with the general allegation that the defendant did, in manner aforesaid, etc., commit willful and corrupt perjury. By the Court, CLINTON, J. An indictment for perjury must set forth "the substance of the offense," and that the matter sworn to and alleged to have been false, was material, must be shown by the pleading. There can be no materiality in the matter sworn to, unless it was pertinent to some trial or proceeding warranted by law, and the indictment must set forth such trial or proceeding. "A party claiming goods seized under an execution,,made an affidavit stating that he had purchased and paid for them, and was indicted for perjury, but as the indictment did not state that any application had been made for an interpleader rule, it was holden bad, for it did not appear that any proceeding was pending to which the affidavit was applicable. So in other cases when the false oath is made in the course of a suit, the indictment must show that a suit was then depending; if it be preliminary to a suit, and in a matter of which the court has jurisdiction, the indictment must show it."1 Admitting that the notary had jurisdiction to administer the oath, and that defendant is indictable, and indictable in a State court for perjury, in swearing to the protest, still the indictment is clearly bad, because it does not show any pending proceeding to which the protest was applicable, nor that the protest was preliminary to any suit or proceeding. It does not even show that there was any outstanding policy of insurance covering the loss. It avers that Watson, the owner had "before that time" procured an insurance on the vessel, but it does not allege that the insurance was outstanding, nor that Watson had commenced or contemplated an action upon the policy, nor that the protest was made a parcel of the preliminary proofs required by the terms of the policy or by the custom of merchants, nor that it was intended or could be used for any purpose whatever. I might here dismiss this matter, but at the request of the parties I will give my opinion upon other and more important questions involved in this prosecution. Assuming that perjury may be predicate of a "protest," the district attor ney claims that the case falls within our statute of perjury. I do not think so. The general words of that statute must be restrained by general principles of law. The words include all perjuries committed in any territory, and before any tribunal or officer, provided the oath is lawfully required. The cases are very few in which a government punishes crimes committed out of its territorial jurisdiction; and a State never recognizes as a crime a breach of the laws of another State or jurisdiction. We, perforce, leave to the Federal courts the vindication of the laws of the United Statas within our borders, and do not usurp the power to punish perjuries or robberies committed in Ohio. Crime is essentially local, and is defined and punished only by the law of the place where it was committed. The notary public before whom the oath in question was taken, was one duly appointed in pursuance of the laws of this State and acting within its territory. Our statute confers no authority upon a notary to administer an oath. It confers some powers and enumerates others derived from other It declares that "notaries public,” appointed under our law, "have sources. 13 Archb. Cr. L. 593, 594. 1 authority to demand acceptance and payment of foreign bills of exchange," etc., "and to exercise such other powers and duties as by the law of nations, and according to commercial usage, or by the laws of any other State, government, or country, may be performed by notaries public." Now all this is simply declaratory and permissive. A notary public is an officer recognized by the law of nations. That law vests him with certain powers, and his seal is taken notice of by foreign courts. Our statute declares our notaries public to be a notary public within the purview of the law of nations. Other States, governments and countries may, by law vest certain powers in notaries public, in consideration of their public character, and the power of authentication attributed to their seals. A sister State may, for instance, confide to them the power of taking within their theater of action, proofs of conveyances to be recorded, and of instruments and depositions to be used in evidence within its territory. Our law says that our notary may exercise these powers; but they are powers conferred by and exercised by foreign laws. The same remarks apply to the powers and duties which "according to commercial usage may be performed by notaries public. Our law permits our notaries to perform them. By commercial usage, this protest could be made before a notary public, and by the same usage, he could administer the oath and authenticate the protest; but our law did not require the oath, nor was it, under our law, "necessary for the prosecution and defence of any private right, or for the ends of public justice."2 This subdivision of the statute definition of perjury, refers to a class or classes of cases wholly different from this. But if it be comprehensive enough to cover this case, then where is the evidence in the indictment of the existence of any private right or claim to the prosecution or defence of which the sworn protest could be applicable? But such a protest is a purely voluntary act. The master may properly make it for the information of his owners, or the satisfaction of the underwriters, in case of a loss by perils of the sea. He can not, however, be required to make it, nor can the owner "by commercial usage " be required to procure it. If