(580) In justifying to bail for a party after indictment found, &c. (581) In giving evidence on the trial of an issue on an indictment for perjury. (582) On a trial in the Supreme Judicial Court of Massachusetts, on a civil action. (583) For perjury committed in an examination before a commissioner of bankrupts. (584) Against an insolvent in New York, for a false return of his creditors and (585) Against an insolvent in Pennsylvania, for a false account of his estate. (587) In charging J. K. with larceny before a justice of the peace. (588) In charging A. N. with assault and battery before a justice. (589) In false swearing by a person offering to vote, as to his qualifications when challenged. (590) In an affidavit to hold to bail, in falsely swearing to a debt. (591) False swearing to an affidavit in a civil cause in which the defendant swore that the arrest was illegal, &c. The perjury in this case is for swearing to what the defendant did not know to be true. (592) Perjury, in an answer sworn to before a master in chancery. (593) Perjury before a grand jury. (594) In answer to interrogatories exhibited in chancery. (595) Committed at a writ of trial. (596) Falsely charging the prosecutor with bestiality at a hearing before a justice of the peace. (597) Subornation of perjury in a prosecution for fornication, &c. (598) Subornation of perjury, on a trial for robbery, where the prisoner set up an alibi. (599) Subornation of perjury in an action of trespass. (600) Corruptly endeavoring to influence a witness in the U. S. Courts. (601) Endeavoring to entice a witness to withdraw himself from the prosecu tion of a felon. (602) Persuading a witness not to give evidence against a person charged with an offence before the grand jury. (603) Inducing a witness to withhold his evidence as to the execution of a (604) Endeavoring to suborn a person to give evidence on the trial of an (606) Soliciting a witness to disobey a subpoena to give evidence before the Ohio. (Analysis of Perjury in Wh. C. L.) Perjury, § 2195. Subornation of perjury, § 2196. B. PERJURY AT COMMON LAW. I. Wilful, § 2199. II. False, § 2201. III. Oath, § 2205. IV. By one, § 2208. V. In a competent court, § 2211. VI. In any judicial proceeding, § 2221. VII. In a matter material, § 2228. VIII. Indictment, § 2233. 1st. Wilful, § 2234. 2d. Sworn before a competent jurisdiction, § 2236. 3d. In a judicial proceeding, § 2248. 4th. How and to what extent the alleged false matter is to be set out, § 2253. 5th. How the false matter is to be negatived, § 2259. 6th. Materiality, § 2263. IX. Evidence, § 2266. X. Subornation of perjury, § 2283. (577) General frame of indictment. Perjury in swearing an alibi for a felon.(a) THAT at the court, &c. (setting forth the style of the court), (b) before, &c. (stating the members of the court), one G. B. was in due form of law tried (a) Stark. C. P. 459. (b) The object of this part of the indictment, as is stated by Mr. Chitty, on whose authority (2 Chit. C. L. 307) a large portion of the following notes rests, is to render the assignments of perjury intelligible, where they would otherwise require explanation. It is not safe, however, to go beyond what is actually essential for the purpose. Thus, it is unnecessary to set out the continuances of the former prosecution, 1 Leach 201, or to state out of what office process issued, in case of perjury, on a bill of Middlesex, though, if a wrong office be stated, the indictmemnt would be defective, Peake N. P. 112; Cro. C. C. 339, 356; and whereas a complaint was made ore tenus, by solicitor to the Court of Chancery, of an arrest in returning home after the hearing of a cause, it was holden sufficient to state, that "at and upon the hearing of the said complaint the defendant swore," &c., and there was no occasion for any positive averment of the hearing of the application; 1. T. R. 74. The usual and most regular course is to aver that a certain cause had arisen, and was depending, and came on to be tried in due form of law, or that at such a court I. K. was in due form of law tried on a certain indictment then and there depending against him for murder, and that the perjury was committed on the trial either of the civil or criminal proceeding; 5 T. R. 318; Cro. C. C. 7th ed. 612, n. a. A variance in setting out this matter of inducement would be fatal, if the matter stated could not be rejected as surplusage. A clerical error will be no variance; 5 T. R. 311; 2 Campb. 139; 1 Leach 192; 1 Campb. 