The affidavit of defendant stated that "he knows from personal observation, that the said John Stanley did, on the 14th day of March, 1854, enter into a dwelling-house with his family, consisting of himself and wife and two children, which the said John Stanley previously caused to be erected on the above described quarter section of land, and that he, the said Stanley, continues to make said house his only home."

After the affidavit was drawn up, the defendant stated that he did not feel free to swear to it. And he then observed that when he first saw the house, it was a pen, there being no roof on it; that his brother cut out the door and covered the house on the 14th, but he did not say who built the pen. After the statement of the above facts, the defendmake the affidavit on the advice of a connection of his who was present, and who was a lawyer, believing that it contained the facts substantially as stated by him.

ant was induced to

Some nine or ten persons proved the good character of the defendant, and that his standing was as fair and unexceptionable, as any other person of his own age in that part of the county where he lived.

The court, in their charge to the jury, said there could be no doubt that John Stanley was guilty of a trespass in entering into the partly built cabin, and that he could not have procured the pre-emptive right to the quarter section, had Majors claimed it, and had all the facts been represented to the Register and Receiver of the Land Office. Majors was entitled to the possession of the improvement, so far as it was made by him. But he relinquished his right, as appears from the testimony, and settled upon another quarter in the neighborhood. This abandonment left John Stanley in possession of the improvement, and he made the house habitable by cutting out the door and putting a roof on it.

But the inquiry for the jury is not as to this particular matter, but whether the defendant was guilty of willful and corrupt perjury. It does not appear that he had any knowledge who had constructed the pen of the cabin, but he knew that his brother had cut the door and put on the roof. And he objected to swearing to the written affidavit, it appears, until his friends, and especially the lawyer, who was a connection of his, advised him to swear to it, as it embraced only the facts substantially as stated by him. If you believe, gentlemen, that he yielded to this influence in swearing to the paper, and that in his repeated relations he gave a true statement of the facts as they transpired, according to his knowledge of them, he is not guilty of perjury. To constitute perjury there must be a willful and corrupt statement of a falsehood, material to the matter in hand. You are to determine the facts in the case, and judge of the guilt of the defendant. He has shown an excellent character, and this, under the circumstances, and indeed under all

circumstances where the evidence of guilt is not clear, will receive due consideration by a jury.

Verdict of not guilty.

PERJURY-SWEARING TO OPINION WITHOUT REASONABLE CAUSE.

COMMONWEALTH V. BRADY.

[5 Gray, 78.]

In the Supreme Judicial Court of Massachusetts, 1855.

Falsely Swearing to a Fact to the best of the opinion of the witness, which the witness, though without any reasonable cause, believes to be true, is not perjury.

Indictment for perjury by falsely, maliciously, and willfully testifying, at the trial of William P. Hood, on a complaint for maliciously burning a ship on the stocks, that, soon after the ship was on fire, Brady saw a person come out of the ship and run away, who, to the best of his opinion, was said Hood. Trial in the Court of Common Pleas before SAWYER, J., who signed a bill of exceptions, one point in which was thus stated:

"From the evidence in the case, the defendant's counsel argued to the jury that the testimony showed that at the time and place and under the circumstances testified to by the defendant, as set forth in the indictment, the defendant did see either a person who was William P. Hood, or one whom he then and there had reason to believe to be, and whom he honestly did believe to be William P. Hood; and thereupon he requested the court to instruct the jury that if they found that the defendant did see any one at the time and place and under the circumstances testified to by him, as set forth in the indictment, and, in fact, it was not William P. Hood, then the government must satisfy the jury beyond a reasonable doubt, that the defendant, at the time of giving his testimony, well knew that such person was not William P. Hood, or that he did not honestly believe it to have been William C. Hood.

"The court declined so to rule, but did instruct the jury, in relation to his branch of the case, that if they were satisfied upon the evidence, beyond a reasonable doubt, that the defendant did give the testimony as charged in the indictment, and that he did not, in fact, see William P. Hood, and that if, in giving such testimony, he either knew that he did not see William P. Hood, or rashly swore in this respect to what he had no reasonable or probable cause to believe to be true, they should find him guilty."

W. H. L. Smith, for the defendant, cited United States v. Shellmire,1 State v. Cockran,2 State v. Lea,3 Commonwealth v. Cook.4

L. F. Brigham, District-Attorney, for the Commonwealth, cited Commonwealth v. Cornish.5

DEWEY, J. To constitute perjury, there must be a willful false oath, and, as is usually stated in the elementary books, the party must swear absolutely in a matter material to the point in question.

In the present case, the party testifying swore positively to the fact of seeing some one come out of the ship, after the ship was on fire; but who that person was is stated in no stronger language than that "to the best of the opinion of the witness," it was William P. Hood. In regard to the latter statement of the witness, we think that the rule stated by the presiding judge at the trial was not sufficiently favorable to the defendant. However proper it may have been as to a matter of fact to which the witness had testified absolutely, yet it would be too stringent a rule to apply to a matter of opinion. A party is not to be convicted of perjury because, in the opinion of the jury, he had no reasonable cause for the opinion he expressed. If, in his own mode of reasoning upon the facts occurring before him, he thought the person who left the ship was William P. Hood, though he might reason very poorly, and upon data which the jury might think very unsatisfactory, yet his testimony would not be willfully false.

We do not mean to impugn the doctrine, that a person may be indicted for perjury in swearing that he believed a fact to be true which he must have known to be false, but confine ourselves to the precise case before us.

