In the United States District Court, District of California, 1884. Subornation of Purjury-Indictment For. To sustain an indictment for procuring a person to commit perjury, it is necessary that perjury has in fact been committed. It can not be committed unless the witness swears to what was false, willfully and knowingly. The indictment must aver, not only that the statements made by the witness were false in fact, and that he knew them to be false, but also that the party procuring him to make those statements knew that they would be intentionally and willfully false on the part of the witness, and thus that the crime of perjury would be committed by him. DEMURRER to an indictment charging the defendant with subornation of purjury. The opinion states the facts. A. P. Van Duzer and J. J. De Haven, for the defendant. S. G. Hilborn, United States Attorney, and Carroll Cook, Assistant United States Attorney, for the United States. HOFFMAN, D. J. The indictment, after the usual formal allegations, which seem to be quite sufficient, charges in substance that the defendant procured one Burnett to commit the crime of perjury by swearing to certain allegations contained in an affidavit made and subscribed by him on an application for an entry of certain timber lands. It avers that Burnett knew that these allegations were false, and it negatives them by averring what the facts were. It also avers that the defendant, when he procured Burnett to swear to these allegations, also knew that they were false. It does not aver that he knew that Burnett was aware of their falsehood. To sustain an indictment for procuring a person to commit purjury it is obviously necessary that perjury has in fact been committed. It can not be committed unless the person taking the oath not only swears to what was false, but does so willfully and knowingly. He who procures another to commit a perjury must not only know that the statements to be sworn to are false, but also that the person who is to swear to them knew them to be false; for unless the witness has that knowledge, the intent to swear falsely is wanting, and he commits no perjury. It is, therefore, essential that the indictment should aver not only that the statements made by the witness were false in fact, and that he knew them to be false, but also that the party procuring him to make those statements knew that they would be intentionally and willfully false on the part of the witness, and thus the crime of perjury would be committed by him. The allegations of the indictment in this case are consistent with belief on the part of the defendant that the party alleged to have been suborned supposed the statements he was expected to make to be true. In that case he would not be guilty of perjury, nor could the defendant be adjudged guilty of procuring him to commit purjury. Demurrer sustained.1 NOTES. § 85. Common Barrator. —As to what does not constitute a common barrator, see Commonwealth v. McCulloch.2 $86. Bribery-Value Must be Received. Something of value must be received. Therefore, where a public officer took a promissory note which was void, the crime was held not committed.3 § 87. Bribery — Buying and Selling Offices -Party must Receive Profit, or Assurance of Profit - Trading Vote. — In Commonwealth v. Callaghan,+there was a corrupt agreement between two justices of the peace to the following effect: That A. would vote for C. as commissioner of revenue in consideration that B. would vote for D. as clerk, and that B. would vote for D. as clerk in consideration that A. would vote for C. as commissioner. The voting was done according to the agreement. It was held that this was not within the statute against buying and selling offices, because the corrupt bargains and sales prohibited by the statute were those by which the party bargaining and selling was to receive some profit, or some assurance of profit directly or indirectly to himself. § 88. Bribery-Offer to Accept Bribe.-An offer to accept a bribe is not a crime.5 § 89. Bribery of Judicial Officer- Bribe not Accepted- Case not then Pending. Under the Alabama statute (as also it seems under the California law), an offer to bribe a justice of the peace to decide a case before him is not punishable, if the bribe be not accepted, or the case be not at the time pending before him. In Barefield v. State,' DARGAN, J., said: "The section of the act upon which this indictment is founded is in the following language: 'Every person who shall corruptly promise, or give to any executive, legislative, or judicial officer, after his election, or appointment, either before or after he shall have been qualified, or shall have taken his seat, any gift or gratuity whatever, with intent to influence his act, vote, opinion, decision, or judgment, on any matter, cause, or proceeding, which may be then pending, or may have come, or be brought before him, in his official capacity, shall be punished by imprisonment in the penitentiary not less than two, nor exceeding ten, years.' 