may be as offensive in the eye of Heaven as the most solemn oath taken in a court of justice. But there are many offenses against morality and religion which are not cognizable in courts of justice. For such offense a man is answerable only to his God, and not to the laws of his country. And our duty is to determine what the law considers a public offense, and not to declare what ought to be so considered.

There is no offense the general character of which is better understood than that of perjury; and no point better settled perhaps than that the oath must relate to some fact material to the issue. When I say it must relate to some fact material to the issue, I do not mean that the particular fact sworn to must be immediately material to the issue, but it must have such a direct and immediate connection with a material fact as to give weight to the testimony to that point. As where it became material to identify a flock of sheep, and witness was asked how he knew the sheep in question to belong to a particular individual, he said because they were in his mark. Now, although they were not in his mark, and although the mark was immaterial, yet as that was the medium through which the witness arrived at his knowledge of the important question, it had a direct tendency to strengthen his testimony, and was therefore material. So in the present case, if the defendant's situation had given him a better opportunity of becoming acquainted with the material point in the case, testimony to that fact might have been considered material. Thus, if the question had been whether Carter had made a good crop that year or whether his overseer had done his duty, his testimony to those points might have been strengthened by the fact of having lived near him; because it furnished him with the means of knowing with more certainty the truth of these facts.

But it is not so with the case now under consideration. The material fact was whether Carter actually sold the cow to Shackleford. If the defendant lived a hundred miles off and was present at the sale he was a competent witness to prove it. If he lived within fifty yards and was not present, he could know nothing of the matter. It was not a fact of such a nature as to be better known to him, in consequence of the contiguity of residence. It may sometimes be difficult to determine how far the evidence of a particular fact may go to strengthen the testimony of a witness, to a more material point in a case; and perhaps no precise and definite rule can be laid down on the subject. In all cases, therefore, so highly penal, when the question is of a doubtful character, I should incline to favor the side of the accused. In the case now under consideration I can not conceive that the testimony was either directly or indirectly material to the issue. I am of opinion, therefore, that a new trial ought to be granted.

There were several other grounds taken in the case, which it is unnecessary to consider.

COLCOCK, JOHNSON, RICHARDSON and GANTT, JJ., concurred.

PERJURY-STATEMENT MUST BE MATERIAL.

HEMBREE V. STATE.

[52 Ga. 242.]

In the Supreme Court of Georgia.

Perjury-Statement Must be Material. — Where, in an indictment for perjury, it was alleged that the defendant, during a judicial proceeding, etc., had falsely sworn to certain statements, and then immediately followed an allegation that certain of such statements were untrue, and there was no allegation that the statements, thus alone denied to be true, had been material to the issue on trial, nor did they of themselves appear to have been material: held, that the indictment was demurrable, and should have been quashed.

George Hembree, was placed on trial for the offense of perjury, upon the following indictment:

"The grand jurors, selected, chosen and sworn for the county of Milton, to wit:

"In the name and behalf of the citizens of Georgia, charge and accuse George Hembree, of the county and State aforesaid, with the offense of perjury. For that the said George Hembree, in said county, on the 23d day of August, 1871, wickedly and maliciously intending to aggrieve one Martha Goen, and put her, the said Martha Goen, to great expense, and to bring upon her, the said Martha Goen, great disgrace, and also to cause her, the said Martha Goen, to suffer the penalty of the law consequent upon a conviction of the offense of living with one William Martin, a male person of color, in a state of fornication, a bill of indictment for which offense being then and there submitted to the grand jury of said county, said superior court being then and there in session, charging said Martha Goen and William Martin with living together in a state of fornication, said Martha Goen being then and there a white female; the said George Hembree, on the day and year aforesaid, in the county aforesaid, and in proper person before said grand jury, one Martin J. Seall, then and there being foreman of said grand jury, and in due form of law, was sworn and took his corporal oath upon the Bible concerning the truth of the testimony he

should then and there give said grand jury, as to the truth of the charge in said bill of indictment then and there contained, said foreman of said grand jury then and there being legal and competent authority to administer said oath to the said George Hembree for said purposes. The said George Hembree being then and there so sworn, as aforesaid, then and there upon his oath aforesaid, before the said grand jury (said grand jury then and there having competent authority to administer said oath and to hear said evidence in that behalf), willfully, knowingly, absolutely, falsely, in his testimony, did then and there swear, among other things, in substance and to the effect following, to wit: 'I went to Mrs. Martin's to get some soap; as I went, I saw James Martin in the field plowing; I went to him; as I went I saw Mrs. Goen going a round-about way towards Bill Martin. I thought something was going to happen, and I got up on the fence, and saw them meet in the plum orchard. Mrs. Goen lay down and pulled up her clothes; Bill then got on her. I then left the fence and went to the house; Mrs. Goen then came to the house; I know it was her I saw.' Whereas, in truth and in fact, the said Martha Goen did not then and there go to said plum orchard, nor meet one Bill Martin, as aforesaid, and so the jurors, upon their oaths aforesaid, do say that the said George Hembree, on said 23d day of August, 1871, in the county aforesaid (the said grand jury then and there having such competent authority to administer said oath as aforesaid), by his own act and consent, and after his own wicked and corrupt mind, in manner and form aforesaid, willfully, knowingly, absolutely and falsely, did commit the offense of perjury, contrary," etc.

