§ 1294. Curable irregularities, however, are not fatal.' Thus it

is no defence to perjury on an affidavit that the affidavit But irreguwas not filed. Nor, under most recent statutes of jeo- larities fails, is a variance in details of record fatal.3

which are

curable are not fatal.

Otherwise as to essen

tions.

§ 1295. It is otherwise as to essential prerequisites. Thus judgment was arrested in a case where perjury was charged to have been committed in what was in tial condieffect an affidavit on an interpleader rule; and the indictment set out the circumstances of a previous trial, the verdict, the judgment, the writ of fieri facias, the levy, the notice by the prisoner to the sheriff not to sell, and the prisoner's affidavit that the goods were his property, but omitted to state that any rule was obtained according to the provisions of the interpleader act. And an indictment for perjury in false swearing to a bill of equity which does not show that the bill is one which is required to be verified by oath, is insufficient."

By present

practice only essenments of

tial aver

§ 1296. But so radically have the statutes of jeofails, and those for relaxing the old common law strictness in this respect, affected this portion of criminal pleading, that there is probably no State in which it would now be held necessary to set out the whole record of the suit in which the perjury is alleged to have been committed. is generally enough to state correctly the facts showing that the court had jurisdiction, that the oath was duly administered, and that the proceedings were regular.

recordneed

It be intro

1 See supra, 1273. State v. Shanks, place before the high sheriff. 66 Mo. 560, 1877.

1 R. v. Crossley, 7 T. R. 315. Supra, @ 1288. See R. v. Hailey, 1 C. & P. 258; R. & M. 94; State v. Langley, 34 N. H. 529, 1857. See State v. Sleeper, 37 Vt. 122, 1864. Supra, 1289. * Com. v. Soper, 133 Mass. 393, 1882. R. v. Bishop, C. & M. 302.

4

5 People v. Gaige, 26 Mich. 30, 1872. See Silver v. State, 17 Ohio, 365, 1848. • Several cases to this point have been grouped in other sections of the present chapter. In addition to these the following may be examined:

duced.

It was

proved that when the defendant gave evidence on the writ of trial, neither the high sheriff nor the under sheriff was present, but that the writ of trial was executed before M. S., the sheriff's assessor, who was proved to have been in the constant practice of acting as the sheriff's assessor and deputy; but the writ of trial was directed to the sheriff, and it was stated in the postea that the trial took place before him; it was held by the judges that the allegation in the indictment was supported, and that it sufficiently appeared that M. S. had authority to execute the writ of trial. R. v. Dunn,

An indictment for perjury, alleged to have been committed on a writ of trial, stated the trial to have taken 1 C. & K. 730.

4. How, and to what Extent, the alleged False Matter

is to be set out.

§ 1297. The same rigor has not been required in this country in the setting forth of the alleged false oath of the defenactness in dant, as under the statute of Elizabeth was considered essential in England.' Thus, it is said that at common necessary. law it is only necessary to set forth the substance of

Where the indictment charged per- v. Deming, 4 McLean, 3, 1845; State jury in a matter of traverse between v. Gallimon, 2 Ired. 372, 1842; the State of Tennessee and D., for an Maynard v. People, 135 Ill. 416, 1890. "assault and battery," it was held As to particularity required in old that this was not a sufficient charge of practice, see State v. Gallimon, 2 Ired. the jurisdiction of the court before 374. which the case was tried. Steinson v. State, 6 Yerg. 531, 1834.

the oath, and, when that is done, an exact recital is not necessary;1 hence, when the article "an" was substituted for the article "the," the variance was held immaterial. In a case decided in 1876, in Massachusetts, an indictment charging that the defendant swore that he had personal property in G., in the county of E., and Commonwealth of Massachusetts, was held to be sustained by proof that he swore to a written statement that he had personal property at G., in the county of E., there being proof that the statement was meant for G. in the commonwealth of Massachusetts. But a substantial variance is fatal.*

3

"Sub

§ 1298. At common law, where the tenor of an affidavit is undertaken to be recited, and the recital is variant in a word or letter, thereby introducing a different word, it is fatal." stance" But where a statement of the substance and effect of an fect"

and "ef

affidavit is sufficient, as is now generally the case in enough. English and American practice, and only substance and effect are pretended to be given, evidence of the substance and effect is sufficient. And where the charge is swearing to an affidavit "to the substance and effect following;" a variance, which consisted in using the word "suit" instead of "case," is immaterial."

