demeanor. And false swearing, when not technically perjury, may nevertheless be at common law indictable as an independent misdemeanor, when the oath is taken to affect a juridical right.2

I. WILFUL.

Offence

wilful.

§ 1245. The offence consists in swearing falsely and corruptly, without probable cause of belief; not in swearing rashly or inconsiderately, accordingly to belief. The false oath, must be if taken from inadvertence or mistake, cannot amount to voluntary and corrupt perjury. Therefore, where perjury is assigned on an answer in equity, or on an affidavit, etc., the part on which the perjury is assigned may be shown to be inadvertent by another part, or even by a subsequent answer.5

That the oath is wilful and corrupt must not only be charged in the indictment, but be supported on trial. An oath is wilful when taken with deliberation, and not through surprise or confusion, or a bona fide mistake as to the facts, in which latter cases perjury does not lie.7

1878; State v. Dodd, 3 Murph. 226, 1819; State v. Ammon, 3 Murph. 123, 1819; Martin v. Miller, 4 Mo. 47, 1835; Pankey v. People, 1 Scam. 80, 1833; De Bernie v. State, 19 Ala. 23, 1851; Jackson v. State, 1 Carter, (Ind.) 184, 1848; McGregor v. State, Ibid. 232, 1848; People v. Collier, 1 Mich. 137, 1848; Nelson v. State, 32 Ark. 193, 1877.

13 Inst. 163-5; R. v. Johnson, 2 Show. 1; Steph. Crim. Law, note vii. In R. v. Hodgkiss, L. R. 1 C. C. 212, Kelly, C. B., held that false statutory affidavits made as a prerequisite to obtaining a legal status, as distinguished from false oaths in court, are not "perjury," and the court consequently struck out from the indictment the averments of perjury, and sentenced for a misdemeanor at common law. But in this country such false statutory oaths are commonly treated as perjury. Infra, 1270. 1 R. v. Chapman, 1 Den. C. C. 432; T. & M. 90; R. v. Hodgkiss, L. R. 1

6

Supra, 89, and cases there cited. R v. Stephens, 5 B. & C. 246; U. S. v. Moore, 2 Low. 232, 1873; Thomas v. Com., 2 Rob. (Va.) 795, 1843; Com. v. Cook, 1 Ibid. 789, 1842; State v. Garland, 3 Dev. 114, 1831; Green v. State, 41 Ala. 419, 1868; Miller v. State, 15 Fla. 577, 1876; Cothran v. State, 39 Miss. 541, 1860. See, as to indictment, infra, ? 1286.

II. FALSE AND CORRUPT.

§ 1246. It is perjury where one swears wilfully and corruptly to a matter which he, according to his own lights, has no "Falsely" probable cause for believing, since a man is guilty of perjury if he knowingly and wilfully swears to a particular fact, without knowing at the time that the assertion is true, supposing that his purpose is corrupt.2 Hence it is held a good assignment of perjury that the defendant swore that he "thought" or "believed" a certain fact, whereas in truth and fact he "thought" or "believed" the contrary, and had no probable grounds for what he swore. Nor is it a defence that the fact to be inferred is true, if the defendant

swear corruptly to false circumstances as a basis for inference.1 As, for instance, if a man swear that J. N. revoked his will in his presence, though he really had revoked it, it is perjury if it were unknown to the witness that he had done so. And it is perjury for a person knowingly and corruptly to swear that he is ignorant of a particular fact of which he is cognizant, or cognizant of a fact of which he is ignorant.*

Probable

cause is to

be esti

mated

from de

fendant's

point.

§ 1247. It has just been seen that falsity consists in knowingly affirming a condition without probable cause. But what is probable cause? Here we must again accept a position so often vindicated in these pages, that probable cause must be estimated, not from the jury's standpoint, nor from the judge's, but from the defendant's. On the one standhand, the fact sworn to may have been true, but if the defendant swore to it wilfully and corruptly, not knowing it to be true, or not having probable cause, according to his own lights, for believing it to be true, he is guilty, as stated in the last section, of perjury. On the other hand, if he swore honestly to a fact or belief, with probable cause, according to his own lights, to the best of his belief, he is not guilty of perjury, though his oath was really untrue.6

§ 1248. Hence it is admissible to prove reception of such infor

liams, 6 Pa. 170, 178, 1847. There is it was held that the prisoner, having no fair inference that the accused intended to swear unqualifiedly as to the portion preceding the semicolon, and otherwise as to the remainder." See abstract in 19 Alb. L. J. 200; and see infra, 1247, 1283.

wilfully sworn to a thing he did not know to be true, although it was true, was guilty of perjury. People v. McKinney, 3 Parker C. R. 510, 1857. Hetley, 97.

3 Wilson v. Nations, 5 Yerg. 211, 1833. See U. S. v. Atkins, 1 Sprague, 558, 1858.

* State v. Gates, 17 N. H. 373, 1845; State v. Knox, Phil. L. (N. C.) 312, 1867.

