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We may in general conclude that at common law the words wilfully," "corruptly," and "falsely” are terms which cannot be omitted with safety.
2. Sworn before Competent Jurisdiction. $ 1287. “Duly sworn” is sufficient to describe the swearing; Oath must
nor need the particular mode be set forth. Hence it is be properly sufficient to aver that the defendant “did then and there set forth.
in due form of law, take his corporal oath,” without stating whether he was sworn on the gospels, or with uplifted hand." But “sworn ” (or affirmed) must be distinctly alleged ;- and where
"wilfully” and corruptly were statute, see State v. Morse, 1 Greene, used.
503, 1848. “Knowingly " is said not In State v. Bixler, 13 Md. Rec. 103, to be necessary when “falsely, wil1884, “corruptly” was dispensed with. fully, and corruptly” are averred. See, also, State v. Anderson, (Iowa) State v. Sleeper, 37 Vt. 122, 1864. 60 N. W. Rep. 630, 1894. “Wilfully » Under Texas statute, see Smith v. must be alleged. U. S. v Edwards, State, 1 Tex. App. 620, 1877 ; State v. 43 Fed. Rep. 67,1890. Feloniously” Flowers, 109 N. C. 841, 1891. must be alleged. Wile v. State, 60 ? See infra, / 1305; R. v. McCarther, Miss. 260, 1882.
Peake, 211; Tuttle v. People, 36 N. Y. An indictment against an insolvent 431, 1867; Dodge v. State, 4 Zab. 455, debtor for perjury, in swearing to a 1854; State v. Farrow, 10 Rich. 165, schedule which did not discover cer- 1856. See Com. v. Warden, 11 Metc. tain debts owing to him, was held bad 406, 1846 ; People v. Warner, 5 Wend. on demurrer for not averring that he 271, 1830; Beach v. State, 32 Tex. Cr. well knew and remembered that the 240, 1893. omitted debts were then justly due Resp. v. Newell, 3 Yeates, 407, and owing to him. Com. v. Cook, 1 1802. See State v. Freeman, 15 Vt. Rob. (Va.) 789, 1842.
723, 1843; Jackson v. State, 15 Tex. That the words “committed per- App. 579, 1884. jury” are not essential when the con- * State v. Divoll, 44 N. H. 140, 1862; stituents of the offence are given, see State v. Hamilton, 65 Mo. 667, 1877. Massie v. State, 5 Tex. App. 81, 1878.
It has been ruled that in cases ' R. v. Stevens, 5 B. & C. 246 ; R. v. where, to give magistrates jurisdiction Richards, 7 D. & R. 665; R. v. Harris, to hear a case punishable on summary 1 Ibid. 578; 5 B. & A. 926; U. S. v. conviction, it is essential that they Babcock, 4 McLean, 113, 1846; Thomas should have an information on oath v. Com., 2 Rob. (Va.) 795, 1843; Coth- made before them, it is not sufficient ran v. State, 39 Miss. 541, 1860; State in an indictment for perjury, alleged v. Carland, 3 Dev. 114, 1831 ; State v. to have been committed on the hearBobbitt, 70 N. C. 81, 1874; Juaracqui ing of such information, to allege that v. State, 28 Tex. 625, 1866; State v. before M. G., Esq., and T. H. H., Webb, 41 Ibid. 67, 1874; Allen v. clerk, two of the justices, etc , the State, 42 Ibid. 12, 1875. Under Iowa magistrates who heard the case, J. O.
the procedure is special, prescribed by statute, the special oath so prescribed must be averred.
At common law the name and office of the person or court administering the oath must be given, and a variance in this respect is fatal.
It is, however, enough to allege swearing before a court;" and proof of swearing before an officer of court, in presence of the court, will sustain an allegation of swearing before or by the court.”
An indictment charged the defendant with having sworn to tell "the truth, the whole truth, and nothing but the truth.” The evidence was that he was sworn to tell “the whole truth and nothing but the truth.” It was held that the variance was immaterial. § 1288. By stat. 23 Geo. II. c. 11, it is “sufficient to set forth by what court, or before whom the oath was
Detailed taken, averring such court or person or persons to have authority competent authority to administer the same." By the need not English practice, under the statute, the nature of the be given. authority need not be specified. In the United States, there are jurisdictions in which the relaxation of the common law affected by the statute has not been accepted; and where it has been held necessary to set forth all the facts essential to constitute the authority to administer the oath. But as a general rule, the principle of the statute has been accepted among us as virtually a part of the common law, though it must appear from the indictment that the came and exhibited a certain informa- (Q. B.) 398; R. v. Mason, 29 Ibid. tion upon oath, because it does not 431. See Burns v. People, 59 Barb. sufficiently show that J. O. was sworn 531, 1871; U. S. v. Walsh, 22 Fed. before M. G. and T. H. H. R. v. Rep. 644, 1884. Goodfellow, Car. & M. 569.
