(585) Against an insolvent in Pennsylvania, for a false account of his estate.(q)

That I. L., late, &c., on, &c., being a person charged in execution for divers sums of money not exceeding in the whole the sum of one hundred and fifty pounds, and contriving and intending to cheat and defraud a certain J. H. and others his creditors, of their just debts, upon the application and petition of him the said I. presented to the County Court of Common Pleas holden at Philadelphia in and for the County of Philadelphia, was brought up before the justices of the same court, agreeably to the directions of the act of assembly, entitled "an act for the relief of insolvent debtors within this province of Pennsylvania," and then and there in his petition. aforesaid did affirm and assert, that he the said I. had no estate real or personal, and then and there before the justices of the same court, did take his corporal oath, administered according to law and the directions of the said act, by the said court, and then and there before the said court upon his oath aforesaid, falsely, corruptly and maliciously and wilfully did swear, depose and affirm that the account by him the said I. delivered, into the said court in his said petition to the said court, did contain a full and true account of all his real and personal estate, debts, credits and effects whatsoever, which he the said I. or any in trust for him then had, or at the time of his imprisonment had, or then was in any respect entitled to, in possession, remainder or reversion, except the wearing apparel and bedding for him or his family, and the tools or instruments of his trade or calling, not exceeding five pounds in value in the whole, and that he had not at any time since his imprisonment or before, directly or indirectly, sold, leased, assigned or otherwise disposed or made over in trust for himself, or otherwise, other than as mentioned in such account, any part of his lands, estate, goods, stock, money, debts or other real or personal estate, whereby to have or expect any benefit or profit to himself, or to defraud any of his creditors to whom the said I. was then indebted, whereas in truth and in fact, he the said I. then had and well knew that he had a certain debt amounting to the sum of seven pounds and ten shillings, due from a certain J. M. and payable to him the said I. L., and whereas in truth and in fact, the said I. L. then and there had and well knew that he had divers other debts, goods and chattels exceeding in value the sum of five pounds; and so the inquest aforesaid, upon their oaths and affirmations aforesaid, do say, that the said I. L., on the day and year aforesaid, at the city aforesaid, before the court aforesaid, in manner and form aforesaid, falsely, maliciously, wilfully and corruptly did commit wilful and corrupt perjury, to the great displeasure of Almighty God, and against, &c. (Conclude as in book 1, chap. 3.)

(586) For false swearing in answering interrogatories on a rule to show cause why an attachment should not issue for a contempt in speaking opprobrious words of the court in a civil suit.(r)

That at a Court of Common Pleas held at Chambersburg, in and for the County of Franklin, before J. R., Esq., and his associates, judges of the said

(9) This indictment was drawn by Mr. Bradford, and found and sustained in 1787, under the laws then in force.

(r) In Res. v. Newell, 3 Yeates 407, several exceptions were taken to this indictment in arrest of judgment, which are fully discussed by Smith J.:

"1. The first reason is, that the deposition on which the perjury is assigned, is stated to be on an interrogatory filed between the commonwealth and the defendant, on the part of the commonwealth; without stating any proceeding between the commonwealth and the defendant, in which the said deposition would be material.

"This objection was taken at the trial under another shape, and was overruled by

court, upon, &c., a certain plea was then and there pending between a certain J. T., plaintiff, and a certain T. S., defendant, upon a certiorari directed

