II. SECRETING GOODS. § 1239. By statutes in force in many States, the secreting of goods with intent to defraud creditors is an indictable. offence. To constitute this offence it is necessary that dictable by there should be Secreting goods is made in statute. 1st. An actual fraudulent secreting, assigning, or conveying of goods, etc., or a fraudulent reception of the same. 2d. An intent to prevent such property from being made liable for the payment of debts, or, in case of reception, a guilty knowledge of such intent.1 Secreting or assigning must be actual. § 1240. 1st. There must be an actual secreting or assigning of the goods. It is not enough that the debtor, to his creditor's face, refuses to surrender property which the creditor claims. Thus it was held that a refusal of a defendant to deliver up a watch to the sheriff's deputy was not within the statutes.2 The object of the law is not to make a man indictable who resists process, since for this another procedure exists, but to prevent the secret and covinous disposal of property in such a way as to elude the pursuit of the law and baffle an execution. A pointed illustration of this is the case of a trader, who, after obtaining credit by stocking his store with goods, either hides such goods until such time as he may be able, without suspicion or disturbance, to convert their proceeds to his own use, or consigns them to auction under such covers as may enable him to turn them into cash without his creditor's knowledge. It would seem, from analogy to the statutes of Elizabeth, that the offence would continue to be indictable, even if a consideration were received, if the intent to defraud were proved. Did he do so in defraud of the particular creditor who had obtained the judgment? (3) Does the fact of his having done so, coupled with the general evidence in the case, satisfy the jury that his intention was to defraud any and every person to whom he might be indebted ?" See London Law Times, May 27, 1882, p. 59. 1 See State v. Marsh, 36 N. H. 196, 1858; Com. v. Damon, 105 Mass. 580, 1870. Under a recent English statute, see ruling in R. v. Rowlands, L. R. 8 Q. B. D. 530; 44 L. T. (N. S.) 286; where it was held that in such cases the questions for the jury were: "(1) Did the defendant, either subsequent to the judgment being obtained against him, or within two months before the 2 People v. Morrison, 13 Wend. date of any unsatisfied judgment, 399, 1835. See People v. Underwood, remove or conceal his goods? (2) infra. Intent or § 1241. 2d. An intent must be shown to prevent the property from being made liable for the payment of debts; or, in case of receivers, a guilty knowledge of such intent.1 It scienter is not enough that the debtor's object was to give a pref- must be erence to a particular creditor.2 shown. When "all creditors" are protected by the act, as "creditors," it seems, may be classed even those whose debts are not yet due.3 Under such a statute it is unnecessary that the prosecutors should be judgment creditors.* The fact of indebtedness of some kind, however, on the part of the defendant, must be distinctly averred.5 The federal statute, making it indictable to obtain goods by false pretences three months prior to bankruptcy, has been held unconstitutional, as not limited to acts in contemplation of bankruptcy." 1 See Com. v. Brown, 15 Gray, 189, 1860; Com. v. Strangford, 112 Mass. 289, 1873. Selling property with intent to defraud the lien holder is in some States made indictable. Nixon v. State, 55 Ala. 120, 1876; Robberson r. State, 3 Tex. App. 502, 1878. mitted, the statute will be of very little public importance. This is not like the case of a creditor seeking a civil remedy against a fraudulent debtor. There the creditor must complete his title by judgment and execution before he can control the debtor 2 Com. v. Hickey, 2 Parsons, 317, in the disposition of his property; he must have a certain claim upon the 1843. 'Johnes v. Potter, 5 S. & R. 519, goods before he can inquire into any 1820. People v. Underwood, 16 Wend. 546, 1837, citing Wiggins v. Armstrong, 2 John. Ch. 144, 1816. alleged fraud on the part of the debtor. But this is a public prosecution, in which the creditor has no special interest. The legislature has relieved Thus, in New York, Bronson, J., the honest debtor from imprisonment, said: and subjected the fraudulent one to "The language of the act plainly punishment, as for a criminal offence. extends to all creditors, and I can per- The crime consists in assigning or ceive no sufficient reason for restrict- otherwise disposing of his property, ing its construction to such creditors with intent to defraud a creditor, or as have obtained judgments for their to prevent it from being made liable demands. The fraudulent removal, for the payment of his debts. The assignment, or conveyance of property by a debtor, which the legislature intended to punish criminally, usually takes place in anticipation of a judgment, and for the very purpose of defeating the creditor of the fruits of his recovery. If there must first be a judgment before the crime can be com public offence is complete, although no creditor may be in a condition to question the validity of the transfer in the form of a civil remedy." Ibid. See, for forms, Whart. Prec. 507 et seq. 5 State v. Robinson, 9 Foster, 274, 1854. U. S. v. Fox, 95 U. S. 670, 1877. PART III. OFFENCES AGAINST SOCIETY. I. WILFUL. CHAPTER XX. PERJURY. Offence must be wilful, 1245. II. FALSE AND CORRUPT. "Falsely" is knowingly affirming without probable cause, 1246. Probable cause is to be estimated from defendant's standpoint, 1247. Admissible to prove mistake induced by erroneous representations, 1248. And so when advised by counsel, 1249. General evil intent may constitute corruption, & 1250. III. OATH. Form of oath is immaterial, if legal, ? 