tion before the said J. S. (he the said J. S. then and there having sufficient and competent power and authority to administer the said affirmation to the said J. M'C. in that behalf), and that the said J. M'C. not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, then and there before the said J. S. upon his affirmation aforesaid, falsely, maliciously, wickedly, wilfully and corruptly did say, depose, affirm and declare (among other things) in substance and to the effect following, that is to say, that he the said J. M'C. on the twelfth day of December in the year aforesaid, at the county aforesaid, was possessed of five silver dollars, and he the said J. M'C. being so possessed thereof, the said I. K. with force and arms, &c., at the county aforesaid, did take and carry away the said five silver dollars out of and from the possession of the said J. M'C., thereby meaning and intending that the said I. K. was guilty of larceny, and had with force and arms feloniously stolen, taken and carried away the said five silver dollars, against the peace of the commonwealth at the county aforesaid; whereas in truth and in fact, at the time he the said J. M'C. so took his solemn affirmation aforesaid, in form aforesaid, or at any other time, the said I. K. had not, with force and arms, taken and carried away the said five silver dollars out of the possession of the said J. M'C., nor had with force and arms and against the peace of the commonwealth feloniously stolen, taken and carried away the same, but the said J. M'C. at the time he so took the affirmation aforesaid, in form aforesaid, then and there well knew that the said I. K. had not with force and arms and against the peace of the commonwealth taken and carried away the said five silver dollars, out of the possession of the said J. M'C., nor feloniously with force and arms and against the peace and dignity of the commonwealth, stolen, taken and carried away the said five silver dollars; and so the jurors aforesaid, upon their oaths and affirmations aforesaid, do say, that the said J. M'C. on the twelfth day of December, in the year aforesaid, at the county aforesaid, before the said J. S., being such justice aforesaid (and then and there having sufficient and competent power and authority to administer the said affirmation to the said J. M'C.), and within the jurisdiction of this court, by his own act and consent and of his own wicked and corrupt mind and disposition, in manner and form aforesaid, did falsely, wickedly and 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 the like case offending, contrary, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(588) In charging A. N. with assault and battery before a justice.(s)

That heretofore, to wit, on, &c., at, &c., K. M., late, &c., came before H. M'K., Esq., then and yet being one of the justices, &c., and then and there

(s) State v. Mumford, 1 Dev. 519.

After a verdict for the state, the counsel for the prisoner moved in arrest of judgment, contending that the assignment of perjury was not sufficiently certain, and in effect was nothing more than a negative pregnant; his honor, the presiding judge, being of that opinion, arrested the judgment, whereupon, Taylor, Chief Justice, said: "The objection taken in arrest of judgment, is founded on the assumption that the only material inquiry before the justice, whether Noble had assaulted Mumford or not, on the day specified, and that whether he struck him on the back or not at the last wrestle, was irrelevant and unconnected with that question; that the assignment of perjury in the circumstances, is consistent with the belief that the defendant might have sworn truly as to the principal fact, viz. the assault. This presents two questions, whether the materiality of the inquiry is sufficiently stated in the indictment, and whether the assignment of perjury is properly and distinctly made?

"It is laid down as a rule, which I found nowhere controverted, that it should appear on the face of the indictment that the oath taken was material to the question depending, not by setting forth the circumstances which render it so in describing the pro

upon her oath charged one A. N. before the said H. M'K., the justice, &c., with having assaulted, stricken, &c., one H. M., being the husband of her the said K. M. And the jurors, &c., further present, that upon the examination of the said K. M., before, &c., upon her oath aforesaid, touching and concerning the alleged assault by the said A. N. in and upon the said H. M., certain questions then and there became and were material, that is to say, whether A. N. did strike her husband H. M. with a stick across the back at the last time he and V. P. wrestled, and whether the blow across the back with a stick, was given immediately as he fell. And the jurors, &c., do further present, that the said K. M. wickedly devising and intending unjustly to aggrieve the said A. N. and procure him to be imprisoned, and kept in prison for a long space of time, on, &c., at, &c., before the said H. M'K. then being, &c., she the said K. M. did then and there take her corporal oath and was sworn upon the holy gospel of God before the said H. M'K., justice, &c., he the said H. M'K. then and there having sufficient and competent power and authority to administer an oath to the said K. M. in that behalf, and that the said K. M. not having, &c., but being moved, &c., then and there before the said H. M'K., justice, &c., upon her oath, &c., falsely, &c., did depose, say, swear, give and make information, among other things, in substance and to the effect following, that is to say, that N. (meaning the said A. N.) did strike her husband H. M. with a stick across the back, at the last time he

