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cution,' it may be rebutted by proof on part of the defendant that the officer, was not competent to act.2 Trials for perjury, in this

State v. Hascall, 6 N. H. 352, 1833;
Woodson v. State, 24 Tex. App. 153,
1887; Dowdy v. Com., (Ky.) 17 S. W.
Rep. 187, 1891. See infra, 1315;
Whart. Crim. Ev. 164, 835.

is exceedingly like this; there the fact of Dr. Parson haying acted as surrogate was held by Lord Ellenborough, C. J., to be sufficient primâ facie evidence that he was duly apIn R. v. Roberts, 38 L. T. 690, an pointed, and had competent authority indictment for perjury alleged the to administer an oath, and for that offence to have been committed before proposition Rex v. Verelst was reJ. U., then being and sitting as the ferred to as good law by Lord Campduly qualified and appointed deputy bell, C. J., in Wolton v. Gavin, 16 Q. judge of the county court of W. Proof B. 48. But it was further shown in was given that the perjury took place Rex v. Verelst that Dr. Parson had in the presence of J. U., at the county never been regularly appointed as court, and a certified minute, under surrogate, and Lord Ellenborough the seal of the court, of the proceedings, was put in evidence, entitled, "Minute of judgments, orders, and other proceedings, at a court holden at, etc., before J. U., deputy judge of the said court." It was ruled on a case reserved that there was sufficient proof of J. U. acting as deputy judge, and therefore primâ facie evidence of his appointment as such. Lord Coleridge, C. J., said:

"I am of opinion that the conviction should be affirmed. One of the best recognized principles of law, Omnia praesumuntur esse rite et solemniter acta donec probetur in contrarium, is applicable to public officers acting in discharge of public duties. The mere acting in a public capacity is sufficient primâ facie proof of the proper appointment; but it is only a prima facie presumption, and it is capable of being rebutted, and in the case of Rex v. Verelst that presumption was rebutted in fact, and the person who there had acted as surrogate for twenty years was proved to have been improperly appointed. The case of Rex v. Verelst, 3 Camp. 433,

then held that the evidence that Dr. Parson was not duly appointed a surrogate could not be shut out, however long he might have acted in that capacity, and that the presumption arising from his acting only stood until the contrary was proved. That is an instructive case, as showing the true rule as to the primâ facie presumption in such cases. It is laid down in all the text-books as a recognized principle that a person acting in the capacity of a public officer is primâ facie to be taken to be so, and that principle was adopted by Patteson, J., in Doe dem. Bowley v. Barnes, 8 Q. B. 1043. In that case there was a demise by the church wardens and overseers of some parish property, and the fact that they acted as churchwardens and overseers at the time of the demise was held to be sufficient primâ facie proof for the purpose of an action of ejectment without proving their appointment." He then referred to the decision of Tindal, C. J., to the same effect, in R. v. Newton, Car. & Kir. 469, and to R. v. Jones, 2 Camp. 131; and added: "This objection, if

'People v. Phelps, 5 Wend. 10, 1830; State v. Clark, 2 Tyler, 277, 1803. * Lambert v. People, 76 N. Y. 220, 1879. Supra, ? 1246.

respect, differ from that class of cases in which it is sufficient to prove that an officer whose action is assailed had a de facto right. No de facto title by the officer administering the oath will sustain an indictment for perjury. But perjury may be assigned on an oath erroneously taken, while the proceedings in which it was taken remained unreversed.2 And an oath administered by an officer (though incompetent) in presence of the court is regarded as administered by the court.3

Perjury not extra

territorially punishable.

§ 1264. According to English and American law, one State has no jurisdiction of perjury committed in another State, against the authority of such other State; nor does it make any difference that such perjury was committed in an affidavit taken before a judge of the prosecuting State at the time sojourning in the foreign State, such judge not being authorized so to act by the prosecuting State. There are, however, exceptions to this rule:

Perjury before consuls, etc., abroad, by statute, may be punished in the United States."

Perjury before a commissioner to take testimony, though committed abroad, is punishable both in the State where the false oath is taken, and in the State from which the commission issues." But

3

✦ Musgrave v. Medex, 19 Ves. 652; Whart. Confl. of Laws, ? 853.

it were good, would extend very 2 Van Steenburgh v. Kortz, 10 widely, for, suppose perjury com- Johns. 167, 1813. Infra, & 1273. mitted on the first time of acting in Stephens v. State, 1 Swan, 157, his office before a judge or a recorder 1851. See infra, 1313, for other or county court judge, or any person cases. who fills a responsible public position, would it lie on the prosecution to show the appointment of such an officer in the strictest possible way? Mr. Jelf has not satisfied me that it would, and no member of the court has any doubt that there is no ground for such a contention." See infra, 1315.