the court. It was then said, that the interrogatories were wrongly entitled; that the plea was pending between James Taylor and Thomas Shirley, and the rule was entered in that cause; and inasmuch as the proceedings were on the civil side of the court until the attachment issued, the interrogatories should have been filed in that suit, and headed accordingly. To this point were cited 3 Term Rep. 253 and 6 Term Rep. 642, note, and the case of Caleb Wayne, lately decided in the Circuit Court of the United States, for the eastern district of Pennsylvania. The answer given was, that we had not adopted that nicety of form here, which was practised in England; but at the utmost, that the defendant should have taken advantage of the informality and showed to the court the grounds of his refusal to answer the interrogatories. He was now too late, after he had come in and voluntarily submitted to answer. The rule was entered in December term, 1799, that the defendant should show cause why an attachment should not issue against him, for treating the process of the court with contempt, and using opprobrious words respecting the court. This rule was grounded on due proof made of his improper conduct previous thereto. He was then actually in contempt. We considered the rule to show cause in such a case as wholly unnecessary. For contemptuous words spoken of a court, its rules or process, an attachment issues immediately of course; Sayer 114; 1 Stra. 185. The party must answer in custody, for it is to no purpose to serve him with a second rule, that has slighted and despised the first; it would expose the court to further contempt; 1 Salk. 84. The jurisdiction of the court on its criminal side grew out of the civil action, returned on the certiorari in the plea above stated, and the oath of the party became material. The insuring of the attachment is only for the purpose of bringing in the party to answer to the interrogatories, and if he can swear off the contempt he is discharged; 12 Mod. 348. If he deny all on oath, he is set at liberty; but he must be indicted for perjury if he forswear himself; 12 Mod. 511; 8 Mod. 81; Dougl. 498; Mosel. 250; 1 Stra. 444; Annal. 178; 4 Burr. 2106. When therefore Newell appeared in the Court of Common Pleas, to purge himself of the contempt charged against him, we viewed him in the same light as if his presence had been enforced by attachment, and were of opinion, that in either case, the interrogatories should be entitled in the same manner. We considered the rule to show cause stated in the indictment, as mere matter of inducement. An indictment for perjury at an assize, may allege the oath to have been taken before one of the judges in the commission, though the names of both are inserted in the caption; Leach 154.

"The second objection is, that it is not stated that the defendant took an oath on the holy gospel of God, or in the presence of Almighty God by uplifted hand. The indictment charges, that 'the said Robert Newell did then and there, in due form of law, take his corporal oath,' &c. This form was approved of by Lord Hardwicke, who says, the words corporal oath may stand for lifting up an arm or other bodily member. What is universally understood by an oath is, that the person who takes it, imprecates the vengeance of God upon him if the oath ho takes is false ;' 1 Atky. 20. In the great case of Omychund v. Barker, Ld. Chan. Baron Parker said, he did not think, tactis sacris Evangeliis were necessary words; for several old precedents are, that the party was juratus generally, or debito modo juratus; vide West's Symb. 2d part, under the head of Indictments and Offences, s. 160; 1 Atky. 43, 44. Lord Chief Justice Willes says, that sacrosancta Evangelia are not at all material words in indictments for perjury; ib. 46. Lord Chancellor Hardwicke asserts the same opinion, and observes that the framers of indictments are apt to throw in words, and to swell them out too much to no purpose; therefore the old precedents are the best; ib. 50. According to Lord Chief Justice Kenyon, an indictment for perjury is sufficiently certain, if it only states the defendant to have been in due manner sworn; Peake 156; vide ib. 23; Mee v. Reid, and Leach C. C. 348; Mildrone's case.

"3. The third reason in arrest of judgment is most material, and has obtained from us much consideration. It is this; that in the assignment of the perjury, it is not stated that the defendant did falsely, corruptly and wilfully swear, &c.

"If the indictment is considered as grounded on the statute 5 Eliz. c. 9, it is certainly defective; because the words wilfully and corruptly are inserted in the sixth paragraph, as material descriptions of the offence. And it is clearly settled, that in every prosecution on this statute, the words thereof must be exactly pursued; and therefore, that an indictment or action on the said statute, alleging that the defendant deposed such a matter false and deceptivè (2 Leon. 211; 3 Leon. 230; 1 Show. 190); or, falsè et corruptive (Hill. 12; Cro. El. 147); or, false and voluntariè; (Sav. 43); without expressly saying that he did it voluntariè et corruptè, is not good, and that such a defect cannot even be supplied by adding the words contra formam statuti, or concluding et sic

to R. N., Esq, and returned into the said court, and the said court did then and there make a rule of the said court in substance as follows, to wit:

voluntarium et corruptum commisit perjurium; 2 Leon. 214; 1 Leon. 230; Hetl. 12; Savil. 43; Cro. El. 147; 1 Hawk. c. 69, s. 17.