ceedings of a former trial, but by a general allegation that the particular question became material. In Aylett's case, a leading one on this subject, it is stated that it became a material question on the hearing of the complaint, and the hearing of that is stated in general terms (1 Term Rep. 66). In the King v. Dowlin, the question was much debated; it is there stated that the question became material on the trial, in the same general terms that it is stated here, and the trial is referred to in this manner, that at such a court J. R. was in due form of law tried upon a certain indictment, then and there depending against him for murder.' Dowlin was a witness against J. R. on that trial, and the perjury was assigned in his swearing, that he had never said that he would be revenged of the said J. R. and would work his ruin.' On this part of the case it was argued on behalf of Dowlin, that all those facts ought to be stated in the proceedings against J. R. which were necessary to show that the jurisdiction was competent, that there was something to be tried; the materiality of the question to that point, and the falsity of the oath. This objection is thus directly met by Lord Kenyon: But it has been objected that it was necessary to set forth in the indictment, so much of the proceedings of the former trial, as will show the materiality of the question on which the perjury is assigned. If it were necessary, and if the question arose on the credit due to the witness, the whole of the evidence given before must be set forth; but that has never been held to be necessary, it always having been adjudged to be sufficient to allege generally, that the particular question became a material question. But here it is averred, that the question on which perjury was assigned was a material question; the jury have found it so by their verdict' (5 Term Rep. 319).

"In this indictment, the warrant and examination before the magistrate are stated, and the general allegation of the materiality of the question, is in conformity with the best forms, and considered in reference to the statute on this subject (Rev. ch. 383), appears to me unexceptionable.

"The matter sworn to by the defendant is contradicted in the assignment of perjury, specially and particularly, and in the words in which it was sworn. A general averment upon the whole matter that the defendant falsely swore, is not sufficient; it should be specific and distinct, to the end that the defendant may have notice of what he is to come prepared to defend (2 M. & S. 385). And the whole matter of the defendant's false testimony must be set forth, and if the least part of one entire assignment be unproved, she could not be convicted. The offence charged consists in the whole and not in any one part of the assignment. And this, in my opinion, obviates the necessity of any opinion as to how far perjury may be committed, if the false oath has a tendency to prove or disprove the matter in issue, although but circumstantially; or how far the fact sworn to, though not material to the issue, must have such a connection with the principal fact, as to give weight to the testimony on that point. These views of the subject could in this case, only be properly presented to the court trying I think the conviction is right."

the cause.

(meaning the said H. M.) and V. P. (meaning a certain V. P.), wrestled, and the blow (meaning the blow with the stick across the back of the said H. M.), was given immediately as they (meaning the said H. M. and the said V. P.), fell, whereas in truth and in fact, the said A. N. did not strike her husband H. M. with a stick across the back, at the last time he the said H. M. and V. P. wrestled, and whereas in truth and in fact the blow was not given as they (the said H. M. and the said V. P.), fell. And so the jurors aforesaid, &c. &c.

(589) In false swearing by a person offering to vote, as to his qualifications when challenged. (t)

That on, &c., at an annual election held at the town of Porter, in the County of Niagara, for the choice of a senator from the eighth senatorial district of the State of New York, one member of assembly and a sheriff for said county and four justices of the peace for the town of Porter, held pursuant to the constitution and laws of the state before the board of inspectors of the said election then sitting at the house of, &c., in the town of Porter, which said board being then and there legally constituted and organized according to law to receive all legal or lawful votes or ballots for said officers to be elected as aforesaid, R. C., &c., appeared before the board and offered his vote or ballots for some or all of said officers, whereupon, before his vote or ballots were given in, he was duly challenged touching his right or legal ability to vote at said election for the said officers or either of them, and on being challenged he was then and there duly sworn and did take his corporal oath before the said board so constituted and sitting as aforesaid, the said board being then and there duly authorized and empowered to administer an oath to the said R. C. in that behalf; and he the said R. C., being then and there sworn by and before said board, and not regarding the laws of the state, &c., did then and there falsely, wilfully and corruptly say, depose and swear to and before the board aforesaid, touching his right to vote and his qualifications as a voter at said election for the officers aforesaid, "in substance and effect as follows, among other things, that is to say, that he the said R. C. was a natural born or a naturalized citizen of the State of New York, or one of the United States of America; whereas in truth and in fact, he the said R. C. was not a natural born or naturalized citizen of the State of New York, or one of the United States of America; and so the jurors aforesaid say that the said R. C. on, &c., did commit wilful and corrupt perjury," &c.

