# State v. Sands

> Supreme Court of New Hampshire · August 29, 1983 · 123 N.H. 570

URL: https://www.frixlaw.com/law-library/cases/8049403

## Case

- **Full name:** The State of New Hampshire v. David S. Sands The State of New Hampshire v. Thomas A. Tsoumas
- **Court:** Supreme Court of New Hampshire
- **Decided:** August 29, 1983
- **Citations:** 123 N.H. 570; 467 A.2d 202; 37 A.L.R. 4th 904; 1983 N.H. LEXIS 362
- **Precedential status:** Published
- **Opinion:** Dissent by Batchelder
- **Judges:** Batchelder, Bois, Brock, Douglas, Johnson, King, Lampron, Mullavey, Rsa, Supp, Supreme
- **Cited by:** 66 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8049403

## How later opinions describe it (automated extraction)

- concluding that materiality involves complex relationship between alleged false statements and underlying proceeding and is therefore question of law
- noting that perjury indictments quoted the defendant’s allegedly false statements

## Opinion text

Batchelder, J.,
dissenting: This appeal is a case of first impression, challenging the perjury statute, RSA chapter 641, insofar as it provides that “[w]hether a statement is material is a question of law to be determined by the court.” RSA 641:1, II. I believe that by requiring an essential element of the crime, “materiality”, to be determined by the court, the statute violates the defendants’ constitutional right to have the elements of the crime necessary to support a conviction determined by a jury. See State v. Goodwin, 118 N.H. 862, 869 , 395 A.2d 1234, 1238 (1978); State v. LeClair, 118 N.H. 214, 221 , 385 A.2d 831, 835 (1978).
Although only a minority of the jurisdictions hold that the issue of materiality is for a jury to determine, see, e.g., Commonwealth v. McDuffee, 379 Mass. 353 , 398 N.E.2d 463 (1979); People v. Clemente, 285 App. Div. 258, 262 , 136 N.Y.S.2d 202, 206 (1954), aff'd, 309 N.Y. 890 , 131 N.E.2d 294 (1955), in my opinion, the minority’s approach is more consistent with our constitutional right to trial by jury. See N.H. Const. pt. I, art. 15; State v. Goodwin, 118 N.H. at 869, 395 A.2d at 1238 ; U.S. Const. amend. VI.
The New Mexico Court of Appeals, in commenting on the New York perjury statute, points to a distinction in perjury statutes generally which bears upon this case.
“New York provides for two degrees of perjury. If the falsity is material the defendant may be found guilty of first degree perjury, a felony. If the falsity is not material the defendant may be found guilty of second degree perjury, a misdemeanor. Under these circumstances it is clear that materiality is a jury question since the determination of that issue determines the crime and the punishment.”
State v. Gallegos, 644 P.2d 545, 546 (N.M. Ct. App. 1982). The presence or absence of the element of “materiality” in the New Hampshire statute marks the distinction between the class B felony of perjury and the misdemeanor of false swearing.
Because I believe the constitutional safeguard for defendants to have their cases heard by juries is of overriding importance, compared to the provisions in RSA chapter 641 relegating the determi *619 nation of materiality to the court, I respectfully dissent, believing that this aspect of the statute is unconstitutional. I would order a new trial and not reach the other issues raised in the appeal.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8049403. Public record. Not legal advice.