8 State v. Gallimon, 2 Ired. 372, State o. Blackstone, 74 Ind. 592, 1842; Lodge v. Com., 2 Gratt. 579, 1881.
1845; McGregor v. State, 1 Carter, ? Kerr v. People, 42 Ill. 307, 1866; (Ind) 232, 1848; Heflin v. State, 88 State o. Street, 1 Murph. 156, 1807. Ga. 151, 1891. See State v. Hanson,
* Bitesman v. State, 48 Ind. 473, 39 Me. 337, 1855; State v. Nickerson, 1874; State v. Harlis, 33 La. An. 1172, 46 Iowa, 447, 1877. 1881 ; State v. Oppenheimer, 41 Tex. 9 U. S. v. Deming, 4 McLean, 3, 82, 1874.
1845 ; State v. Langley, 34 N. H. 529, Campbell v. People, 8 Wend. 636, 1857 (cited infra, & 1297); Com. v. 1832.
Hatfield, 107 Mass. 227, 1871; Burns * Supra, & 1257; infra, & 1315. v. People, 59 Barb. 531, 1871; People
• State v. Gates, 17 N. H. 373, 1845. v. Warner, 5 Wend. 271, 1830; State See R. o. Southwood, 1 F. & F. 356. v. Ludlow, 2 South. 772, 1820; State
* R. r. Calanan, 6 B. & C. 102; 9 1. Dayton, 3 Zab. 49, 1850; State v. D. & R. 97 ; R. v. Doty, 13 Up. Can. Wise, 3 Lea, 38, 1879; Kimmel v.
officer administering the oath was of a class authorized by law to act
taken before a subordinate statutory officer, specially
it is not enough to aver that the perjury was committed before "a commissioner of the United States duly appointed.” The mode and authority of the appointment, and the official title of the officer, must be set out." § 1290. The jurisdiction of the court over the subject matter must
be distinctly averred. The title of the court must be Jurisdiction must correctly given ;o and if a quorum is essential to jurisdicbe averred.
tion, it is proper to aver that a due quorum of the judges was present.” But if jurisdiction be averred, the subordinate prerequisites of regularity may be inferred from the other allegations, when not explicitly stated. Thus, in perjury committed by a
People, 92 Ill. 457, 1879; State v. 1819; R. v. Doty, 13 Up. Can. (Q. B.)
State v. Freeman, 15 Vt. 723,
Bl. 439; Com. v. Hatfield, 107 Mass. * State v. Owen, 73 Mo. 440, 1881, 227, 1871. Supra, & 1257. and prior cases cited in this section. It has been held that jurisdiction
* U. S. v. Wilcox, 4 Blatch. C. C. is sufficiently averred in an indictment 391, 1859. See Flint v. People, 35 which charges that a petition for proMich. 491, 1877.
tection from process was, under 5 & 6 5 State v. Hanson, 39 Me. 337, 1855; Vict. c. 116, 7 & 8 Vict. c. 96, and 10 State v. Thurstin, 35 Ibid. 205, 1853; & 11 Vict. c. 102 (Insolvent Debtors' State v. Plammer, 50 Ibid. 217, 1861; Acts), filed and presented at the Steinson v. State, 6 Yerg. 531, 183t; county court of S., at W., by the deState v. Witherow, 3 Murph. 153, fendant; that he afterward obtained
petitioner in bankruptcy, it is unnecessary to set forth the petition ; such reference to it as will show its character and object is sufficient. In States where the statute of George II. is not in force, and where there is no similar relaxing statute, there is, as has been seen, authority to the effect that the whole record should be set forth. But such cumbrous and entrapping particularity will scarcely at present be anywhere exacted.