(590) In an affidavit to hold to bail, in falsely swearing to a debt.(u)

That A. B., of, &c., wickedly and maliciously contriving and intending one C. D., unlawfully to aggrieve and oppress, and the said C. D. to a great expense of his moneys, wickedly and maliciously to put and bring, and also to cause the sum of to be indorsed upon a process of the court of by virtue of which the said C. D. might be arrested to answer in the same court, at the suit of E. F., with intent that the said C. D. should be compelled to find bail for the aforesaid sum of on, &c., at, &c., came in his proper person before G. H., Esq., then being one of the justices of said court; and then and there in due form of law was sworn, and did take his oath before the said G. H., Esq., one of the justices of the said court as aforesaid (he the said G. H. then and there having sufficient and competent au

(t) Campbell v. People, 8 Wend. 636. I have been unable to obtain the record in this case, but the report appears to give the substantial averments of the indictment. (u) Altered by Mr. Davis, Prec. 200, from 2 Chit. C. L. 323.

thority and power to administer an oath to the said C. D. in that behalf), and that the said C. D. being so sworn as aforesaid, then and there, before the said G. H., Esq., upon his oath aforesaid, falsely, wickedly, wilfully and corruptly did say, depose, swear and make affidavit in writing (among other things), in substance and to the effect following, that is to say (here insert that part of the affidavit that is false), as by the same affidavit now filed in the court aforesaid, more fully appears; whereas in truth and in fact, the said C. D. (here negative the facts alleged as false). And so the jurors aforesaid, upon their oath aforesaid, do say, that the said C. D., in manner and form aforesaid, did commit wilful and corrupt perjury, against, &c., and contrary, &c. (Conclude as in book 1, chap. 3.)

(591) For 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. (v)

That before the making of the affidavit in this count mentioned, to wit, on, &c., a certain judgment was signed in her said majesty's said

(v) R. v. Newton, 1 C. & K. 469. The defendant was acquitted, but as this is the only precedent that has been given in the books, of false swearing, not of what the defendant knows to be false, but of what he does not know to be true, it is here published.

"On this point," says the reporter, in a marginal note, "it is laid down by Lord Coke, 3 Inst. 166, that the law taketh a diversity between falsehood in express words, and that it is only within this statute (5 Eliz. c. 9), and falsehood in knowledge or mind, which may be punished, though the words be true. For example, damages were awarded to the plaintiff in the Star Chamber according to the value of his goods riotously taken away by the defendant. The plaintiff caused two men to swear the value of his goods that never saw nor knew them; and though that which they swear was true, yet because they knew it not, it was a false oath in them, for which both the prosecutor and the witnesses were sentenced in the Star Chamber: Gurnei's case, Star Chamber, Mich. 9, Jac. I., and herewith agreeth Bracton, lib. 4, fol. 289, that a man may swear the truth and yet be perjured. Dicunt quidam verum et mentiuntur et perjerant eo quod contra mentum vadunt, ut si Judeus juraverit Christum natum ex virgine perjurium committit quia contra mentem vadit quia non credit ita esse ut jurat.

"In Oakley and Whitlesby's case, in K. B. 20, Jac. I.; Palmer's Rep. 294; it was resolved, that it is a misdemeanor and perjury at common law for one to swear without his knowledge, although it may be true; and in 2 Roll. Abr. 77, pl. 5, where this case is abridged, it is laid down that this is a false oath, punishable at common law, although it may not be within the statute (5 Eliz. c. 9). In the case of Allen v. Wesley, in C. P. 4, Car. I., Hetley's Rep. 97, it is stated that, in Style's case, it was agreed by the court that although a witness swears the truth, yet, if it be not truth of his own knowledge, as if he shows how one revoked a will by parol in his hearing, when the words were spoken to another in his absence, he does not swear truly, and it is a corrupt oath within the statute.'