§ 1299. It is not necessary to set out the whole of what the de

1 R. v. Webster, Bell C. C. 154; 8 Cox C. C. 187. In this case the indictment alleged that a cause was pending in a county court, and that at the hearing it became a material question whether the plaintiff in the cause had, in the presence of the prisoner, signed at the foot of a bill of account, purporting to be a bill of account between a firm called B. & Co. and W., a receipt for payment of the amount of the bill; and that the prisoner falsely swore that the plaintiff did, on a certain day, in the presence of the prisoner, sign the receipt (meaning a receipt at the foot of the first-mentioned bill of account) for the payment of the amount of the bill. The plaintiff in the county court had on other occasions signed similar receipts in the presence of the prisoner. It was ruled that the bill of account

5 Whart. Cr. Pl. & Pr. 22 167 et seq.; · R. v. Leefe, 2 Camp. 134. See State v. Umdenstock, 43 Tex. 554, 1875.

6 Ibid.; State v. Groves, Busbee, 402, 1853; Taylor v. State, 48 Ala. 157, 1872; Gabrielsky v. State, 13 Tex. App. 428, 1883.

State v. Caffey, N. C. Term. R. 272; s. c. 2 Murph. 320, 1818; Whart. Cr. Pl. & Pr. ? 173.

ties need

fendant has sworn: only those parts alleged to be false Only alleged falsi- need be stated,' and such parts may be lumped in one be pleaded. count. The questions which elicited the alleged false answers are also unnecessary. But alleged false statements that are averred consecutively must be proved to have been made consecutively, and the substance must be given.3

Negation

of false matter must be express.

5. How the False Matter is to be negatived.

§ 1300. The general averment that the defendant swore falsely, etc., upon the whole matter, will not be sufficient; the indictment must proceed by particular averments (or, as they are technically termed, by assignments of perjury) to negative that which is false, and it is necessary that the indictment should thus expressly contradict the matter falsely sworn to by the defendant. But while it may be necessary to set forth the whole matter to which the defendant swore, in order to make the rest intelligible, it does not follow that the whole context should be negatived. Even the use of the word "falsely falsely" does not import that the whole is false; and it is only necessary to negative such parts as the prosecutor can falsify, admitting the truth of the rest.7

Campbell v. People, 8 Wend. 636, 1832; Ingram v. Watkins, 1 Dev. & Bat. 442, 1836; State v. Neal, 42 Mo. 119, 1868; State v. Wakefield, 9 Mo. App. 326; s. c. 73 Mo. 549, 1881; Gabrielsky v. State, supra. Infra, % 1305, 1325.

2 Ibid. Infra, ?? 1301, 1322, 1325. 3 State v. Bishop, 1 Chipm. (Vt.) 120, 1797; Com. v. Knight, 12 Mass. 274, 1815.

4 R. v. Leefe, 2 Camp. 134.

5 Ibid.; Com. v. Lodge, 2 Gratt. 579, 1845; U. S. v. Morgan, Morris, (Iowa) 341, 1844.

Lean, 390, 1844. See supra, ? 1290, and People v. Platt, 67 Cal. 21, 1885.

Infra, 1323; R. v. Whitehouse, 3 Cox C. C. 86; State v. Mumford, 1 Dev. 519, 1828; Maddox v. State, 28 Tex. App. 533, 1890; Ferguson v. Com., (Ky.)1 S. W. Rep. 435, 1886; Thomas v. State, 54 Ark. 584, 1891; Turner v. State, 30 Tex. App. 691, 1892; Com. v. Still, (Ky.) 7 Crim. Law Mag. 407, 1885; Rohrer v. State, 13 Tex. App. 163, 1882. Though see State v. Lindenburg, 13 Tex. 27, 1854.