5 Jackson v. Humphrey, 1 Johns. 498, 1806. See Wickoff v. Humphrey, Ibid.

6

Supra, 276; Whart. Conf. of Laws, ? 873.

7 Com. v. Smith, 11 Allen, 243, 1865. See supra, ?? 279, 280, 284, 288 et seq.; and see article on extra-territorial crime in Crim. Law Mag. for March, 1885.

1 R. v. Verelst, ut supra; R. v. Roberts, ut supra; R. v. Newton, 1 C. & K. 469; State v. Hascall, 6 N. H. 352, 1833; Staight v. State, 39 Ohio St. 496, 1883; Muir v. State, 8 Blackf. 154, 1846; Biggerstaff v. Com., 11 Bush, 169, 1874. Infra, 1315. See Confl. of Laws, 722. Supra, 287,

8

Supra, 276, 288; see Stewart v. State, 22 Ohio St. 477, 1872; Whart.

People v. Phelps, 5 Wend. 10, 1830; 288.

State v. Clark, 2 Tyler, 277, 1803;

Woodson v. State, supra.

the authority of the commissioner is strictly limited by his commission; and if he transcend it, any oath administered by him is not the subject of prosecution in the State from which the commission issues.1

Fraudulent use of a false foreign affidavit, though the perjury itself is not cognizable, is indictable at common law.2

Whether a State court has jurisdiction of perjury in a federal procedure will be presently considered.3

State mag

istrate

under act of Congress may ad

§ 1265. It has been held that if a State magistrate administer an oath under an act of Congress expressly giving this power to magistrates of his class, it is to be regarded as a lawful oath by one having competent authority; as much so as if he had been especially appointed a commissioner under a law of Congress for that purpose.* The same view has been taken where the authority of the State officer to administer the oath is implied under the act of Congress.5 But the right of Congress to impose duties of this class on State officials may be questioned.

minister oath.

And so justice of the 8 peace and arbitrators

§ 1266. Perjury may be assigned on an oath administered by a justice of the peace, on the investigation of a matter submitted to arbitration by a rule of court, with the consent of parties. The same rule applies to arbitrators. But it may be otherwise if the arbitrators have no power to make a binding award.9

under

rule of

arbitration.

VI. IN PROCEEDING AUTHORIZED BY LAW.

§ 1267. To constitute the technical offence of perjury at common law, it must appear that the false swearing was in a judicial proceeding, or, as we will see hereafter," in proceedings which by

10

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False swearing must be in proceeding

by law.

statute have this predicate assigned to them. It must be remembered, however, that in some jurisdictions it is held that the making of a false affidavit in any proceeding authorized by statute is held to be a distinctive misdemeanor; authorized though in an indictment for such an offence, the averments peculiar to perjury may be rejected as surplusage.1 If the defendant took a false oath when examined as a witness at a trial; or in an affidavit to or answer to a bill in equity; or in depositions in a court of equity or before a commissioner to take depositions for a foreign court; or on a motion for continuance;" or in proceedings before referees; or in an affidavit in any pending issue in court, such as a motion for a new trial; or upon a wager of law; or upon a commission for the examination of witnesses;10 or in justifying bail in any of the courts;" or before a federal commissioner;12 or on a plea in abatement ;13 or in naturalization proceedings; or upon an affidavit in habeas corpus proceedings;15 or in a judicial proceeding in a court baron ;16 or before a grand jury;" or in mitigation of sentence ;18 or before a legally authorized ecclesiastical court;19 it is perjury.20

14

1 R. v. Hodgkiss, L. R. 1 C. C. 212; Rump v. Com., 30 Pa. 475, 1858. Supra, 1244. Infra, & 1270.

25 Mod. 348; 3 Inst. 66; R. v. White, M. & M. 271; Com. v. Warden, 11 Metc. 406, 1846.

3 5 Mod. 348.

Supra, & 1264.

5 State v. Hobbs, 40 N. H. 229, 1860; State v. Johnson, 7 Blackf. 49, 1843; State v. Flagg, 27 Ind. 24, 1866; State v. Shupe, 16 Iowa, 36, 1864; Morrell v. People, 32 Ill. 499, 1863; Sanders v. People, 124 Ill. 218, 1888.

State v. Keene, 26 Me. 33, 1846. 75 Mod. 348; 1 Show. 335, 397; 1 Ro. Rep. 79, per Coke, C. J.; Stewart v. State, 22 Ohio St. 477, 1872; State v. Keenan, 8 Rich. 456, 1832.