$ 1291. If the facts be stated, as to time or place, with uncertainty or repugnancy, the indictment will be bad.? And a variance as to time of oath, when the latter is proved place must by record, is fatal. But where the indictment charged ly averred. the defendant with having committed perjury, by swearing at a court in July that he had witnessed a transaction in October of the same year, it was held not to be such a repugnancy as to afford cause for arresting judgment."
an order of protection; but afterward, 1 U. S. v. Deming, 4 McLean, 3, while the proceedings were pending 1845. Supra, & 1289; infra, X 1299. in the county court, to wit, at the 2 State v. Keel, 54 Mo. 182, 1873; time of the filing the petition and U. S. v. Law, 50 Fed. Rep. 915, 1892; schedule, he came before K., a com- U. S. v. Adler, 49 Fed. Rep. 733, missioner to administer oaths in chan- 1892; State v. Ah Lee, 18 Oreg. 540, cery, duly appointed and empowered 1890; State v. Frisby, 90 Mo. 530, to act in the matter of the insolvent, 1886; Gabe v. State, (Tex.) 18 S. W. and take the defendant's oath then Rep. 413, 1892; Maul v. State, (Tex.) and there at the county court, and 26 S. W. Rep. 199, 1894; State v. within the jurisdiction aforesaid, for Fenlason, 79 Me. 117, 1887; Com. v. the purpose of making an affidavit, McClelland, 7 Ky. L. R. 769, 1886; and verifying his petition on oath, Rhodes v. Com., 8 Va. L. J. 430, 1884, and was duly sworn before K., and 3 Whart. Crim. Ev. & 103 a. Infra, swore and took his oath that the affi- & 1314; U. S. v. McNeal, 1 Gallis. 387, davit then made was true, K. having 1813; U. S. v. Bowman, 2 Wash. C. competent power and authority to C. 328, 1808; Com. v. Monahan, 9 administer the oath. The indictment Gray, 119, 1857 ; Rhodes's Case, 78 Va. went on to aver that certain matter 692, 1884. was material in the matter of the in- * State v. McKennon, Harp. 302, solvency, and that the affidavit was 1824. If the offence is found to have false in respect thereof. The defen- been committed on any day within dant was convicted, and judgment statute of limitations it will be suffisustained. Walker v. R., (in error) 8 cient. Clark v. State, 89 Ga. 768, El. & Bl. 439; 27 L. J. M. C. 43. See 1892. supra, 29 1287 et seq.
3. In a Judicial Proceeding.
$ 1292. An indictment for perjury, either at comJudicial proceeding mon law or under 23 Geo. II. c. 11, which does not
show on its face that the oath was in a judicial proceedaverred.
ing, is bad. Thus, an omission to charge in the bill of indictment that the matter of traverse tried between the State of Tennessee and D., touching which the defendant gave his evidence, was by indictment or presentment, is fatal.2 $ 1293. It has been shown that it is necessary that the proceed
ings should have been regular. Thus, where it becomes appearthat necessary, in charging the commission of the offence, to proceed
allege that a certain term of county court was duly regular
holden, it is not at common law sufficient to allege that it was holden by and before the chief judge of such court, without mention of any assistant judges. And it must appear that the party administering the oath had authority.”
R. v. Overton, 4 Q. B. 83; 3 G. & appear before certain justices, being D. 133; State v. Lamont, 2 Wis. 437, and acting as two justices of the peace 1853 ; Morrell v. People, 32 Ill. 499, in and for a county, to answer before 1863. See, for adequate form, Com. v. such justices a certain information Carel, 105 Mass. 582, 1870.
and complaint against him, of having An indictment was held defective opened his house (a beer-house) on a which merely stated that the defen- Sunday, for the sale of beer, after dant, intending to subject W. M. to three and before five in the afternoon ; the penalties for felony, went before K. duly appeared before the justices two magistrates, and “ did depose and at the petty sessions of a petty sesswear,” etc., setting out a deposition, sional division in the county, and that which stated that W. B. had put his at the hearing, the defendant being hand into defendant's pocket and called as a witness for K., falsely swore taken out a £5 note, and assigning that he had not been in the house of perjury upon it. The defects stated K. at all that day; that he had never were that the indictment did not show seen a certain policeman, and had not that any charge of felony had been been in B. that day, or for a fortnight previously made, or that the defen- before. It was ruled that it was dant then made any charge of felony, sufficiently alleged in the indictment or that any judicial proceeding was that the offence was one over which pending before the magistrate. R. v. the justices had jurisdiction, and that Pearson, 8 C. & P. 119; Covey v. State, it was committed in a place where 23 Tex. App. 388, 1887. Supra, & 1277. they had jurisdiction. R. v. Shaw, L. 2 Steinson v. State, 6 Yerg. 531, 1834. & C. 579; 10 Cox C. C. 66. Supra, 8% 1267, 1273, 1287.
State v. Freeman, 15 Vt. 723, 1843. It was averred in the indictment
Supra, & 1251 ; see Eighmy v. Peothat after K. was duly summoned to ple, 79 N. Y. 546, 1880.