from Washington he took Crosley with him.
The attorney for the Committee then said to the appellant, "Mr. Hiss, you say that person you knew as George Crosley, the one feature which you must have to check on to identify him is the dentures." To this the appellant said, "May I answer that my own way rather than just 'Yes' or 'No'?" And what then followed, up to the time the appellant identified Chambers as the man he had known as Crosley, is now quoted from the transcript:
"Mr. Stripling: Well, now, I would like to preface whatever you are going to say by what I say first.
"I certainly gathered the impression when Mr. Chambers walked into this room and you walked over and examined him and asked him to open his mouth, that you were basing your identification purely on what his upper teeth might have looked like.
"Now, here is a person that you knew for several months at least. You knew him so well that he was a guest in your home.
"Mr. Stripling: I would like to complete my statement - that he was a guest in your home, that you gave him an old Ford automobile, and permitted him to use, or you leased him your apartment and in this, a very important confrontation, the only thing that you have to check on is this denture; is that correct?
"There is nothing else about this man's feaures which you could definitely say, 'This is the man I knew as George Crosley,' that you have to rely entirely on this denture; is that your position?
"Mr. Hiss: Is your preface through? My answer to the question you have asked is this:
"From the time on Wednesday, August 4, 1948, when I was able to get hold of newspapers containing photographs of one Whittaker Chambers, I was struck by a certain familiarity in features. When I testified on August 5 and was shown a photograph by you, Mr. Stripling, there was again some familiarity features. I could not be sure that I had never seen the person whose photographs you showed me.I said I would want to see the person.
"The photographs are rather good photostats of Whittaker Chambers as I see Whittaker Chambers today. I am not given on important occasions to snap judgments or simple, easy statements. I am confident that George Crosley had notably bad teeth. I would not call George Crosley a guest in my house. I have explained the circumstances. If you choose to call him a guest, that is your affair.
"Mr. Stripling: I am willing to strike the word 'guest.' He was in your house.
"Mr. Hiss: I saw him at the time I was seeing hundreds of people. Since then I have seen thousands of people. He meant nothing to me except as one I saw under the circumstances I have described.
"My recollection of George Crosley, if this man had said he was George Crosley, I would have no difficulty in identification. He denied it right here.
"I would like and asked earlier in this hearing if I could ask some further questions to help in ...