"The present indictment concludes, 'contrary to the act of general assembly in such case made and provided.' But on examining our statute book it will be found, that the only law respecting this offence in courts of justice, was enacted on the 31st May, 1718, the 24th section whereof goes to subornation of perjury; and the 25th section extends the English statute of 5 Eliz. c. 9, and declares that this statute shall be put into due execution here; 1 St. Laws 143. The act of 5th April, 1790 (2 St. Laws 804), which was made perpetual by the act of 4th April, 1799 (4 St. Laws 399), prescribes fine and imprisonment, in lieu of the former infamous punishments of pillory and whipping. It will be further found, that this statute of 5 Eliz. c. 9, extends to no other perjury than that of a witness; and therefore no one can come within the statute, by reason of any false oath in an answer to a bill in chancery (Cro. El. 148; 2 Leon. 201; Dalis. 84; Yelv. 120), or in swearing the peace against another (2 Roll. Ab. 77, pl. 5), or by reason of a false wager of law (Noy. 7, 108), or for taking a false oath before commissioners appointed by the king, to make an inquiry concerning his title to certain lands (Moor 627; 1 Hawk. c. 69, s. 20). It therefore necessarily follows, that if the indictment had been framed with the utmost correctness, under the statute of 5 Eliz., the offence of the defendant was not punishable thereby, because he was not a witness, examined in a court of justice, in the usual course of proceeding.

"Perjury is defined by Lord Coke to be a crime committed, when a lawful oath is administered in some judicial proceeding, to a person who swears wilfully, absolutely and falsely, in a matter material to the issue, or point in question; 3 Inst. 164; 4 Bl. Com. 137. And in 10 Mod. 195, it is laid down, that the oath must not only be false, but wilful and malicious, to make it perjury. Here the legality of the oath, and the propriety of the judicial procedure, are indisputable. The indictment states, that the defendant did 'then and there voluntarily, and of his own free will and accord propose to the said court, to purge himself upon oath of the said contempt alleged against him; that he was then and there duly sworn on his corporal oath, and then and there did answer and declare,' &c.; negativing by express averments the truth of his oath, with a conclusion, that 'he the said Robert Newell, the day and year aforesaid, at Chambersburg aforesaid, &c. &c., by his own act and consent, and of his own most wicked and corrupt mind and disposition, in manner aforesaid, did knowingly, falsely, wickedly, maliciously and corruptly commit wilful and corrupt perjury,' &c.

"On the bare reading of the indictment, one would reasonably suppose that the wilfulness, absoluteness, falsity and malice of the oath were sufficiently asserted and charged against the defendant. But his counsel have ingeniously objected, that it does not pursue the course of the precedents, and that the offence is not laid in a manner known to the law.

"We hold ourselves bound by precedents. We flatter ourselves, we can say with Lord Chief Justice Kenyon, ‘it is our wish and comfort to stand super antiquas vias ;' 7 Term. Rep. 668. In criminal cases, we will not intentionally inflict new hardships on any one, let our individual feelings be what they may. To satisfy our minds in this particular, my brother Yeates and I have made diligent and painful researches into the books of entries on the criminal law. The result of our inquiries has been as follows:

In

"In Rex v. Oates, 5 St. Tri. 4, the indictment for perjury charges him that he falsely, voluntarily and corruptly did say, &c. So on the second indictment against him; ib. 70. In Rex v. Sir Patience Ward, 3 St. Tri. 661, the information states that he falsely and corruptly did swear, &c. In Rex v. Elizabeth Canning, 10 St. Tri. 206, the indictment charges that she did falsely, wickedly, voluntarily and corruptly say, &c. Tremaine's Pleas of the Crown, p. 136 to 167, there are thirteen indictments for perjury, all of which are laid with the epithets (or some of them) falsely, corruptly, maliciously and voluntarily, &c. In Stubb's Crown Circt. Comp. 308 to 334, there are seven indictments, with the same epithets, applied to the acts of swearing. So in Clift's Entries 399, 401, there are two informations for perjury at the assizes, that the defendant maliciously, voluntarily and corruptly swore, &c. And in Rex v. Greepe, 5 Mod. 343, an information at common law for perjury in a trial at bar in replevin, charges the defendant, that he falsely, maliciously, voluntarily and corruptly on his oath, said, &c. In Co. Ent. 164, b. 357, a., there are two precedents of actions brought in debt on the stat. 5 Eliz. c. 9, wherein it is laid, that the defendants voluntarily and corruptly swore, &c. And so in many other actions of debt in other books.