1 See cases U. S. v. Dennee, 3 Woods, 39; Com. v. Douglass, 5 Mete. 244; 2 Arch. Cr. Pr. & Pl., Pomeroy's notes, 1750; 2 Whart. Cr. L., (8th ed.) 1329. 2 15 Mass. 217 (1818). State v. Walls, 54 Ind. 561. 4 2 Va. Cas. 460 (1825). 5 Hutchinson v. State, 36 Tex. 293 (1871). • People v. Purley, 2 Cal. 565 (1852). 7 14 Ala. 603 (1845). "We think that in order to consummate the crime under this act it must be shown that the cause or proceeding was pending before the officer at the time the gift or promise was made; or that the cause, or proceeding, was afterwards instituted before the officer, or so instituted that in the ordinary mode of proceeding the same would come before him. The evidence shows that the offer made to the justice was rejected; no suit had then been brought before him, nor was it shown that any suit or proceeding was afterwards commenced. The mere proof of the offer, which was rejected (no suit being then pending, nor any afterwards commenced) is insufficient to make out the crime. We also think that a mere offer, which is rejected, does not constitute a promise, or gift under the statute. It is true that an offer to bribe a judicial officer is a high offense at the common law, and one that deserves severe punishment. It is an attempt to corrupt the fountain of justice, and to prevent the object and end of government. "Such an offense was severely punished at the common law, and might well have been made a penitentiary crime. But we can not come to the conclusion that the statute intended to punish by imprisonment in the penitentiary the mere offer to bribe. To perfect the crime there must be an acceptance of the promise, or gift, either express or implied. But if the bribe is rejected, the offense is punishable at the common law by fine and imprisonment. "From this view it follows that there is error in the charge of the court, and also error in refusing to arrest the judgment on the motion of the defendant, as the indictment does not aver that any suit, or legal proceeding was then pending or was afterwards instituted. "Let the judgment be reversed, and the cause remanded." - A promise § 90. Bribery-Offer of Reward to Electors by Candidate. by a candidate for the office of county judge made to the voters of his county prior to his election that he will, if elected, pay into the county treasury two hundred dollars per annum of his salary as judge is not an "offer to reward a voter," within the Oregon Constitution, unless it also appears that the voters influenced by such offers were tax-payers in such county, or would in some way be benefited by the performance of such offer.1 § 91. Escape-Voluntary Escape-Negligent Escape. To constitute voluntary escape, the act must be done intentionally; if negligently or ignorantly it is negligent escape.2 § 92. The Officer in whose Custody the Prisoner is must have Authority to Hold Him.3 § 93. Instanter. - Prisoner on Bail - Verdict of Guilty - Prisoner not in Custody Where the accused is out on bail, the return of a verdict of guilty does not of itself (without an order of court) terminate his right to his liberty or place him in the custody of the sheriff, nor does it give the sheriff a right to arrest or imprison him, and therefore one who under such circumstances aids him to escape is not guilty. been in the service of the defendant Stone, who found in their possession some articles that he claimed to be his; that the defendant Stone charged her with stealing these articles, and having paid Selina Smart a sum of 6d. 16s., which was the amount of her wages, he left the room, telling the other defendants to settle with Selina Smart and her sister; that they would both be transported if they did not go away and leave the money; that they accordingly did leave the money, and afterwards went before a magistrate to try to recover their wages; but these circumstances coming to the knowledge of the defendant Stone, he preferred an indictment against Selina Smart and her sister, for robbing him; upon which indictment they were convicted. Mr. Justice BOSANQUET. The present indictment charges, that the defendants compounded a felony, and "did desist and from that time hitherto have desisted from all further prosecution of the said Selina Smart." Now, I understand you to state, that, so far from that being the case, Selina Smart has been actually convicted on the prosecution of this very defendant. Carrington, for the defendants. Both Selina Smart and her sister were tried at the last assizes, before Mr. Baron Bolland, and convicted. Mr. Justice BOSANQUET Then, I am of opinion that this case can not be supported. The defendants must be acquitted. Verdict, not guilty. § 109. Resisting Officer-Must be an "Officer."