8 State v. Chandler, 42 Vt. 446, 1869; Kemp v. State, (Tex.) 13 S. W. Rep. 869, 1890.

9 Noy, 128.

10 Cro. Car. 99. See 1 B. & P. 240. 11 Com. v. Hughes, 5 Allen, 499, 1862; Com. v. Carel, 105 Mass. 582, 1870; Pollard v. People, 69 Ill. 148,

1873; State v. Lavalley, 9 Mo. 834, 1846; People v. Bartman, 81 Cal. 200, 1889. See Stratton v. People, 20 Hun, 288, 1880.

12 U. S. v. Volz, 14 Blatch. 15, 1876. 13 State v. Roberts, 11 Humph. 539, 1851.

14 U. S. v. Jones, 14 Blatch. 90, 1877. In this case J. testified, as a witness, that he was well acquainted with the applicant. It appeared that he was a total stranger to the applicant, and volunteered as a witness. This was held perjury. See, also, State v. Whittemore, 50 N. H. 245, 1870; State v. Helle, 2 Hill, (S. C.) 290, 1834; and see infra, ¿ 1275.

15 White v. State, 1 Sm. & M. 149, 1844.

16 5 Mod. 348; 1 Ibid. 55, per Twisden, J.

17 Supra, & 1261.

18 State v. Keenan, 8 Rich. L. 456, 1832.

19 5 Mod. 348. Supra, ? 1260. 20 Archb. Crim. Plead. (9th ed.) 538; 1 Hawk. c. 69, s. 3.

§ 1268. An indictment lies against a juror which alleges that he falsely and corruptly swore upon his voir dire, that he Juror inhad not formed or expressed an opinion on the merits of for false the case, when in fact he had.1

dictable

swearing on voir dire.

Voluntary davits are

false affi

not per

§ 1269. But a mere voluntary oath cannot amount to perjury. Therefore, false swearing in a voluntary affidavit, made before a justice of the peace or notary, before whom no cause is pending, and under no statutory pro- jury. cedure, is not perjury. Even when a reference before arbitrators is pending, it is not perjury to swear falsely before a justice to an affidavit to be used by them, if no suit or legal procedure could be based on their action. And the same rule applies to all extrajudicial oaths, and to oaths not required by law. Even false swearing to an affidavit attached to a bill in equity is held not to be perjury when the bill is one not required by law to be verified.5

But other

§ 1270. As has been seen," when a statute authorizes an affidavit to be made as a foundation for any legal claim or right, the false swearing to such an affidavit is, in England, an wise as to indictable misdemeanor at common law, while in most jurisdictions in this country such false oath is held to be

1 State v. Wall, 9 Yerg. 347, 1836; State v. Moffatt, 7 Humph. 250, 1846; State v. Howard, 63 Ind. 502, 1878. See Com. v. Stockley, 10 Leigh, 678, 1840; Finch v. U. S., 1 Okl. Ter. 396, 1893.

U. S. v. Nickerson, 1 Sprague, 232, 1858; Com. v. Knight, 12 Mass. 274, 1815; Jackson v. Humphrey, 1 Johns. 498, 1806; People v. Travis, 4 Parker C. R. 213, 1854; Shaffer v. Kentzer, 1 Binn. 542, 1809; Lamden v. State, 5 Humph. 83, 1844; State v. Wyatt, 2 Hayw. 56, 1797; State v. Dayton, 3 Zab. 49, 1850; State v. Lloyd, 77 Wis. 630, 1890; Collins v. State, 33 Fla. 446, 1894; People v. Allen, 27 N. Y. Week. Dig. 236, 1887. It is doubted if perjury can be assigned upon the oath made for the purpose of obtaining a marriage license; R. v. Alexander, 1 Leach, 74; but see 1 Ventr. 370; Davidson v. State, 22 Tex. App. 372, 1886; Steber v. State, 23

statutory affidavit.

Tex. App. 176, 1887; and in R. v. Foster, R. & R. 459, a false oath taken before a surrogate, to procure a marriage license, was holden not sufficient to support a prosecution for perjury. The contrary, however, was ruled in R. v. Chapman, 1 Den. C. C. 432; 2 C. & K. 846. See Avery v. Ward, 150 Mass. 160, 1889. In South Carolina, doubts have been expressed on a cognate point. Pegram v. Styrm, 1 Bailey, 595, 1830. In such a case it is usual to indict as for a mere misdemeanor at common law. Archb. Crim. Plead. (9th ed.) 538; R. v. Hodgkiss, L. R. 1 C. C. 212. Supra, 1267.

3 Mahan v. Berry, 5 Mo. 21, 1837. See supra, ? 1266.

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