404; 1 Esp. R. 97; 9 East 137; Ld. Raym. 701; 13 East 547; see Wh. C. L. § 606-9, 2253. But where the indictment purported to set out the substance and effect of the bill, and stated an agreement between the prosecutor and defendant respecting houses, and upon the bill being read, the word house was in the singular number, the variance was held fatal; 1 R. & M. 98. So, an omission to charge in the bill of indictment, that the matter of traverse tried between the State of Tennessee and D., touching which the defendant gave his evidence, was by indictment or presentment, is fatal; Steinson v. State, 6 Yerg. 531. It is not necessary that it should appear whether the witness was compelled to attend court by subpoena, or whether he attended voluntarily; nor whether the false testimony was given in answer to a specific question put to him, or in the course of his own relation of facts; but it is sufficient if it be averred that an issue was duly joined in court, and came on to be tried in due course of law; and that the court had competent authority to administer the oath, without an express averment that the court had jurisdiction of the cause of action; 1 Chip. Verm. R. 120; Com. v. Knight, 12 Mass. 274; see Wh. C. L. § 351, 2253. Any essential variance in the statement of the circumstances attending the administering the oath is fatal, State v. Street, 1 Murph. 156; Leach 150, 3d ed. 179; State v. Hardwick, 2 Mo. 185; 14 East 218, n. a., and see 3 Stark. on Evid. 1136, where the indictment alleged that the cause came on to be tried before Lloyd, Lord Kenyon, &c., William Jones being associated, &c., and from the judgment roll it appeared that Roger Kenyon was associated, &c. ; the variance was held fatal, 1 Esq. R. 97. Where in an indictment for perjury in an answer to a bill of chancery, the bill was described as exhibited against three persons only, when in fact it was against four, it was held that this was no variance; 1 R. & M. 101. Where an indictment, in setting out the record of a conviction, stated an adjournment to have been made by Const, Esq., and A. B. C. and D., and others their fellows, &c., justices, and an examined copy of the record of conviction, when produced, stated the adjournment to have been made by Const, Esq., and E. F. G. and others, &c., the variance was held fatal, unless the defect was supplied by evidence of an adjournment made by the persons stated in the indictment; 1 R. & M. 171. Where it becomes necessary, in charging the commission of the offence, to allege that a certain term of a county court was duly holden, it is not sufficient that it was holden by and before the chief judge of such court, without mention of any assistant judges. If either of the judges is named, it should appear that at least a quorum of the court held the term; State v. Freeman, 15 Verm. 723; see Resp. v. Newell, 3 Yeates 407. Where the indictment alleged a bill of discovery filed in the Exchequer (in the answer to which perjury was assigned), to have been filed on a day specified, viz., first of December, 1807, and it appeared on the production of the bill to have been filed in the preceding Michaelmas term, according to the practice of the court, where a bill is filed in vacation, it was held that the variance was immaterial, the day not having been alleged as part of the document, 1 Stark. R. 521; and where the perjury was assigned in answer to a bill alleged to have been filed upon a certain indictment then and there depending against him, for having on the twentieth day of July, in, &c., feloniously stolen, taken, and carried away in a particular term, and a copy produced was of a bill amended in a subsequent term by order of the court, it was held to be no variance, the amended bill being part of the original bill; 3 Stark. on Evid. 1138. Where the bill was alleged to have been filed by Francis Cavendish Aberdeen, and others, and on the production of the bill it purported to have been filed by J. C. Aberdeen, and others, the variance was held to be immaterial, evidence being given that Francis Cavendish Aberdeen, and the other persons named, did in fact file the bill, although it was objected that it ought to have been averred in the indictment, that Francis Cavendish Aberdeen, &c., filed their bill by the name of J. C. Aberdeen, &c., and although, after setting out the material parts of the bill, the words were added, "as appears by the said bill, filed of record;" 1 Stark. 518; 3 T. R. 601; 2 Campb. 