The defendant demurred to the indictment. The demurrer was overruled and the defendant excepted.

MCCAY, J. It is the settled rule that the indictment in a charge of perjury must show that the thing falsely sworn to was material to the issue on trial.1 Under our statute, perhaps, it is sufficient if this appear from the words themselves, as set out, though there be no allegation that they were material. In this case were the whole of the words negatived; were it charged that all the words spoken were untrue, the words might be taken to be material, on their face, to the issue as described in the bill of indictment, for though they assert only one act, they would be material, with other acts, to make out the charge of living in fornication.

Bnt, singularly enough, the indictment does not negative the principal statement, and by selecting the others and negativing them, the inference is open that the principal statement is true. It may have been

13 Greenl. Ev. 189.

2 Code, secs. 4628, 4629.

material to show that the woman charged did go to that particular field that day, and meet the man she is charged to have been living with in a state of fornication, but it is not apparent, by the words themselves, that they were material. Whilst we are no friends of technical rules, there are yet limits, especially in criminal cases, beyond which it is not safe to go, and we think it must always be alleged that the words sworn were material, or they must in the nature of them, show their own materiality. That is one of the statutory ingredients of the crime, and it can no more be dispensed with than the allegation that the words were false.

Judgment reversed.

PERJURY-SENDING FALSE AFFIDAVIT TO PENSION OFFICE — MA

TERIALITY.

UNITED STATES v. Corbin.

[11 Fed. Rep. 238.]

In the United States Circuit Court, New Hampshire, 1882.

An Indictment for sending a False and fraudulent affidavit to the pension office must show that the false facts which it contained were material.

CLARK, D. J. The respondent was indicted under the statute of March 3, 1823,1 for sending a false writing and affidavit to the pension office. He was found guilty by the jury, and now moves for a new trial for various rulings of the court; and for arrest of judgment for certain faults and defects in the indictment.

Before examining carefully the reasons for a new trial, the court has turned its attention to the motion in arrest of judgment; because, if the indictment be so deficient or insufficient that no judgment ought to be rendered upon it, a new trial would be of no avail to the government. And so, if it be found that all the rulings of the court upon the trial were right, and there was no occasion for a new trial, and yet the indictment was fatally faulty, the judgment would have to be arrested. Is, then, this indictment sufficient in its allegations, and are they well and correctly stated? The respondent says it is not sufficient, nor is the pleading good: (1) Because it is double, containing or including two distinct offenses in one count, to wit, that he (the respondent) transmitted to the pension office a certain writing and affidavit — two distinct documents; (2) that it (the indictment) does not definitely

1 3 Stats., p. 771, sec. 1.

66

and specifically allege or assign the particular statements in the writing and affidavit believed to be false, and traverse the same, or alleged that they were false; and (3) that it charges no act which is a crime or misdemeanor by the laws of the United States; (4) the act of March 3, 1823,1 provides that if any person or persons shall falsely make, alter, forge, or counterfeit," or shall transmit to or present at, or cause or procure to be transmitted to or presented at, any office or officer of the government of the United States, any deed, power of attorney, order, certificate, receipt or other writing, in support of or in relation to any account or claim, with intent to defraud the United States, knowing the same to be false, altered, forged or counterfeited, every such person shall be deemed and adjudged guilty of felony.

The indictment, after reciting that one Shedd had a claim against the United States, and that the respondent was intending and contriving to defraud the United States, and to induce them to pay the claim of Shedd, alleges that the respondent "did transmit, and cause and procure to be transmitted, to the office of the commissioner of pensions," to wit, to the office of the commissioner of pensions of the United States, a certain writing and affidavit purporting to be made, subscribed and sworn to by one Adolphus Hall, and by one Jacob Litchfield, both of Grantham, in said district, in which writing and affidavit it was alleged and declared as follows. It then sets out the affidavit in hæc verba. Then it proceeds: "The said Austin Corbin then and there, well knowing the said writing and affidavit to be false and untrue, and then and there well knowing the statements contained in said writing and affidavit to be untrue and false, then and there did willingly transmit to, and did cause and procure to be transmitted to, the office of the said commissioner of pensions the said false writing and affidavit," etc. Grounding himself upon this expression of "writing and affidavit," the respondent supports his first objection because he says the pleading is double; that he is accused of two crimes in the same count that of sending a false writing, and of sending a false affidavit to the pension offiee. If this were so, we are inclined to the opinion that the objection would be of more serious import. Two crimes can not be charged in the same count, and judgment will be arrested for such defective pleading.2 But we are of the opinion such is not the case here.

The expression "writing and affidavit " may mean two documents, or it may mean one- a writing called or known as an affidavit. Standing alone it might be ambiguous; but where the writing and affidavit is

13 Stats., p. 771, sec. 1.

2 State v. Nelson, 8 N. H. 163; Morse v. Eaton, 23 N. H. 415.