6

But, in the case of Rex v. Hinton, 3 Mod. 122, in K. B. 2 and 3 Jac. II., the court says that there is a difference where a man swears a thing which is true in fact and yet he doth not know it to be so, and to swear a thing to be true which is really false; the first is perjury before God, the other is an offence of which the law takes notice.' "Mr. Sergeant Russell says (Russ. on Cr. and Misd. 1st ed. vol. ii. p. 1754, and Mr. Greave's ed. vol. ii. p. 597), with respect to the falsity of the oath, it should be observed, that it has been considered not to be material whether the fact which is sworn be in itself true or false, for howsoever the thing sworn may happen to prove agreeable to the truth or not, yet, if it were not known to be so by him who swears it, his offence is altogether as great as if it had been false, inasmuch as he wilfully swears that he knows a thing to be true, which at the same time he knows nothing of, and impudently endeavors to induce those before whom he swears to proceed upon the credit of a deposition, which any stranger might take as well as he,' and for this the learned sergeant cites 1 Hawk. P. C. c. 69, s. 6 (1 Curw. Hawk. b. 1, c. 27, s. 6), and the case of Rex v. Edwards, coram Adams B., Shrewsbury Lent Assizes, 1764, and subsequently considered by the judges (MS). And in the case of Rex v. Mawbey, 6 T. R. 619, which was an indictment for a conspiracy to pervert the course of justice by producing in evidence a false certificate of magistrates, that a road was in repair, Mr.

Court of Exchequer at Westminster aforesaid, in a certain cause wherein the said E. H. was plaintiff, and the said A. N. defendant, whereby it was considered by the said Court of Exchequer, that the said E. H. should recover against the said A. N., as well a certain debt as also certain damages and costs, as by the record thereof still remaining in the said Court of Exchequer at Westminster, more fully appears. And the jurors aforesaid, upon their oath aforesaid, do further present, that after the signing of the said lastmentioned judgment, and before and at the time of making of the arrest in this count mentioned, to wit, on, &c., at, &c., the said A. N. was the occupier of, and did dwell in, a certain dwelling-house there situate, and that there then and there was a certain outer door at the back of the same dwelling-house, and that, shortly before the making of the arrest in this count mentioned, to wit, on the day and year last aforesaid, at the parish last aforesaid, in the County of Gloucester aforesaid, the said G. W. went to the same dwelling-house for the purpose of arresting the said A. N., and did then and there arrest the said A. N. in the same dwelling-house, under and by virtue of a certain other writ of our said lady the queen, commonly called a capias and satisfaciendum, before then issued out of the said Court of Exchequer at Westminster aforesaid, upon the said last-mentioned judgment. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said A. N. was kept and detained in the said custody of the said sheriff of the said County of Gloucester, under and by virtue of the said last-mentioned writ, from the time of making of the said last-mentioned arrest until and at and after the time of the making of the affidavit in this count hereafter mentioned, to wit, at the parish of Cheltenham aforesaid, in the County of Gloucester aforesaid. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said A. N., contriving and maliciously intending to injure the said E. H., and to deprive him of the means of recovering the said debt, damages, and costs, last aforesaid, afterwards, to wit, on, &c., at, &c., in order to obtain a certain other writ, commonly called a habeas corpus, by means whereof he the said A. N. might be discharged out of the same custody of the said sheriff of the said County of Gloucester, as to the said last-mentioned execution, on the ground that the said last-mentioned arrest was illegal, did come in his own proper person before R. G. W., so being a commissioner, &c. (setting out authority), and did then and there, to wit, on the day and year last aforesaid, at the North Hamlet last aforesaid, in the County of Gloucester aforesaid, produce to and before the said R. G. W., so being such commissioner as aforesaid, a certain affidavit in writing of him the said A. N.; and that the said A. N. then and there by and before the said R. G. W., so being such commissioner as aforesaid, was duly sworn and did take his corporal oath upon the holy gospel of God, of and concerning the truth of the matter contained in the same affidavit (he the said R. G. W., then and there having sufficient and competent power and authority to administer the same oath to the said A. N. in that behalf). And the jurors aforesaid, upon their oath aforesaid, do further present, that at and upon the making of the same last-mentioned affidavit, it then and there became and was a material question, whether the said A. N. then knew of his own knowledge that, on the occasion when the said G. W. so went to Justice Lawrence said: 'It is not necessary that the defendants should have known that the road was out of repair; they are charged with conspiring to pervert the course of justice by producing in evidence a certificate that the road was in repair, and if the charge be established in fact, it is an offence of considerable magnitude against the administration of the justice of the country. This is not unlike the case of perjury where a man swears to a particular fact without knowing at the time whether the fact be true or false; it is as much perjury as if he knew the fact to be false and equally indictable.' We are not aware of any form of indictment in the printed collections for perjury, in swearing that which the party did not know to be true."