binding on his conscience." And a mere formal variation from the form of a statutory oath does not affect its obligatory character.1 § 1252. Where a party offers himself to prove his books, and wilfully testifies untruly as to matters material to the No matter on voir dire. if oath was issue, it is perjury, although he was sworn generally, but without objection, to tell the whole truth, instead of being sworn to make true answers. And a party is generally liable for perjury in his own case.3 Two defendants IV. PARTY TO BE CHARGED. § 1253. The crime being distinct, several persons cannot be joined. One only can be made defendant. Even supposing two persons to swear jointly to the same false affidavit, it is impossible to suppose that they did so at the same moment of time, so as to make the offence exactly joint.* cannot be joined. Perjury though § 1254. If an incompetent witness is permitted to witness is testify, and testifies falsely, it is perjury. This holds even where a party himself is a witness." incompetent. taken in writing and which could not be evidence. State v. Trask, 42 Vt. 152, 1869. See infra, 1294, and State v. Helle, 2 Hill, (S. C.) 290, 1834. Infra, & 1270. To an affidavit it is not necesssary that there should be a signature. Com. v. Carel, 105 Mass. 582, 1870; Turpin v. Road Co., 48 Ind. 46, 1874. Infra, 1310. hands. Jackson v. State, 1 Carter, but which by law ought to have been (Ind.) 184, 1848. When a statute directs a form of swearing, it must be substantially followed. Maher v. State, 3 Minn. 444, 1859; State v. Davis, 69 N. C. 383, 1873; Ashburn v. State, 15 Ga. 246, 1854. But mere verbal deviations are immaterial. Com. v. Smith, 11 Allen, 243, 1865; State v. Gates, 17 N. H. 373, 1845; State v. Dayton, 3 Zab. 49, 1850; People v. Cook, 8 N. Y. 67, 1853. "Kissing the book" may be omitted. R. v. Haly, 1 Cr. & D. 199. And kissing the wrong book does not That vitiate. R. v. Haly, ut sup. mere technical variations do not affect the validity of the oath even when prescribed by statute, see State v. Dayton, ut sup.; Ashburn v. State, 15 Ga. 246, 1854; State v. Owen, 72 N. C. 605, 1875; Edwards v. State, 49 Ala. 334, 1873; Faith v. State, 32 Tex. 373, 1869. A prosecution for perjury cannot be based on testimony received orally, 13 Inst. 165; State v. Dayton, 3 Zab. 49, 1850; State v. Owen, 72 N. C. 605, 1875. 2 State v. Keene, 26 Me. 33, 1846. 3 Infra, & 1271. See R. v. Phillips, 2 Stra. 921; Whart. Cr. Pl. & Pr. ? 302. 5 Infra, 2 1271, 1280, and cases there cited; Chamberlain v. People, 23 N. Y. 85, 1861; Montgomery v. State, 10 Ohio, 220, 1840. 6 Ibid.; Resp. v. Newell, 3 Yeates, 407, 1802. See infra, ? 1271; supra, 2185, 1252. though he § 1255. Nor is it requisite that the defendant should And have been served with a subpoena, or have been com- be a volunpelled to testify. The mere fact of his testifying is enough.1 V. BEFORE A COMPETENT OFFICER. teer. others or must have § 1256. Breach of vows, when attended by injury to to society, by the canon law is subjected to specific eccle- The false siastical penalties. "Quicunque sciens pejereraverit "' swearing (whether in a private vow or public testimony, suppos- been in proceedings ing that God be appealed to as a sanction of the truth of authorized vow or statement), "quadraginta dies in pane et aqua et by law. septem sequentes annos poeniteat, et nunquam sit sine poenitentia, et nunquam in testimonium recipiatur: communionem tamen post haec percipiat." (C. 18. c. vi. qu. 1.) But the Roman common law, followed in this respect by the English, treats perjury as an offence only when it can be used to disturb in judicial processes the civil relations of men. So far as it is solely an offence against God, solely by God is it to be avenged. "Jurisjurandi contemta religio satis Deum habet ultorem." (L. 2. Cod. de reb. cred.) In the maintenance of this distinction the English common law has been resolute. minister § 1257. It is essential to constitute the offence that, if the oath be non-judicial, it be taken before the proper officer, Officers of or if it be judicial, before the court having jurisdiction of the proceedings. If, in case of a non-judicial oath, it appear to have been taken before a person who had no lawful authority to administer it,3 or, in case of a judicial court ading the oath must be com petent. 'Com. v. Knight, 12 Mass. 274, Gilpin, 439, 1833; State v. Furlong, 1815. 