139. In another case the indictment charged the alleged false evidence as given in the Palace Court, described the court as "the Court of the King's Palace, at Westminster," and it appeared from the record of the trial below, that it was called "the Court of the King's Palace of Westminster," it was held no variance; 3 D. & R. 234. So where it was averred that the cause in which the alleged perjury was committed, "came on to be tried, and was then and there duly tried by a jury of the county," and the record of the trial stated that the jury came of the neighborhood of Westminster, it was held, that the cause was in fact so tried, and no county being mentioned in the record, it was no objection; ib. It has been held, that though there be two counts in the original proceeding, yet an averment that an issue came on to be tried will be no variance; Peake's R. 37; see Wh. C. L. § 606, 2236, 2248. In an indictment for perjury in taking a false oath before a regimental court of inquiry, the indictment ought to set forth of what number of officers the said court of inquiry consisted, and what was their respective rank, so as to enable the court to discern whether the said court of inquiry was constituted according to law; Com. v. Conner, 2 Va. Cases 30. Where an indictment charged the defendant with perjury in "a matter of traverse then and there tried, between the State of Tennessee and D., for an assault and battery," it was held that this was not a sufficient charge of the jurisdiction of the court before which the case was tried; Steinson v. State, 6 Yerg. 531. Even if the plaintiff offer himself as a witness, is sworn, and testifies falsely, perjury may be assigned on the oath thus taken, though he was incompetent as a witness, provided the justice had jurisdiction of the subject matter; Montgomery v. State, Wilcox 220. Where the defendant is indicted for perjury, committed on the trial of an issue in a former indictment, the indictment must set forth the finding of the former indictment in the proper court of the proper county, and should also set forth that indictment, or so much thereof as to show that it charged an offence in that county, and of which said court had recognizance, and also the traverse or plea of defendant in that indictment, whereon the issue was joined. Judgment on an indictment, defective in these particulars must be arrested; State v. Gallimore, 2 Iredell 374. On a conviction for perjury in Rutherford County, North Carolina, two reasons were assigned in arrest of judgment; 1st. That the indictment did not charge that the oath was taken in Rutherford County; 2d. Nor that the evidence was given to the court and jury, but to the jury only. The first reason was overruled, the indictment charging that "he, the said A. B. on the 16th of April, in the year aforesaid, in the county aforesaid, came before the said C. D., judge as aforesaid, and then and there, before the said C. D., did take his corporal oath." The part of the indictment immediately preceding stated that C. D. held the court as judge at that term in Rutherford County; the same county was inserted in the caption of the indictment, and there was none other mentioned in any part of it; the words "then and there," refer to the 16th of April and to the County of Rutherford. The second reason was overruled, as the indictment charged that the oath was taken before the judge, and the evidence was thereupon given to the jurors. This, it was held, was the proper way of stating the oath; State v. Witherow, 3 Murph. 153. Where the indictment alleged the false oath to have been taken before the board of inspectors, &c. (they being qualified to administer it), it is a sufficient averment of the fact that the oath was administered by the board; Campbell v. People, 8 Wend. 636. Where perjury was charged to have been committed in that which was in effect an interpleader rule, and the indictment set out the circumstances of the 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; it was held, that the indictment was bad, as the afidavit did not appear to have been made in a judicial proceeding; R. v. Bishop, 1 C. affidavit on an &M. 302; see Wh C. L. § 2248. nineteen dollars of the moneys of one J. E., and that at the said trial, so then and there had as aforesaid, J. S., late of laborer, appeared as a witness for and on behalf of the said G. B. upon the said trial, and was sworn and took his corporal oath before the said J. M. and J. S., justices as aforesaid, on the holy gospel of God, to speak the truth, the whole truth and nothing but the truth, of, upon and concerning the matter then depending, (c) (they the said J. M. and J. S., justices as aforesaid, then and there having sufficient and competent power and authority to administer an oath to the said J. S. in that behalf), (d) whereupon it then and there became a material inquiry on the trial of the said issue, whether (here state the several questions); (e) and the said J. S. being so sworn as aforesaid, wickedly contriving and intending to cause the said G. B. unjustly to be acquitted of the said felony, did then and there knowingly, falsely, (f) corruptly, wilfully and (c) It must appear that the defendant was regularly sworn. In case of an affidavit the