made, it forms a very proper portion of the preliminary proofs of loss. As a voluntary statement, whether sworn to or not, it may be important evidence against the master for the owner, or for the underwriter in the owner's action on the policy, but it is never, under our law, evidence for the owner against the insurers. I am of the opinion that the crime of perjury can not, under our statute, be founded upon such a protest, and the district attorney is advised to enter a nolle prosequi. Motion granted. Texas Statute. - The § 119. Perjury and False Swearing Distinguished difference between perjury and "false swearing" under the Texas code is pointed out in Langford v. State. In this case HURT, J., delivered the following opinion: The appellant was tried and convicted of the offense of false swearing, from which conviction he appeals to this court. The assignment of false swearing is made upon an affidavit sworn to before A. W. Morrow, a justice of the peace for Williamson County, wherein the appellant charges one James Flint with the theft of a mule. The appellant moved to quash the indict 1 2 Rev. Stats., p. 283, secs. 44, 45. 39 Tex. (App.) 283 (1880). ment, setting forth several objections thereto. We shall consider but one, which is as follows, viz: "Because it [the indictment] shows that if any offense has been committed, it is another and different one from that charged in the indictment." The court overruled the motion, to which the appellant excepted. The question presented for our decision is this: By swearing to such an affidavit before the justice, was appellant guilty of false swearing or perjury, the other ingredients being present? The proper solution of this question requires a construction of articles 186, 188, 192, Penal Code. False swearing is defined as follows: "If any person shall, deliberately and willfully, under oath or affirmation legally administered, make a false statement, by a voluntary declaration or affidavit, which is not required by law or made in the course of a judicial proceeding, he is guilty of false swearing." "Perjury is a false statement, either written or verbal, deliberately and willfully made, relating to something past or present, under the sanction of an oath, or such affirmation as is by law equivalent to an oath, when such oath or affirmation is legally administered under circumstances in which an oath or affirmation is required by law, or is necessary for the prosecution or defence of any private right, or for the ends of public justice." 192 “All oaths or affirmations legally taken, in any stage of a judicial proceeding, civil or criminal, in or out of court, or before a grand jury, are included in the description of this offense." 3 We will see by examining article 196 that if the statement is made in the course of a judicial proceeding it can not be "false swearing." On the other hand, by article 188, if the false statement under oath or affirmation is necessary for the ends of public justice, perjury, and not false swearing, is the offense. At what stage of a judicial proceeding must the false statement be made? At any. Where must it be made? "In or out of court."5 It follows that if the false statement is made under oath, legally administered, under circumstances which make it necessary for the ends of public justice, or at any stage of a judicial proceeding, in or out of court, the making of such statement (the other elements attending) would be perjury. The second chapter of the Code of Criminal Procedure makes full and complete provisions for this affidavit. In law it is called a "complaint." The magistrates are authorized to issue their warrants upon the making of the complaint. Unless in cases specially provided for otherwise by the code, the magistrate must base his warrant upon the complaint. It is the very basis of the prosecution in a great many cases. Without it there can be no proceeding, except through the grand jury. (We allude to the criminal proceedings.) Suppose this complaint is filed before the county attorney, and upon it an information is presented; suppose, further, that the complaint is quashed — what will be the fate of the information? Or, to carry the supposition further, suppose a conviction is had upon the information, and the defendant moves in arrest of judgment, upon the ground that the complaint is defective. The judg ment, conviction, information, and complaint-in fact, the whole proceeding-dissolves and crumbles to pieces. Is this a "judicial proceeding? Most clearly it is. Nor does it matter at what stage the statement is made, the beginning, intermediate, or end, whether taken in or out of court. It follows, from article 196, that if it be a judicial proceeding it is not false swearing. At common law perjury was "the willful false oath by one who, being lawfully required to depose the truth in any proceeding in a court of justice, swears absolutely in a matter of some consequence to the point in question, whether he be believed or not." It may be contended, as is stated by Mr. Archbold, that, to constitute perjury, “the judicial proceeding must be pending in court at the time the oath was taken and the false statement made." But we believe that our Penal Code, in articles 188, 192, meets that very objection. Article 192 provides that if the oath is taken "in any stage" of the proceeding, "in or out of court," the offense is perjury. This, to our minds, concludes the question. But let us view it in another light. We find that if the oath is necessary for or to the ends of public justice, then it would be perjury. If Mr. Flint had stolen the mule, public justice demanded that he should be prosecuted. The