- The party resisted must be an officer. An overseer of a public road is not a "public officer" whose authority it is a crime to resist.2 - § 109a. Resisting Officer - Officer Must Have Authority. The officer in doing the act which is resisted, must be acting within his authority. Where the defendant was indicted under the act of April, 1790,* for resisting the deputy marshal when serving two writs of capias ad respondendum upon him, the one for a duty due upon a still, and the other for a penalty recovered in an action of debt by the United States under the revenue laws; the marshal having demanded bail on both, and the defendant having resisted an attempt to imprison him by the marshal for refusal to give bail, it was held that the resist ance was lawful and the defendant not guilty, the marshal having a right to require bail on the former capias, but not on the latter. It seems that if an officer, having a distress warrant against the property of A., is resisted while attempting to seize the property of B. upon it, the person so resisting him is not liable for resisting an officer, and resistance to the execution of a writ of habere facias possessionem, after the return day of the writ, is not an offense; the writ can not be executed after the return day. The inspectors being appointed under the act of March 2, 1799, by the collector annually in office, and ceasing to be such officers upon his death, removal or resignation, an inspector exercising the duties of such office after the death of the collector who appointed him, and before his reappointment by the new collector, is not such an officer of the customs for the resisting of whom an indictment will lie, under 1 As to the construction of the word "officer" in this connection, see State v. McOmber, 6 Vt. 215 (1834). 2 Maverty v. State, 10 Lea, 729 (1882). 3 U. S. v. Fears, 8 Woods, 310 (1878), ante, p. 324. 4 ch. 9, sec. 22. 6 U. S. v. Mundell, 1 Hughes, 415; 6 Call (Va.), 245. U. S. v. Myers, 14 Int. Rev. Rec. 14. the act above recited.1 In United States v. Gay,2 casks of goods had been brought from Vermont and were deposited in the store of the defendant at a place near Boston, to which latter place they were destined. There was no apparent attempt at concealment or opposition to search. The casks were accompanied by an invoice, on which was written a certificate of passport from the collector of the district of Vermont. This invoice was shown to the inspector at the defendant's store, and the marks and numbers in it corresponded with those on the casks. The defendant proposed that the inspector should accompany the merchandise and ascertain at the custom-house the genuineness of the signatures of the collector of Vermont. The inspector refused this, and insisted on removing the goods to the custom-house at Boston. Upon these facts, the court directed the jury that there was not probable cause of suspicion that the goods were illegally imported to justify a seizure by the inspector, and the defendant was not liable for resisting such seizure.3 § 110. Resisting Officer Officer Must have Process. - Resisting or striking a constable when commanding the peace, there being no writ or process in his hands, is not "resisting an officer in the execution of legal process." 4 5 $111. · Officer must be Acting in Execution of Duty. To sustain an assault on an officer in the execution of his duty, the latter must be so acting. In R. v. Prebble, it appeared that some persons were drinking at a late hour of night in a barn attached to a public house, and the landlord desired a constable to clear them out, and while he was so doing they assaulted him. "The people," said BRAMWELL, J., "were doing nothing illegal nor contrary to any act of Parliament, and, therefore, the constable was not acting in the execution of his duty as such though what he did may have been very laudable and proper. It would have been otherwise had there been a nuisance or disturbance of the public peace, or any danger of a breach of the peace." § 112. Hinderance must be while Officer is in Discharge of Duties Remote Cause not Sufficient.- To constitute the offense the resistance or hinderance must be while the officer is in the actual discharge of the duties of his office and, therefore, an act which may in its remote consequences only, have the effect of preventing the officer from discharging his official duty, would not constitute the offense. Thus in State v Lovett, the prisoner against whom a suit had been brought obtained the writ from the justice, and refused to return it to him whereby further proceedings in the court were prevented. It was held that this was not within the law. § 113. ments "Resist" Means Direct, Forcible Means, not Passive Impedi-Threats. In State v. Welch,' an officer was about to seize, under a valid writ of replevin, a pair of colts running at large in a field, but the defendants by throwing up their hands and by throwing sticks at the colts frightened them so that the officer could not catch them, and afterwards while the officer was gone for assistance, the defendants secreted the colts. It was held that 1 U. 3. v. Wood, 2 Gall. 360. 2 ante, p. 321. U. S. v. Gay, 2 Gall. 359. 4 Jones v. State, 60 Ala. 99 (1877). 51 F. & F. 325 (1858). 63 Vt. 110 (1830). 7 37 Wis. 196. |