26 Me. 69, 1846; Com. v. Knight, 12 2 Infra, & 1275; 2 Russ. on Cr. (6th Mass. 274, 1815; Com. v. White, 8 Am. ed.) 599; R. v. Senior, L. & C. Pick. 453, 1829; State v. Fassett, 16 409; 9 Cox C. C. 469; R. v. Hughes, Conn. 457, 1844; Arden v. State, 11 D. & B., 188; 7 Cox C. C. 286; R. Ibid. 408, 1836; Jackson v. Hume. Shaw, 10 Ibid. 66; R. v. Bacon, 11 phrey, 1 Johns. 498, 1806; Conner v. Ibid. 540; R. v. Lewis, 12 Ibid. 163; Com., 2 Va. Cas. 30, 1815; Pankey v. R. r. Willis, Ibid. 164; U. S. v. Bailey, People, 1 Scam. 80, 1833; Montgomery 9 Peters, 238, 1835; U. S. v. Barton, 'v. State, 10 Ohio, 220, 1840; Lamden 33 Inst. 165, 166; R. v. Hanks, 3 C. & P. 419; Lambert v. People, 76 N. Y. 220; 6 Abb. New Cas. 181, 1879; Case v. People, N. Y. Ct. Ap. 1879; Morrell v. People, 32 Ill. 499, 1863; State v. Phippen, 62 Iowa, 54, 1883. Infra, 1272. oath, before a court which had no jurisdiction of the cause,' the defendant must be acquitted. The indictment, however, need not show the nature of the authority of the party administering the oath.3 Being sworn by a clerk in presence of the court is being sworn by the court. 4 The fact that the oath was administered must be proved beyond reasonable doubt." Proceed ings need not have been strictly regular. § 1258. Where the court has jurisdiction of the subject matter of inquiry, it is not necessary that the proceedings should be strictly regular. But if from want of some v. State, 5 Humph. 83, 1844; Steinson v. State, 6 Yerg. 531, 1834; State v. Gallimon, 2 Ired. 374, 1842; State v. Alexander, 4 Hawks, 182, 1825; State v. Hayward, 1 N. & McC. 546, 1819; State v. McCroskey, 3 McCord, 308, 1825; State v. Wyatt, 2 Hayw. 56, 1797; State v. Crumb, 68 Mo. 206, 1878; State v. Wymberly, 40 La. An. 460, 1888; Anderson v. State, 24 Tex. App. 705, 1886; U. S. v. Cuddy, 39 Fed. Rep. 696, 1889; Com. v. Kane, 92 Ky. 457, 1892; State v. McCone, 59 Vt. 117, 1887; State v. McCone, (Vt.) 8 E. Rep. 716, 1887; State v. Jenkins, 26 S. C. 121, 1886; State v. Mace, 76 Me. 64, 1884. For other cases, see infra, & 1290. Q. B. 496; 2 Den. C. C. 504; 5 Cox 13 Inst. 166; Yelv. 111; State v. Furlong, 26 Me. 69, 1846; State v. Alexander, 4 Hawks, 182, 1825. Infra, 1272. 2 See 1 Hawk. c. 69, ss. 3, 4; Bac. Abr. PERJURY (A.); R. v. Crossley, 7 T. R. 315; R. v. Dunn, 1 D. & Ry. 10; R. v. Hanks, 3 C. & P. 419. Infra, ? 1272. 3 R. v. Callanan, 6 B. & C. 102; State v. Ludlow, 2 Southard, 772, 1820. Infra, ?? 1288, 1289; State v. Hoffer, 133 Ind. 460, 1892. 5 In Case v. People, 6 Abb. New An indictment averring that "in Cas. 151; 76 N. Y. 220, 1879, the dethe Whitechapel County Court of fendant was charged with perjury, in Middlesex, holden before J. M., judge swearing to an affidavit before a noof the court, an action, then pending tary, and the notary could not rememin the court, came on to be tried; ber that he administered the oath, that the defendant was sworn as a but believed he did so from seeing his witness before J. M., being judge of name on the jurat, and the prisoner the said county court, and having swore he did not take the oath, but sufficient and competent authority to sent the paper signed by him by a administer the said oath; and then messenger to the notary's office, and perjury was assigned; sufficiently the prisoner was corroborated by shows on the face of the indictment others. It was ruled that there was that the court was properly consti- not adequate proof that the oath was tuted, and that the judge had juris- ever administered. diction over the cause in which the perjury was alleged to have been committed. Lavey v. R., (in error) 17 6 State v. Lavalley, 9 Mo. 834, 1846; Smith v. State, (Tex.) 20 S. W. Rep. 707, 1892. Infra, 1273. essential condition (e. g., an issue) no jurisdiction attached, perjury cannot be maintained.1 may be § 1259. Perjury before courts-martial is by statute Perjury made indictable in most jurisdictions; but even where before a statute does not apply, the weight of authority is that martial. it is perjury at common law.2 court And in an eccle § 1260. In a much-contested case in Connecticut, it was held by a majority of the judges, that as Christianity is part of the common law of the land, an ecclesiastical tribunal has Connectithe right to administer an oath, and that false swearing cut before before such a tribunal is perjury.3 The last is certainly siastical a bold position; and when we bear in mind the license with which ecclesiastical trials are conducted, particularly where the church discipline leaves the matter to the adjudication of the In R. v. Hughes, C. C. R., June, 1879, 40 L. T. (N. S.) 685; 14 Cox C. C. 284; 48 L. J. M. C. 151; the point in the text was examined under the following circumstances: court make false swearing before commissioners