ness on part of the person suborned. Thus though a party, who is charged with subornation of perjury, knew that the testimony of a witness whom he called would be false, yet if he did not know that the witness would wilfully testify to a fact, knowing it to be false, he cannot be convicted of the crime charged.'

Testimony

§ 1330. In subornation of perjury, the same rules as to materiality of testimony prevail as in perjury. Hence, in trials of this class, a perjured witness, who claims to have been suborned, is not sufficient, without corroboration, to procure the conviction of the alleged suborner.3

4

must be

material.

aver scien

§ 1331. The scienter must be averred; and it must be also averred that the false oath was procured to be used as Indicttestimony in a court having jurisdiction, the defendant ment must knowing that the witness knew he was to swear falsely.5 ter When the scienter is otherwise given, the word "knowingly" is not necessary in an indictment which avers that the defendant "unlawfully, wilfully, wickedly, feloniously, and corruptly did persuade, procure, and suborn" the witness to "commit said perjury in manner and form aforesaid."

996

XII. ATTEMPTS TO SUBORN: DISSUADING WITNESS FROM

APPEARING.

Attempts

§ 1332. Although, in order to constitute the technical offence of subornation, the person cited must actually take the false oath, yet it is plain that attempts, though unsuccessful, to induce a witness to give particular testimony, irrespective of the truth,' even though such witness had not been served

at subornation are

indictable.

nection with litigation, actual or prospective.2

§ 1333. To attempt to prevent, either by persuasion or intimidation, a witness from attending a trial is not merely a condissuading tempt of court," but may be punishable by indictment, irrespective, it is said, of materiality, or of the prior summoning of the witness by subpoena.5

In an indictment against S. for endeavoring to prevent a witness bound over to testify before a grand jury from appearing and testifying, the indictment in the original case, in which the witness was recognized to appear, need not be recited, nor does the guilt or innocence of the respondent depend upon the sufficiency of that indictment, or of the guilt or innocence of the defendant in the first case.'

XIII. FABRICATION OF EVIDENCE.

§ 1334. "Fabricating evidence," it is said by the English Commissioners on the Draft Code of 1879, "is an offence which is not so common as perjury, but which does occur and is sometimes detected. An instance occurred a few years ago on a trial for shooting at a man, with intent to murder him, where the defence

was that though the accused did fire off a pistol, it was not loaded with ball, and the only intent was to frighten. Evidence was given that a pistol-ball was found lodged in the trunk of a tree nearly in the line from where the accused fired to where the prosecutor stood. It was afterward discovered that the ball had been placed in the tree by those concerned in the prosecution, in order to supply the missing link in the evidence. Such an offence is as wicked and dangerous as perjury, but the punishment as a common law offence (if, irrespective of conspiracy, it be an offence) is only fine and imprisonment." In those of our States, where a common law exists, the offence would probably be regarded as indictable at common law.1

1 Supra, & 681.

· POINTS REQUESTED FOR THE DEFENCE IMPROPERLY REFUSED, AND ERRONEOUS CHARGES.

At Time of Making Statements One Must Know Them to be False.

The court, at the instance of the county attorney, instructed the jury to the effect that if the defendant made the alleged false statements and did not know them to be true, he would be guilty. Held error. Gibson v. State, (Tex.) 15 S. W. Rep. 118, 1890. Supra, 1246.

Where the statute in defining the offence of false swearing requires that it be done deliberately and wilfully, it was error for the court to fail to instruct the jury as to the definition of "wilfully," although it did properly instruct them as to "deliberately." Steber v. State, 23 Tex. App. 176, 1887. Supra, 1269.

Circumstantial Evidence Alone Not Sufficient to Convict under Texas Code.

The court instructed the jury that the evidence in the case was all circumstantial evidence, but that they could convict on circumstantial evidence alone. Held to be error under the Texas Code. Kemp v. State, 28 Tex. App. 519, 1890. Supra, 1267.

The defendant requested the court to charge: "If the jury believe from the evidence that W. B. Gilmer served the summons and complaint on defendant after the return-day of said writ, then there was no legal service upon him; and he was not guilty of perjury in affirming that no writ was served on him on said day." Refused. Held error. Urquhart v. State, (Ala.) 16 So. Rep. 17, 1894. Supra, 1272.

The Instructions of the Court must follow the Statutory Definition.

Under the Illinois statute, which defines perjury as wilfully swearing falsely "in a matter material to the issue or point in question," the court instructed the jury, at the instance of the State, that defendant was guilty if he "wilfully testified falsely in a material matter." Held to be misleading and erroneous. Young v. People, 134 Ill. 37, 1890. Supra, & 1276. It was held error under the Criminal Code of Texas to fail to instruct the jury that they could not convict except upon the testimony of two credible witnesses, or of one credible witness corroborated by other evidence as to the falsity of defendant's statements under oath. Grandison v. State, 29 Tex. App. 186, 1890. Supra, 1319.

CHAPTER XXI.

CONSPIRACY.

III. CONSPIRACIES TO USE INDICT-
ABLE MEANS TO EFFECT IN-
DIFFERENT END.