"On the other hand, in the same book, 165, b., there is a form in a deposition before commissioners on interrogatories in chancery, wherein the epithets are not used. So

"Rule that R. N., Esq., show cause by the next term, why an attachment shall not issue against him for treating the process of this court with contempt, and using opprobrious words to a person who served upon him a copy of a rule of this court, while the person was engaged in that service." And the jurors aforesaid do further present, that afterwards, to wit, upon &c., in the county aforesaid, and within the jurisdiction of this court, the said R. N., Esq., of the county aforesaid, did appear in his proper person, before the said Court of Common Pleas, held by the judges aforesaid, and did then and there voluntarily and of his own free will and accord propose to the said court to purge himself upon oath of the said contempt alleged against him, whereupon certain interrogatories were then and there drawn up in writing, and proposed to the said R. N., Esq., in substance as follows, to wit:

in Rast. Ent. 481, the declaration lays the swearing without those terms, per quod idem R. voluntarie et corruptive commisit perjurium voluntarium.

"In Officium Clerici Pacis (a book containing many excellent precedents), fol. 87, we find an indictment for perjury, in a deposition resembling the present case in all particulars. It states, that the defendant being sworn, said and upon his oath affirmed and deposed in manner following, &c. Whereas in truth and in fact, &c., voluntarily and corruptly committed voluntary and corrupt perjury,' &c. Again in West's Symbol, 119, b., s. 160, another form of the same kind occurs for perjury in a deposition before commissioners by commission out of the Court of Wards. But in the same book and page, s. 161, for perjury in a deposition before commissioners, by commission out of Chancery on the stat. of 5 Eliz., after the words in the indictment, 'whereas in truth the said H. S. did not cause, &c., neither, &c. (negando effectum depositionis), prout prædict. W. falsè and corruptè deposuit et juravit, per quod,' &c. And again, ib. 138, s. 241, an indictment for perjury committed in an answer, in the Exchequer at Chester, states, that the defendant on his oath, 'said, affirmed and swore these English words following, &c., and so the said R. in making and confirming his answers in that part aforesaid, the day of at, &c., voluntarily and corruptly committed voluntary perjury,' &c.

"It is evident, therefore, that the forms of indictment at common law for perjury, are not uniformly the same; but the words falsely, corruptly and wilfully, as applied adjectively or adverbially to the act of swearing, are mere expletives to swell the sentence, in the language of Lord Hardwicke; 1 Atky. 50.

"We find no adjudged case or dictum in the books, that such words are appropriate terms of art, descriptive of the crime of perjury, at common law, as murdravit in an indictment for murder, cepit in larceny, mayhemiavit in mayhem, feloniee in felony, &c.; 2 Hawk. c. 25, s. 55. On the contrary, we do find it laid down by the judges, that an indictment for perjury at common law, does not require so much certainty as on the statute and that it need not be in a court of record, or matter material to the issue; 5 Mod. 348; 1 Sid. 106. And in Cox's case (Leach 69), it was agreed by ten judges unanimously, that the word wilfully, was not essentially necessary in an indictment for perjury at common law, though it was essential in an indictment for perjury under the stat. of 5 Eliz. c. 9, because the term wilful in the statute, is a material description of the offence. Still it is necessary, that it should appear by the indictment that the oath was wilfully false.