of bankrupt perjury, it is necessary that there should be a good petitioning creditor's debt to support the fiat. R. v. Ewington, 2 Mood. C. C. 223; Car. & M. 319. In R. v. Carr, 10 Cox C. C. 564, it was held that it should be proved distinctly, on the trial of an indictment for perjury, what the charge was, on A police officer, H., obtained an illegal warrant against S. for assaulting him and obstructing him in the discharge of his duty. H. arrested S. thereon, and took him before the magistrates in petty sessions, who the hearing of which the false eviconvicted and sentenced S. to six dence was given. months' imprisonment with hard labor. S. took no objection to the proceedings, and he called a witness to show he was not guilty. 1 R. v. Ewington, 2 Mood. C. C. 223; Car. & M. 319; R. v. Pearce, 3 B. & S. 531; 9 Cox C. C. 258; State v. Shanks, 66 Mo. 560, 1877. Infra, ? 1272. 2 R. v. Heane, 4 B. & S. 947; 9 Cox C. C. 433; R. v. Tomlinson, L. R. 1 C. C. 49. An indictment was afterward found against H. for perjury committed by him at the hearing of the case at petty sessions, and he was convicted by the jury, subject to the opinion of the court as to the jurisdiction of the justices in petty sessions, because there was no written information nor oath to support the warrant. It was held (Kelly, C. B, dissentiente) that the justices had jurisdiction to hear and determine the case against S., notwithstanding he was brought before Chapman v. Gillet, 2 Conn. 40, them on an illegal warrant, and there 1816. was no written information. But to VOL. II.-9 Wilful and corrupt false swearing, when before a local marine board duly and lawfully appointed and constituted, upon a matter material to an inquiry then being lawfully investigated by them, is perjury. R. v. Tomlinson, L. R. 1 C. C. 49; 12 Jur. (N. S.) 945. 129 congregation as a body, it is questionable how far sound policy would justify a doctrine which would attach to ecclesiastical sentences, first the incidents and then the consequences of a civil judgment. When such a court, however, is established by law, this objection vanishes; and, in any view, the present tendency of the courts to treat the adjudications of ecclesiastical tribunals as authoritative within their sphere makes it important to solemnize and check testimony in such courts by the sanction of an oath. § 1261. Perjury may be assigned on a false oath taken before a grand jury. In England doubts seem to have existed as to whether a grand juror was competent to swear a witness; but it is clear that the clerk of the assizes, or any third person, is admissible for that purpose.3 In most States the practice is for the administer foreman of the grand jury, or one of the members, to ad Grand jury may oath. minister the oath.* § 1262. The officer who administers the oath must have legal power to administer the oath in the particular process." But other- Thus a man cannot be indicted for perjury in swearing authorized before a justice to his attendance in court as a witness, when the clerk only is authorized to administer such wise of un officer. oath.6 § 1263. It is held to be sufficient, primâ facie, that the person by Officer act- whom the oath is administered was an acting magistrate, ing as such prima facie and the evidence of the officer himself may be received to When such a case is presented by the prose competent. prove this. 1 21 Ch. C. L. 322; State v. Fassett, 16 Conn. 457, 1844; Com. v. Parker, 2 Cush. 212, 1848; Thomas v. Com., 2 Rob. (Va.) 795, 1843; Com. v. Pickering, 8 Gratt. 628, 1851; State v. Wakefield, 73 Mo. 549, 1881. Perjury may be predicated on an oath taken before the county attorney who is investigating violations of liquor laws. Ex parte Sprague, (Kans.) 8 Crim. Law Mag. 276, 1886. See State v. Offutt, 4 Blackf. 355, 1837; People v. Young, 31 Cal. 563, 1867; St. Clair v. State, 11 Tex. App. 297, 1881; Mason v. State, 55 Ark. 529, 1892; Foster v. State, 31 Tex. Cr. 409, 1892; Meeks v. State, (Tex.) 24 S. W. Rep. 98, 1893; Izer v. State, 77 Md. 110, 1893; People v. Greenwell, 5 Utah, 112, 1886; Whart. Cr. Pl. & Pr. ? 378 et seq. R. v. Hughes, 1 C. & K. 519. 4 See Whart. Cr. Pl. & Pr. & 358 a; State v. Green, 24 Ark. 591, 1867. 5 R. v. Stone, Dears. 251; R. v. Hanks, 3 C. & P. 419; U. S. v. Curtis, 107 U. S. 671, 1882; State v. Clark, 2 Tyler, 277, 1803; State v. Jackson, 36 Ohio St. 281, 1880; Staight v. State, 39 Ibid. 496, 1883; Lamden v. State, 5 Humph. 83, 1844. State v. Wyatt, 2 Hayw. 56, 1797; U. S. v. Bedgood, 49 Fed. Rep. 54, 1891. But see supra, & 1257. R. v. Roberts, 38 L. T. (N. S.) 690 |