perjury. But in such case the affidavit must be within the purview of the statute. If it be so, or if the affidavit be made in conformity with any enabling statutes, the offence is a misdemeanor, if the oath were taken before a party authorized to administer the same.3 It is not necessary that a statutory affidavit should do more than substantially follow the statute.*

Perjury, under naturalization proceedings, is elsewhere considered."

1 So as to affidavits before assessors of taxes. State v. Cannon, 79 Mo. 343, 1883.

As to affidavit under timber laws, U. S. v. Madison, 3 W. Coast Rep. 543, 1884.

Testimony before land office, Peters v. U. S., (Okl.) 33 Pac. Rep. 1031, 1893; Caha v. U. S., 152 U. S. 211, 1893; Rich v. U. S., 1 Okl. 354, 1893; Fisher v. U.S., 1 Okl. 252, 1892; Finch v. U. S., 1 Okl. 396, 1893.

"(2) A. takes a false oath before commissioners appointed by the king to inquire into cases in which a royal grant was required to confirm title to lands. A. commits a misdemeanor. Hobart, 62.

"(3) A. swears a false affidavit under the Bills of Sale Act (17 & 18 Vict. c. 36). A. commits a misdemeanor. R. v. Hodgkiss, L. R. 1 C. C. 212.”

For false affidavits by solicitors, see As to qualification of voter, State v. R. v. Moojen, Lond. L. T. Dec. 6, Hopper, 133 Ind. 460, 1892.

2 R. v. Barnes, 10 Cox C. C. 539; State v. Helle, 2 Hill, (S. C.) 290, 1834. See U. S. v. Kendrick, 2 Mason, 69, 1820; U. S. v. Babcock, 4 McLean, 113, 1846; U. S. v. Sonachall, 4 Biss. 425, 1864; State v. Foulks, 57 Mo. 461, 1874.

That the authority for such statutory oath must be specially averred, see infra, 1287. That irrelevant matter in such an affidavit is not under the statute, see State v. Helle, supra.

3 Ralph v. U. S., 11 Biss. 88, 1881; U. S. v. Curtis, 107 U. S. 671, 1882; Steph. Dig. Crim. Law, art. 138, citing the following:

1879.

A party making a false affidavit before a justice of the peace of a State, in order to establish a claim against the United States, is indictable under the Act of Congress passed March 1, 1823, to prevent false swearing touching public money, though such affidavit was not expressly authorized by Act of Congress. U. S. v. Bailey, 9 Pet. 238, 1835.

As the averment of "perjury" in such an affidavit can be rejected as surplusage, and the defendant sentenced for the constituent misdemeanor (see R. v. Hodgkins, supra, 1244), the difference, supposing the indictment to be for perjury, is immaterial. See Tuttle v. People, 36 N. Y. 431, 1867; infra, 1287; sustaining in such case the allegation of perjury. * Supra, 1251. That it need not be signed, see supra, ? 1252.

"(1) A. takes a false oath before a surrogate in order to obtain a marriage license. A. commits a misdemeanor. Chapman's Case, 1 Den. C. C. 432. See R. v. Barnes, 10 Cox C. C. 539; Call v. State, 20 Ohio St. 330, Supra, 266; infra, 1275. U. 1870; Warwick v. State, 25 Ibid. 21, S. v. Walsh, 22 Fed. Rep. 644, 1884.

5

1874.

committed by a

If the

Party may

be guilty of perjury in his own

§ 1271. The fact that the alleged perjury is party testifying in his own case is no defence. party offer himself as a witness, be sworn, and testify falsely, perjury may be assigned on the oath thus taken.' As has been seen, perjury may be committed in an answer to a bill in equity. But this is not the case when the affidavit is without either legal sanction or effect.2

3

case.

suit.

§ 1272. A suit which is actually void and null from want of jurisdiction or other incurable defect is not one in which No perjury perjury can be committed. Thus it is not perjury to in void swear falsely in a discontinued or abated suit. But if the proceeding is merely voidable, even though there be such defects as require a reversal on error, false swearing in its conduct is perjury, if the false evidence could by any contingency be introduced as testimony. A fortiori is this the case with all defects which could be amended by the trial court. But perjury cannot be committed in a suit not pending; unless it be in depositions taken in preparations for such suit."