jurat need not be set out; 9 East 437; nor need the affidavit be stated, or proved to have been affiled in, or exhibited to the court, or in any other manner used by the defendant or others; 7 T. R. 315. It is enough if it be stated that the defendant was in due manner sworn, though he took the oath according to the ceremonies of a particular religion; Peake N. P. 155; 12 Vin. Ab. T. 28; 2 Keb. 314. And if he were sworn twice, first in the usual form, and afterwards after his own method, to state that he was sworn on the holy gospel of God will suffice, though had he been sworn only in the latter way the variance would have been fatal ib.; Cro. C. C. 7; ib. 575, n. c.; see State v. Whisenhunt, 2 Hawks 458. An indictment for perjury, which avers that the defendant did "then and there, in due form of law, take his corporal oath," without stating that he was sworn on the gospels, or by uplifted hand, is sufficiently certain; Res v. Newell, 3 Yeates 407; see State v. Freeman, 15 Verm. 723; Montgomery v. State, Wilcox 220. See Wh. C. L. § 2236. (d) This averment should always appear; Wh. C. L. §. 2236. In an indictment for making a false affidavit, it is sufficient to state, that the defendant came before A. and took his corporal oath (A. having power to administer an oath), without setting out the nature of A.'s authority; Rex v. Callanan, 6 B. & C. 102; see State v. Ludlow, 2 South. R. 772; Campbell v. People, 8 Wend. 638; People v. Phelps, 5 Wend. 10; Rex v. Howard, M. & R. 187; State v. Gallimore, 2 Iredell 372. (e) Materiality must be averred or implied; Wh. C. L. § 2263; 1 T. R. 69; 5 T. R. 318; Comb. 461; Cro. Eliz. 428; Com. R. 43; 8 Ves. 35; 2 Bridgman's Index 395; 2 Ld. Raym. 889; Holt 535; Cro. C. C. 7th ed. 613, n. a.; 1 R. & M. 147; R. v. M'Kernon, 2 Russ. 541; Campbell v. People, 8 Wend. 636; Hinch v. State, 2 Mo. 8; Weathers v. State, 2 Blackf. 279; Com. v. Knight, 12 Mass. R. 274; State v. Hayward, 1 N. & M'C. 547; State v. Hattaway, 2 N. & M'C. 118; State v. Dodd, 2 Murph. 226; Rex v. Nicholl, 1 B. & Ad. 21; 2 Stark. Ev. new ed. 626; State v. Ammons, 2 Murph. 123; though all the circumstances which make such materiality need not be stated, State v. Mumford, 1 Dev. 519; it being only necessary to say that they became and were so; 5 T. R. 318; see Ld. Raym. 889; though it will be proper to state any circumstances to which the assignment of perjury must afterwards refer; 1 T. R. 66. The express allegation of materiality may be properly omitted where the materiality of the question evidently appears on the record, as where the falsehood affects the very circumstances of innocence or guilt, or where the perjury is assigned in documents from the recital of which it is evident that the perjury was important; Campbell v. People, 8 Wend. 638, 639; see Trem. P. C. 139, &c., and 7 T. R. 315; 2 Stark. C. L. 423, n. Perjury may be assigned upon a man's testimony as to the credit of a witness; 2 Salk. 514. So, every question in cross-examination which goes to the witness' credit, is material for this purpose; Reg. v. Overton, 2 Mood. C. C. 263; C. & M. 655. Or he may be perjured in his answer to a bill in equity, though it be in matter not charged by the bill; 5 Mood. 348; semble, 1 Sid. 274, 106; see R. v. Dunston, R. & M. 109; R. v. Yates, C. & M. 132. (f) It must be charged that the defendant falsely swore, &c., 2 M. & S. 385; Wh. C. L. § 401, 2234; and if the same person swears contrary ways at different times, it is necessary to aver on which occasion he swore wilfully, falsely or corruptly; 5 B. & Ad. 926; 1 D. & R. 578, S. C. The English cases tend to the doctrine that the word "wilfully," &c., is not necessary, it being implied from the words, "falsely, maliciously, wickedly and corruptly;" 1 Leach 71; see Rex v. Richards, 7 D. & R. 665; Rex v. Stevens, 5 B. & C. 246. But in this country an indictment charging that the defendant "being a wicked and evil disposed person, and unlawfully and unjustly contriving, &c., deposed," &c., and concluding that the defendant "of his wicked and wickedly say,(g) depose and give in evidence, to the jurors of the jury then and there duly taken and sworn between the said state and the said G. B., corrupt mind did commit wilful and corrupt perjury," is defective even at common law, for not alleging that the defendant wilfully and corruptly swore falsely; State v. Carland, 3 Dev. 114. In another case, however, an indictment which stated that the defendant "did voluntarily and of his own free will and accord, propose to purge himself upon oath of the said contempt," negativing by express averments the truth of the oath, and concluding that the defendant "did knowingly, falsely, wickedly, maliciously and corruptly commit wilful and corrupt perjury," was held good; Res v. Newell, 3 Yeates 407. See Wh. C. L. § 401, 2234. (g) The usual method of introducing the alleged false evidence is, that the defendant did falsely swear or say, &c., as in the text, 1 T. R. 64, or did swear "in substance and to the effect following," 2 Campb. 