Verdict set aside.

PERJURY-RASH AND RECKLESS STATEMENTS-AFFIDAVIT.

UNITED STATES v. MOORE.

[2 Lowell, 232.]

In the United States Circuit Court, District of Massachusetts, 1875.

1. To Constitute Perjury there must be some fact falsely stated with knowledge of its falsity.

2. On an Indictment for Perjury the jury were told that "they must be satisfied that the defendant swore to a declaration which he at the time knew to be false; and that may be either by swearing to a fact which he knew is not true, or by swearing to his knowledge of the fact when he knew he had no such knowledge." Held, error.

1 Bald. 378.

2 1 Bailey, 50.

3 3 Ala. 602.

41 Rob. (Va.) 729.

56 Binn. 249; 3 Greenl. Ev., sec. 174; 2 Chit. Cr. L. 305.

3. Mere Rash and Reckless Statements on oath are not perjury, quære.

4. An Affidavit to a Fact does not per se mean that the affiant had personal knowledge of the fact.

The defendant was indicted for false swearing. It appeared that in order to procure the redemption of a treasury note, he presented a fragment of the note, and made an affidavit to the effect that the note, except the part presented, had been destroyed. The note had never been destroyed, but had been redeemed. Verdict, guilty. Motion for a new trial.

LOWELL, J. I have made up my mind that my instruction to the jury upon one point was not sufficiently full and explicit, and may, perhaps, have misled them, to the injury of the defendant. I charged in the words attributed to Judge SPRAGUE, in United States v. Atkins,1 "that the jury must be satisfied that the defendant swore to a declaration, which at the time, he knew to be false; and that may be either by swearing to a fact which he knows is not true, or by swearing to his knowledge of the fact when he knew he had no such knowledge." There appears to be a much fuller report of the charge in that case, from which, and from an examination of the records of the court, I find that there was but one trial of the action, and that there was a count for perjury and one for false swearing, under the statute of 1823, which is the law on which the second count proceeds in this case, and on which the report in the Law Reporter says the government relied in that case. It seems, therefore, that the authority is fully in point; but by the more ample report of it I find that the learned judge explained his meaning carefully, giving very full examination to the point whether the defendant had intended to state the fact as being within his own knowledge. Even with these explanations, I do not regard the ruling as being precisely accurate, as I will hereafter explain.

There is some difference of opinion in the United States, as to whether perjury, or false swearing in the nature of perjury, can be committed by mere rash and reckless statements on oath; and though my charge, rightly understood, did not authorize the jury to convict the defendant, if the evidence only showed recklessness, yet I am not sure it may not have been understood in that sense. Indeed, I think

my own views were not quite distinct upon the point. Mr. Bishop, in his treatise on Criminal Law,4 says: "Probably the better opinion is that perjury is not committed by any mere reckless swearing to what the witness would, if more cautious, learn to be false; but the oath

11 Sprague, 558.

19 Law Rep. 95.

3 vol. 39, p. 696.

4 (3 ed.), vol. 1, sec. 396.

must be willfully corrupt." In a note, he quotes, as opposed to his own opinion, an extract from a report of the penal code commissioners of New York: "An unqualified statement of what one does not know to be true, is equivalent to a statement of that which one believes to be false." The latter proposition may be nearly true, so far as the effect of the statement on others is concerned, but it is not a sound legal definition of perjury. I agree, rather with Mr. Bishop's opinion, that that there must be some fact falsely stated, with knowledge of its falsity before there can be perjury. It has been held, indeed, by an able and learned court, that rash swearing, without any reasonable or probable cause of belief of the fact sworn to, is perjury.1 That was a case in which the defendant had been wounded in a riot at night, and had sworn to the prosecutor as the person who wounded him. The doctrine was denied to be law, in an able and careful charge to the jury in the Circuit Court of the United States, sitting in the same State 2 It has been virtually denied in this State, in Commonwealth v. Brady,3 where the defendant swore that he saw a man running from a burning building whom he believed to be A. The judge charged in the language of the court in Pennsylvania, and the ruling was set aside. The court, to be sure, put their decision upon the ground that the defendant only swore to his belief; but personal identity is almost always a matter of belief. An affidavit or statement that I saw a certain person does not usually import anything more than that I saw some one whom I believed, and still believe, to be that person. If I saw no one, or if I believed the person to be different from him I have named, it is perjury, but not otherwise. If any material circumstance is falsely stated, such as that the witness was present and heard a certain conversation, it has been held to be perjury if he were not present, though the conversation really occured. In such a case the materiality of the circumstance would be the only question. Granting the materiality of the fact whether it be a statement of knowledge or of information or belief, or a simple statement of a fact, if the witness knows that the fact is not so, or that he has no such information, or no such belief, he is guilty. But if he only swears rashly to his belief of a matter of which he does not profess to have personal knowledge, the jury can not be permitted to decide on the reasonableness of his belief except as tending to show whether he did believe. In short, perjury is always of some matter of fact, and belief may be a fact. In this case the only questions of fact put in issue by the indictment and by the law are: Was the statement false, and did the defendant know it to be false? In this respect it is like the offense of passing a counterfeit note, knowing

1 Com. v. Cornish, 6 Binn. 249.

2 United States v. Shellmire, Bald. 370.

3 5 Gray, 78.

People v. McKinney, 3 Park. C. C. 510.