That a contradictory averment may be a sufficient negative, see Com. v. Sargent, 129 Mass. 115, 1880. See People v. Clements, 107 N. Y. 205, 1887; State v. Clogston, 63 Vt. 215, 1891.

In an indictment for perjury, under the bankrupt law, for not giving a full and true account of the property of the petitioners, the items on the schedule need not be stated in the in- 7 See Whart. Prec. 577 et seq. As dictment. The allegation that the to practice under Texas statute, see property was omitted, with intent to Brown v. State, 9 Tex. App. 171, defraud A. and the other creditors, is 1880; Langford v. State, Ibid. 283, sufficient. U. S. v. Chapman, 3 Mc- 1880.

Several as

§ 1301. All the several particulars, in which the prisoner swore falsely, may be embraced in one count,' and signments proof of the falsity of any one will sustain the count.2

3

may be in

corporated in one

count.

"Belief"

§ 1302. In negativing the defendant's oath, where he has sworn only to his belief, it will be proper to aver either that the defendant did not believe what he swore, must be or that "he well knew" the contrary. Thus, when an negatived. specifically affidavit merely states the belief of the affiant that a larceny has been committed, the assignment of the perjury must negative the words of the affidavit, and it is not sufficient to allege generally that the persons charged did not commit the larceny.* § 1303. The assignment of perjury may, in some instances, be more full than the statement of the defendant which it is intended to contradict. When there is any doubt as to the words of the oath which can be made more clear and precise by a reference to some other matter, it may and must be supplied by an innuendo; the use of which is, by reference to preceding matter, to explain and fix the meaning more precisely but it is not allowed to add to, extend, or change the

1

1 R. v. Callanan, 6 B. & C. 102; 9 D. & R. 97; State v. Bishop, 1 Chipm. 120, 1797; Com. v. Johns, 6 Gray, 274,1856. Infra, ? 1325; supra, ? 1299.

* R. v. Hill, R. & R. 190; R. v. Callanan, 6 B. & C. 102; 9 D. & R. 97; State r. Hascall, 6 N. H. 352, 1833; Com. r. Johns, 6 Gray, 274, 1856; Dodge r. State, 4 Zab. (N. J.) 455, 1854; De Bernie v. State, 19 Ala. 23, 1851. Infra, 1316; Whart. Crim. Ev. 131.

Ambiguities may

be cleared

by innuen

does.

Verrier (or Virrier), 4 P. & D. 161; 12 Ad. & El. 317, a motion to arrest judgment was made on an indictment which alleged that a petition was presented to the House of Commons against the return of B., on the ground of bribery; that, shortly before his election, to wit, on the 6th July, B. & C. went to the house of the defendant to solicit his vote; that, at the time of the petition, it was a material question whether at the time when B.

* Lambert v. People, 76 N. Y. 220, and C. went to the defendant's house, 1879.

'State v. Lea, 3 Ala. 602, 1842; S. P., Com. v. Cook, 1 Rol. Va. 729, 1842. See, as to whether scienter is generally to be averred, Whart. Cr. Pl. & Pr. ? 164. In State v. Lindenburg, 13 Tex. 27, 1854, a mere negation of the belief was held enough, which is sound law; and see supra, 1246.

R. v. Taylor, 1 Camp. 404; R. v. Yates, 12 Cox C. C. 233. In R. v.

a certain act of bribery took place; that the defendant was a witness sworn to speak the truth of and concerning the premises, and he deposed touching the election and the matter of the petition, that, shortly before B.'s election, B. and C. came on a canvassing visit to the defendant's house, and that the act of bribery then took place (innuendo), thereby meaning that at the time when B. and C. went to the defendant's house as aforesaid, the act