1 R. v. Mullany, 10 Cox C. C. 97; L. & C. 593; R. v. Tichborne, London, May, 1873; State v. Keene, 26 Me. 33, 1846; Van Steenburg v. Kortz, 10 Johns. 167, 1813; Montgomery v. State, 10 Ohio, 220, 1840; Resp. v. Newell, 3 Yeates, 417, 1802; State v. Molier, 1 Dev. 263; Haley v. McPherson, 3 Humph. 104, 1842; Ex parte Carpenter, 64 Cal. 267, 1883. See, however, R. v. Clegg, 19 L. T. (N. S.) 47; State v. Hamilton, 7 Mo. 300,1841. As to incompetent witness, see supra, ? 1254; infra, 1280.

2 Silver v. State, 17 Ohio, 365, 1848; People v. Gaige, 26 Mich. 30, 1872; supra, 1270; infra, ?? 1276, 1304.

3 R. v. Cohen, 1 Stark. 511; R. v. Ewington, C. & M. 319; 2 Mood. C. C. 223; R. v. Pearce, 3 B. & S. 531; 9 Cox C. C. 258; R. v. Scotton, 5 Q. B. 493; Urquhart v. State, (Ala.) 16 So. Rep. 17, 1894. Infra, 8 1294, 1295; supra, 1256.

R. v. Pearce, 3 B. & S. 531; 9 Cox C. C. 258; State v. Hall, 49 Me. 412, 1862. Supra, 1258.

5 Infra, 1294, 1295; R. v. White, M. & M. 271; King v. R., 3 Cox C. C. 561; 14 Q. B. 31; R. v. Millard, 6 Cox C. C. 150; R. v. Simmonds, 8 Ibid. 190; R. v. Hailey, R. & M. 94; R. v. Christian, C. & M. 388; R. v. Meek, 9 C. & P. 513; Pippet v. Hearn, 1 D. & R. 266; R. v. Fletcher, L. R. 1 C. C. 320; U. S. v. Reese, 4 Sawy. 629, 1866; State v. Keene, 26 Me. 33, 1846; Van Steenburgh v. Kortz, 10 Johns. 167, 1813; State v. Hall, 7 Blackf. 25, 1843; State v. Lavalley, 9 Mo. 834, 1846.

• R. v. Christian, C. & M. 388; R. v. Fletcher, L. R. 133, 370; 12 Cox C. C. 77; State v. Keene, 26 Me. 33, 1846; Com. v. Smith, 11 Allen, 243, 1865; State v. Lavalley, 9 Mo. 835, 1846; see Van Steenburgh v. Kortz, 10 Johns. 167, 1813.

See supra, 1267; R. v. Cohen, supra; State v. Whittemore, 50 N. H. 245, 1870; People v. Chrystal, 8 Barb. 546, 1850; People v. Titmus, (Mich.) 60 N. W. Rep. 693, 1894.

Nor on

oath as to

§ 1273. At common law perjury cannot be committed

future offi- in an official oath, so far as such oath touches future con

cial conduct.

Not necessary to show additional en

abling proof.

has ordinarily no jurisdic

tion of false swearing in federal court.

duct.1

§ 1274. Perjury may be assigned upon an oath or affidavit which is insufficient to effect the purpose for which it was taken without additional proof, and it is not necessary to show or aver that such additional proof was made.2

§ 1275. A State court, it has been ruled, cannot punish for perState court jury when made such under an act of Congress, and such is the true view when the offence is exclusively against the United States. Yet it is on principle otherwise when the offence strikes at the integrity of the State. Hence false swearing in a naturalization case is perjury at common law, and though it may also be an offence against the federal government, the offender may be indicted and punished in a State court. Whether a State court can act generally under an act of Congress has been already discussed." It is conceded that a State court has no jurisdiction of false swearing in a trial in a federal court.7

5

VII. IN A MATTER MATERIAL.

§ 1276. The assignment of perjury on which a conviction is asked must be in a matter which was material to the issue, tending

1 State v. Dayton, 3 Zab. 49, 1850; This question is discussed in detail in 1 Hawk. P. C. 431. Whart. Com. Am. Law, ? 524.