5 See Com. v. Cook, 1 Rob. (Va.) 789, 1843; Jesse v. State, 20 Ga. 156, 1856.

1 1 Hawk. c. 69, s. 6; 3 Inst. 166; Palmer, 294. Infra, 1302. In an action on a contract before a justice of the peace, the making of the contract was in issue. A witness testified that he went to a field with the parties to the contract, no other persons than the parties and himself being present, and that he heard the contract agreed 6 R. v. De Beauvoir, 7 C. & P. 17; to by the parties. In point of fact he R. v. Moreau, 11 Q. B. 1028; Com. v. did not go to the field, was not present Brady, 5 Gray, 78, 1855; Smith v. when the contract was made, and had Myers, 41 Md. 425, 1874; Flemister no knowledge of the making. The v. State, 48 Ga. 170, 1873; Nathans v. contract was made, nevertheless; but Hope, (N. Y.) 2 E. Rep. 655, 1885.

Admissible to

prove a

fact in

represen

tations of others.

mation by the defendant as gave him probable ground for his oath. A witness stating evidence truly to the writer mistake of of an affidavit, and swearing to it when drawn up, is not duced by guilty of perjury if the statements are written erroneously erroneous by the amanuensis. Upon an indictment against the defendant for a misdemeanor in falsely swearing that he bonâ fide had such an estate in law or equity of the annual value of £300 above reprises, as qualified him to be a member of parliament for a borough, a surveyor stated that the fair annual value of the property was about £200 a year, but another witness stated that it was badly let, and that he believed it was worth more than £300 a year, and that he told the defendant so, and that he did not think that the defendant had any reason to believe that the qualification in point of value was not sufficient. It was held that the jury must be satisfied beyond all doubt that the property was not of the value of £300 a year, and that at the time the defendant made the statement he knew that it was not of that value.2

And so when advised by counsel.

§ 1249. An honest oath taken under advice of counsel, therefore, is not perjury. Thus a bankrupt who submits the facts in regard to his property fairly to the advice of his counsel, and acting under the advice thus given withholds certain items from his schedule, is not guilty of perjury; the fraudulent intent being wanting. Nor is it perjury when a party swears erroneously to a written statement which his counsel tells him is substantially correct.5

General

may con

§ 1250. It has been already seen that where there is a general intent to do mischief, and a specific overt act follows in evil intent causal connection with such general intent, then the stitute cor- general intent applies to the specific act, so as to comruption. plete the offence. Hence it is perjury if a witness, from general recklessness and a depraved determination to hurt, fall the consequences where they may, swears knowingly to a false

1 Jesse v. State, 20 Ga. 156, 1856. 2 R. v. De Beauvoir, 7 C. & P. 17Lord Denman, C. J.

3 U. S. v. Stanley, 6 McLean, 409, 1853; Com. v. Clark, 157 Pa. 257, 1893; State v. McKinney, 42 Iowa, 205, 1876. But otherwise when no question of law is involved. Barnett v. State, 89 Ala. 165, 1890. As to

advice of counsel in other matters, see supra, 85 b; Jesse v. State, 20 Ga. 169, 1856; Hood v. State, 44 Ala. 81, 1870.

U. S. v. Conner, 3 McLean, 573, 1845. See U. S. v. Dickey, 1 Morris, 412, 1845.

5 U. S. v. Stanley, ut sup.
See supra, 22 101 et seq.

hood. Even a drunkard, swearing falsely, may be convicted of perjury, if his intent in rendering his testimony were evil, though his conception of what he was doing was not exact; and in fact if we require proof of the exact perception of the falsification to convict of perjury, there would be few convictions of perjury, since there are few cases of perjury in which such an exact conception could be proved. But if there be no evil intent, general or special, perjury fails. Thus it is not perjury to swear honestly to testimony which the witness believes to be true, though a little diligence would have enabled him to have discovered its falsity. Where, however, he dishonestly refuses to make inquiry, and purposely shuts himself in to impressions which he has good reason to believe further investigations would dispel, then it is perjury. The corruptness, when proved, completes the offence; the absence of corruptness negatives it.2

III. OATH.

Form of

material if

legal.

§ 1251. While the oath must be solemnly administered, and by an officer duly authorized,3 it is immaterial in what form it is given, if the party, at the time, professes such form oath is imto be binding on his conscience. When a witness comes to be sworn, it is to be assumed that he has settled with himself in what way he will be sworn, and he should make it known to the court; and should he be sworn with uplifted hands, or by any other unusual mode, though not conscientiously opposed to swearing on the gospel, and depose falsely, he subjects himself to a prosecution for perjury. "The fact that a person takes an oath in any particular form is a binding admission that he regards it as

1

People v. Willey, 2 Parker C. R. 19, 1823. See, for other cases, supra, 853.

1 U. S. v. Shellmire, 1 Bald. 370, 1831; U. S. v. Atkins, 1 Sprague, 558, 1858; U. S. v. Moore, 2 Low. 232, 1873; Com. v. Brady, 5 Gray, 78, 1855; Cothran v. State, 39 Miss. 541, 1860.

3 Van Dusen v. People, 78 Ill. 645, 1875; Biggerstaff v. Com., 11 Bush, 169, 1874. Infra, ?? 1263, 1315.

New York Penal Code of 1882, it is made no defence that the oath was administered irregularly.

5 State v. Wisenhurst, 2 Hawks, 458, 1823. As to oath, see Whart. Crim. Ev. ? 353. As to oaths administered by commissioners from other States, see Com. v. Smith, 11 Allen, 243, 1865. Infra, & 1287.

6

Steph. Dig. Crim. Law, art. 135, citing Ides v. Hoare, 2 B. & B. 232. "Corporal oath" and "solemn oath” 1287, 1305. See Whart. are equivalent, and either is sustained 353 et seq. By 97 of by proof of swearing with uplifted