1251. No matter if oath was on voir dire, & 1252. IV. PARTY TO BE CHARGED. Two defendants cannot be joined, 1253. Perjury though witness is incompetent, 1254. And though he be a volunteer, ? 1255. V. BEFORE A COMPETENT OFFICER. The false swearing must have been in proceedings authorized by law, 1256. Officer or court administering the oath must have been competent, 1257. Proceedings need not have been strictly regular, 1258. Perjury may be before courtmartial, 1259. Doubts as to ecclesiastical courts, 1260. Grand jury may administer oath, 1261. But otherwise unauthorized officer, 1262. Officer acting as such primâ facie competent, 1263. Perjury not extra-territorially punishable, 1264. State magistrate under Act of Congress may administer oath, & 1265. And so justice of the peace and of arbitrators under rule of arbitration, 1266. VI. IN PROCEEDING AUTHORIZED BY LAW. False swearing must be in proceeding authorized by law, ? 1267. Juror indictable for false swearing on voir dire, & 1268. Voluntary false affidavits are not perjury, 1269. But otherwise as to statutory affidavit, 1270. Party may be guilty of perjury in his own case, ? 1271. No perjury in void suit, 8 1272. Nor on oath as to future offi- tional facts, 1274. State court has ordinarily no jurisdiction of false swearing in federal courts, ? 1275. VII. IN MATTER MATERIAL. False swearing must have been in matter material, ? 1276. But circumstantiality of detail may be material, ? 1277. And so testimony as to credit of witness, ? 1278. And so witness's answers on his own cross-examination, 8 1279. Inadmissibility no test of im materiality, 1280. Admission not conclusive as to materiality, 1281. Prima facie materiality is sufficient, & 1282. Irrelevant opinions not sub jects of perjury, 1283. Materiality is for court, & 1284. VIII. INDICTMENT. 1. "Wilful and Corrupt." "Wilful" and 66 But curable irregularities are not fatal, 1294. Otherwise as to essential conditions, ? 1295. By present practice only such averments need be introduced, 1296. 4. Setting out of False Mutter. Verbal exactness as to sworn matter is not essential, & 1297. "Substance" and "effect" are enough, 1298. Only alleged falsities need be pleaded, 1299. 5. Negativing of False Matter. Negation of false matter should be express, ? 1300. Several assignments may be incorporated in one count, 1301. "Belief" must be specifically negatived, 1302. Ambiguities may be cleared by innuendoes, ?1303. 6. Materiality. Materiality must appear on record, 1304. IX. EVIDENCE. "Corrupt " must be charged, ? 1286. 2. Sworn before Competent Juris diction. Oath must be properly set forth, 1287. Detailed authority of record court need not be given, 1288. Otherwise with special statu1289. tory officer, Jurisdiction must be averred, ? 1290. And so as to time and place, 1291. 3. In a Judicial Proceeding. Judicial proceeding must be averred, 1292. Proceedings must appear regular, & 1293. Whole of testimony is to be considered, 1306. Substance of assignment must be proved, 1307. One witness enough to prove testimony, 1308. Answers in chancery and depositions to be proved by jurat, 1309. Parol evidence admissible notwithstanding testimony was reduced to writing, 1310. Lost instrument may be proved by parol, 1311. Jurat of officer administering oath may be proof of oath, 1312. Substantial variance as to evidence is fatal, 1312. Definition. Attempts at subornation are indictable, 1332. And so of dissuading witness POINTS FOR DEFENCE IMPROPERLY § 1244. PERJURY, as the offence, modified by statute, is now generally defined, is the corrupt assertion of a falsehood, under oath, or affirmation, and by legal authority, for the purpose of influencing the course of law. Or, to give a definition. drawn from the older common law authorities, it is the wilful assertion as to a matter of fact, opinion, belief, or knowledge, made by a witness in a judicial proceeding as part of his evidence, either upon oath or in any form allowed by law to be substituted for an oath, whether such evidence is given in open court, or in an affidavit, or otherwise, such assertion being known to such witness to be false, and being intended by him to mislead the court, jury, or person holding the proceeding.1 Perjury is at common law a mis This definition is substantially Ab. tit. "PERJURY;" Burn's Justice, that given by the English Commis- tit. "PERJURY;" Steph. Dig. Crim. sioners in their draft report made in Law, art. 135; 2 Russ. on Cr. (5th Am. 1879, and to sustain it may be cited: ed.) 596; Pickering's Case, 8 Gratt. 628, 1 Hawk. c. 69, s. 1; 3 Inst. 164; Bac. 1857; State v. Brown, 79 N. C. 642, |