138; Cro. C. C. 7th ed. 573, n. a., and cases there cited; "or in manner and form following, that is to say," which allow of a greater latitude than "the tenor following," or words requiring a literal recital, People v. Warner, 5 Wend. 271; 1 Leach 192; Trem. P. C. 139; 1 T. R. 64; and then stating the precise words, with innuendoes, or the substance of what was sworn to; a variance, however, in the latter case, which alters the sense, will be fatal; 1 Leach 133. The same rigor as was noticed in another place, Wh. C. L. § 351, 2253, has not been required in this country in the setting forth of the alleged false oath of the defendant, as under the statute of Elizabeth, was considered essential in England. Thus, it is said, that at common law it is only necessary to set out the substance of the oath, and when that is done, an exact recital is not necessary; and accordingly where the article "an" was substituted for the article "the," the variance was held immaterial; People v. Warner, 5 Wend. 271; State v. Ammons, 3 Murph. 123. Where the tenor of an affidavit is undertaken to be recited, and the recital be variant in a word or letter, so as thereby to create a different word, it is fatal. But where a statement of the substance and effect of an affidavit is sufficient, and nothing more is pretended to be done, evidence of the substance and effect is sufficient. Where the charge was in swearing to an affidavit, "to the substance and effect following," a variance which consisted in using the words "suit" instead of "case," was deemed immaterial; State v. Coffee, N. C. Term. R. 272, S. C.; 2 Murph. 320. Marcy J., in People v. Warner, 5 Wend. 271, examines with great fairness the degree of particularity necessary in setting forth the words. "If the public prosecutor," he said, "was bound to set forth with literal and perfect accuracy, the objection was well taken. Even if he has needlessly undertaken to state it in hæc verba, there are not wanting authorities, which declare that a failure in the slightest degree, in half a letter, to use a hyperbolical expression of Lord Mansfield, will be fatal. "It was scarcely contended, on the argument, that it was absolutely necessary to set forth the oath in its exact words. The rule on this subject seems to be, that written instruments, where they form a part of the gist of the offence charged, must be set forth verbatim. In the case of forgery, the spurious instrument must be set forth in its very words and figures; Arch. C. P. 23; 1 East 180; Leach 721; but in perjury the rule is different. It is not necessary,' says Mr. Archbold, 'to set forth the affidavit, answer, &c., on which the perjury is assigned, verbatim; for the statute of 23 Geo. II., only requires the substance of the offence to be charged. Our revised laws of 1813, contain a provision similar to the act 23 Geo. II., and if it applies to this case, it was not necessary to state in the indictment more than the substance of the oath. If the revised statutes are applicable to this case (and that they are is settled by this court in the case of The People v. Phelps, decided at the last term), then no defect or imperfection in matter of form, which does not tend to the prejudice of the defendant, can be alleged against the indictment; 2 R. S. 728, s. 52. Whether we apply to this case the revised statute or the law as it stood previous to the last revision (and by one or the other it must be governed), it is quite evident that there was no necessity of setting forth the oath taken by the defendant, with absolute accuracy; yet if the pleader has heedlessly undertaken to do so, it may be, he should be holden to a strict performance. "The indictment alleges that the oath on which the perjury is assigned, is in substance and to the effect following, to wit, &c. Whether it was intended in this case to set forth the oath verbatim, depends upon the true definition of the word 'effect.' The word 'tenor' has a technical meaning and requires an exact copy; and the defendant's counsel infers that because effect' is often used with it, a like meaning is to be put on that word. The inference does not strike me as conclusive or correct; because the tenor and effect require an exact copy, it is not to be inferred that substance and effect require as much. The ordinary meaning of the word 'effect,' as well as judicial decisions thereon, refute the interpretation which the defendant's counsel has given to it. |