3 U. S. v. Cornell, 2 Mason, 60, 1819; Ex parte Bridges, 2 Woods, 428, 1875; s. c. under name of Brown v. U. S., 14 Am. Law Reg. (N. S.) 566, 1875; State v. Pike, 15 N. H. 83, 1844; Davison v. Champlin, 7 Conn. 244, 1828; Jackson v. Rose, 2 Va. Cas. 34, 1815; State v. McBride, Rice, 400, 1839, questioning State v. Wells, 2 Hill, 687, 1835; State v. Adams, 4 Blackf. 146, 1836; People v. Kelly, 38 Cal. 145, 1869; State v. Kirkpatrick, 32 Ark. 117, 1877. See contra, U. S. v. Smith, 1 South, 33, 1818; Buckwalter v. U. S., 11 S. & R. 193, 1824.

245, 1870;
475, 1858.
man, 3
supra,
topic.

See supra, & 266; U. S. v. Bailey, 9 Pet. 238, 1835; State v. Whittemore, 50 N. H. 245, 1870; Rump v. Com., 30 Pa. 475, 1858. Compare People v. Sweetman, 3 Parker C. R. 358, 1857.

'See prior cases cited to this section; State v. Shelley, 11 Lea, 594, 1883.

9 2 Russ. on Cr. (6th Am. ed.), 600; R. v. Worley, 3 Cox C. C. 535;

swearing

must have bett

been in matter

material.

to prove a fact bearing on such issue. Thus, in a com- False mon case, if a witness be asked whether goods were paid for "on a particular day," and he answer in the affirmative; if the goods were really paid for, though not on that particular day, it will not be perjury,2 unless the day be material. It has also been ruled that it was not perjury when a witness falsely swore that a thing which occurred on a particular Sunday did not occur on a Sunday between two dates which included the Sunday in question; the court holding that the attention of the witness should have been called to the particular day. the same principle it has been held that if a person swear that J. S. beat another with his sword, and it turned out that he beat him with a stick, this is not perjury when the character of the weapon is not at issue. And, generally, superfluous and irrelevant matter, stated in an affidavit for a writ of habeas corpus, although false, is not perjury. But evidence mitigating or aggravating damages is

in this sense always material."

On

§ 1277. Yet when such apparently superfluous matter goes to give circumstantiality to the narrative, and to form therefore a link in the chain of proof, it becomes material as contributing largely to

R. v. Owen, 6 Ibid. 105; R. v. Naylor, 11 Ibid. 13; R. v. Alsop, Ibid. 264; R. v. Tate, 12 Ibid. 7; U. S. v. Landberg, 21 Blatch. 169, 1882; State v. Trask, 42 Vt. 152, 1869; State v. Meader, 54 Vt. 126, 1881; Com. v. Knight, 12 Mass. 274, 1815; Com. v. Smith, 11 Allen, 243, 1865 Com. v. Grant, 116 Mass. 17, 1874; State v. Hobbs, 40 N. H. 229, 1860; Campbell v. People, 8 Wend. 636, 1832; Conner e. Com., 2 Va. Cas. 30, 1815; Crump . Com., 75 Va 922, 1882; Rhodes's Case, 78 Va. 692, 1884; State v. Aikens, 32 Iowa, 403, 1871; State v. Flagg, 25 Ind. 243, 1865; People v. Gaige, 26 Mich. 30, 1872; Beecher v. Anderson, 45 Ibid. 543, 1881; Pollard v. People, 69 Ill. 148, 1873; State v. Hattaway, 2 N. & M. 118, 1819; Hinch v. State, 2 Mo. 158, 1829; State v. Bailey, 34 Ibid. 350, 1864; Gibson v. State, 44 Ala. 17, 1870; Nelson v. State, 47 Miss. 621, 1873; Page v.