"It will readily be agreed, that all indictments must have a precise and sufficient certainty, and that the offences must be set forth with clearness and certainty; 4 Bl. Com. 305-6. Every person should be apprised of the distinct charge made against him, in order that he may come fully prepared for his defence. But in the words of the humane Lord Hale, 'the great strictness and unseemly niceties, required in some indictments, tend to the reproach of the law, to the shame of the government, to the encouragement of villainy, and to the dishonor of God;' 2 H. H. P. C. 193.

"4. The last reason offered in arrest of judgment, is, that the indictment is insensible and repugnant, and is defective both in form and substance. This objection being made in general terms, must necessarily refer to the supposed defects before particularly specified and already considered.

"Upon the whole, on the best consideration, which my brother Yeates and I have been capable of giving to the different reasons filed in arrest of judgment, our official duty constrains us to say, that they are not relevant in point of law, and that the commonwealth is entitled to judgment."

Pennsylvania against R. N., Esq.-In the Common Pleas of Franklin

County.

Interrogatories exhibited on the part of the commonwealth. 1st. Did T. S. at any time previous to the last December term for this county, serve you with a copy of a rule of the Court of Common Pleas of Franklin County, to show cause why an attachment should not issue against you for a contempt of the said court? 2d. After having read the copy of the rule mentioned in the first interrogatory, did you say "Damn the court, they are a set of damned stool-pigeons," and say "If the court want a copy of my judgment, they may come for it?" or did you make use of any of the expressions above stated?

And the said R. N. did then and there in due form of law, take his corporal oath before the said court (they having sufficient and competent power and authority to administer an oath to the said R. N. in that behalf), that he the said R. N. would true answers make to the said interrogatories; and he the said R. N. being so sworn upon his corporal oath, on the matters contained in the said interrogatories did then and there answer and declare before the said court, in answer to the said second interrogatory, that he (himself the said R. N. meaning), did not make use of any of the expressions therein (the said interrogatory meaning), contained; whereas in truth and in fact, the said R. N. after having read the copy of the rule of the court aforesaid did say, "Damn the court, they are a set of damned stoolpigeons." And whereas in truth and in fact, the said R. N., after having read the copy of the rule last aforesaid, did say, "If the court want a copy of my judgment" (the judgment of him the said R. N. in the said cause between J. T. and T. S. meaning), "they may come for it." And so the jurors aforesaid, upon their oaths and affirmations aforesaid, respectively do say, that the said R. N. on the said third day of April, in the year last aforesaid at C. aforesaid, in the county aforesaid and within the jurisdiction of this court, upon his oath aforesaid, before the said Court of Common Pleas (the said Court of Common Pleas then and there having sufficient and competent power and authority to administer the said oath to the said R. N.), by his own act and consent, and of his own most wicked and corrupt mind and disposition, in manner and form aforesaid did knowingly, falsely, wickedly, maliciously, wilfully and corruptly commit wilful and corrupt perjury, to the great displeasure of Almighty God, to the evil and pernicious example of all others in like case offending, contrary, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(587) In charging J. K. with larceny before a justice of the peace.(rr)

That formerly, to wit, on, &c., at the county aforesaid, J. M'C., late, &c., came before J. S., Esq., then and yet being one of the justices of the Commonwealth of Pennsylvania assigned to keep the peace in and for the said County of Philadelphia, and also to hear and determine divers felonies, trespasses and other misdeeds committed in the said county, and the said J. M'C. well knowing the premises, and wickedly devising and intending unjustly to aggrieve one I. K., and to procure him without any just cause to be imprisoned, and kept in prison for a long space of time, on the said twelfth day of December, in the year aforesaid, at the county aforesaid, the said J. M'C. then and there being present in his own proper person, before the said J. S., Esq., then and there being one of the justices of the commonwealth assigned to keep the peace in and for the said County of Philadelphia, and also to hear and determine divers felonies, trespasses and other misdeeds committed in the same county, he the said J. M'C. did then and there take his solemn affirma

(rr) Drawn in 1794 by Mr. Jared Ingersoll, attorney-general of Pennsylvania.