whole people of this State had an interest in his prosecution. In order, then, that the ends of public justice might be attained by the punishment of the guilty, the law required this complaint to be made and sworn to. This is the beginning of the prosecution, to the end that public justice may be had in the premises. Again: If the oath is required by law, or, to use the language of the Code, "under circumstances in which an oath is required by law," then it would be perjury. A. desires to prosecute B. for theft-a felony. The grand jury is not in session. What must he do? The law requires that he make a complaint before a proper officer, in writing, charging B. with the theft? Before the officer can legally issue his writ for the arrest of B., the law requires that the complaint shall be sworn to. Hence we conclude that the affidavit, or complaint, upon which the false swearing was assigned was required by law. The oath was taken, then, "under circumstances required by law." We are not to understand that the law must require the defendant, or any particular individual, to make the oath; but if the law requires such an instrument to be sworn to (before it can have a legal standing) by any person, then, if taken, it would be under circumstances required by law. We conclude, therefore, that the court below erred in overruling appellant's motion to quash. The State proved by the witness Flint, over objection of appellant, the declarations of appellant's wife, as follows: "I asked Mrs. Langford for the bill of sale. She at first refused to give it to me; said the mule was her property, and that defendant told her there was $10 due on the mule, and she would not let me have the bill of sale unless I promised to pay her the $10. I told her I traded for the mule, but agreed to pay her the $10 she claimed, and she gave me the bill of sale which is here shown to me." The bill of sale was introduced in evidence, without proof of execution by appellant. We are at a loss to know upon what principles of the law of evidence the statements, either of Mrs. Langford or of the witness Flint, could be legal evidence against appellant, he not being present. Before a jury they were calculated to, and no doubt did prejudice his case. We think the bill of sale should have been shown to have been executed by appellant, before admitting it in evidence. For the above errors the case is reversed and remanded. Reversed and remanded. 13 Archb. Cr. Pr. & Pl. 593-612. count they made several objections: first, upon the evidence that this disproof of the debt of the petitioning creditor rendered all the proceedings null; next, upon the defect of averments, that it was not averred that there was any petitioning creditor's debt; that it was not averred that any act of bankruptcy had been committed; that it was not averred to be material that the date of the execution of the deeds should have been truly stated by the defendant; and that, inasmuch as the whole transaction with James Prichard was concocted in fraud, the deeds would not have been more operative if dated the 4th of July than as they were dated the 4th of September. And lastly, that there was not a substantive averment that any such deeds were in existence. The jury found the defendant guilty, and the learned judge reserved all the points for the consideration of the judges. The following cases were referred to in the course of the argument: Rex v. Punshon,1 Rex v. Rapael,2 Rex v. Jones,3 Rex v. Walton. This case was argued in Michaelmas term, 1841, before all the judges, except BOSANQUET, J., ALDERSON, B., and PATTESON, J. M. D. Hill, for the prisoner. Upon the first objection the prisoner is entitled to an acquittal. The fact was proved that there was no good petitioning creditor's debt. The commission was therefore bad, and the commissioner had no authority to administer the oath. It is true that, by 6 George IV.,5 this commission might have been established by an order of the Lord Chancellor substituting a good petitioning creditor; but no such order has been made, and the commission must be deemed void as to the adjudication, and all acts subsequent to it. . LORD ABINGER. You say the adjudication was all wrong, therefore all subsequent proceedings are bad. The power to substitute a good petitioning creditor's debt shows that the Legislature intended it void without such an order. Hill then cited Muskett v. Drummond, when he was stopped by Lord DENMAN, C. J., and the conviction was held bad. § 126. Grand Jury Without Jurisdiction. So where a grand jury had no power to inquire whether an officer had been guilty of taking illegal fees, a false oath taken in the cause of such inquiry was not perjury.7 8 § 127. Court must have Jurisdiction-Extra-Judicial Trial by Reason of death of Party. In R. v. Cohen, a co-plaintiff had died after issue joined and her death had not been suggested. The trial went on and C. swore falsely to a material allegation. It was held that the trial being extra-judicial, C. could not be guilty of perjury. $128. Perjury-Authority to Administer Oath.- Where an order of court authorizes clerks to administer oaths to residents of their respective counties, a conviction for perjury can not be sustained where the affidavit was made before the clerk of a county other than the one in which the accused resided. A false oath made before the clerk of the Circuit Court by a witness, 13 Camp. 96. 2 Not reported, but mentioned in Manning's Nisi Prius Index, 32; Burn's Justice, 357. 34 B. & Ad. 345. 45 C. & P. 338. 5 Ch. 118, sec. 18. 10 B. & C. 153. 7 Pankey v. People, 2 Ill. 80 (1883). 8 1 Stark. 511 (1816). U. S. v. Deming, 4 McLean, 3. |