State, 59 Ibid. 475, 1882; Martinez v. State, 7 Tex. App. 394, 1879; Young v. People, 134 Ill. 37, 1890; People v Perazzo, 64 Cal. 106, 1883. See Platt v. Braumsdorff, 40 Wis. 107, 1876. Unless dispensed with by statute State v. Byrd, 28 S. C. 18, 1887. Cf. article by Prof. Chase, in 3 Crim. Law Mag. 459.

1 U. S. v. Shinn, 8 Sawy. 403, 1882 Com. v. Grant, 116 Mass. 17, 1874. 22 Ro. Rep. 41, 46. See R. don, 12 Cox C. C. 50.

v.

Lon

But circumstan

tiality of detail may be

the witness's credibility.' Bald statements of results (e. g., "He struck me," as in a case just mentioned) want one of the prime essentials of reliable testimony. For a witness knowingly to fabricate details, in order to strengthen his credibility, is as much perjury as is any other false swearmaterial. ing. Hence it has been rightly held that perjury may be committed in swearing falsely to a collateral matter with intent to prop the testimony on some other point. Thus where three or more persons were alleged to be jointly concerned in an assault, and it was contended to be immaterial, if all participated in it, by which of them certain acts were done, the contrary was held, and it was ruled that evidence as to the acts of any one, if wilfully and falsely

1 R. v. Overton, 2 Mood. 263, C. & M. 655; R. v. Berry, 8 Cox C. C. 121; R. v. Mullaney, L. & C. 593; Com. v. Grant, 116 Mass. 17, 1874; Wood v. People, 59 N. Y. 117, 1874; People v. Grimshaw, 40 Hun, 505; 20 Week. Dig. 116, 1884; People v. Courtney, 94 N. Y. 490, 1884; Dilcher v. State, 39 Ohio St. 130, 1883.

2

was publicly mentioned, so that everybody present must have heard it that the affidavit was C.'s. It was held that the matters sworn were material upon the trial of C. R. v. Alsop, 11 Ibid. 264-C. C. R. See R. v. Tyson, L. R. 1 C. C. 107; R. v. Murray, 1 F. & F. 80.

"A party not only commits perjury by swearing falsely and corruptly as to the fact which is immediately in issue, but also by so doing as to material circumstances which have a legitimate tendency to prove or disprove such fact. He cannot, in the latter case, exonerate himself from the offence, because while the circumstances to which he thus swore did not exist, the fact sought to be established by them did exist." Devens, J., Com. v. Grant, 116 Mass. 17, 1874. See R. v. Overton, 2 Mood. 263, C. & M. 655.

R. v. Tyson, L. R. 1 C. C. 107; 11 Cox C. C. 1; Com. v. Pollard, 12 Metc. 225, 1847; People v. Wood, 59 N. Y. 117, 1874; State v. Dayton, 3 Zab. 49, 1850; State v. Brown, 79 N. C. 642, 1878; Floyd v. State, 30 Ala. 511, 1857; State v. Shupe, 16 Iowa, 36, 1864; Studdard v. Linville, 3 Hawks, 474, 1825. On an assignment of perjury by a defendant in a bastardy case, that he had never kissed the prosecutrix, the question of materiality was held by Wightman, J., to be for the jury. R. v. Goddard, 2 F. & F. 361. See R. v. Schlesinger, 10 Q. B. 670; Where in a county court, on an ac2 Cox C. C. 200. Infra, 1284. Upon tion for having sued for goods sold, the trial of C. for perjury in an affi- P., the defendant, falsely swore on davit, proof was given that the sig- cross-examination that she had never nature to the affidavit was in his been tried at the Old Bailey, and had handwriting; and there was no other never been in custody at the Thames proof that he was the person who Police Station; it was held on a trial made the affidavit. P. was then for perjury that this evidence was called, and swore that the affidavit material. R. v. Lavey, 3 C. & K. 26. was used before the taxing master, Infra, & 1279.

that C. was then present, and that it