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From the evidence, it appeared that on the 24th of December, 1871, the prisoner, who lived at Colne, and who was a saddler by trade, was removing his goods from his shop, and had hired a horse and cart for that purpose; as he was standing on the top of the cart, arranging the goods, the horse moved slightly, which so enraged him that he jumped off the cart and kicked the horse and struck it about the head. The prosecutor, whose shop was just opposite, was standing at his door, and seeing the prisoner act thus, he shouted out to him, “That is nice conduct for a religious man!” “If there was a society for the prevention of cruelty to animals, I would summon you." Whereupon the prisoner replied: “If you don't go into your own house, I will do the same to you.” The prosecutor then retorted in these words: “ Thou can't; thou art a squinting lying devil.” Next day the prisoner laid an information against the prosecutor for using language calculated to incite him to commit a breach of the peace; the justices heard the case and eventually dismissed the charge against the prosecutor. During the case, several witnesses were called, who proved that they saw the prisoner kick and strike the horse, but the prisoner in cross-examination distinctly swore he had not done anything of the kind; the magistrates thereupon committed the prisoner to the assizes, for having committed willful and corrupt perjury, inasmuch as he had distinctly sworn he had never kicked or struck the horse, whereas several witnesses had conclusively proved that he had.

After the case for the prosecution had been opened,

MELLOR, J., said he doubted whether perjury could be assigned on the statement made by the prisoner, that he never kicked or struck the horse, as he did not think the words were material to the issue.

Hawthorne, said that as it went to the credit of the witness it was material.

MELLOR, J., said that he thought the statement by the prisoner was only cols lateral to the issue; he would, however, consult Mr. Justice Lush. This he did, and on his return into court he said: “ My brother Lush and I have considered this case; and we are of opinion that there can be no assignment of perjury; the words used were merely collateral to the issue then before the court. I may also say that we entertain no doubt about it.”

Not Guilty. In R. v. Tate, the prisoner was indicted for willful perjury, committed on the hearing of a charge against one Smith for an assault upon his wife, and the assignment of perjury was on a statement by the prisoner, -as a witness for the husband, Smith - that he had seen Smith's wife under such circumstances as to lead to the impression that she was committing adultery, which he had told Smith just before the assault.

Grantham, for the prosecution.
Hall, for the prisoner.

Hall submitted for the prisoner that the assignment of perjury was bad, as being immaterial. It was not material to the charge of assault, as it did not affect the fact of an assault.

COCKBURN, C. J. The statement that the prisoner had seen the wife of Smith committing adultery, though told to Smith, would not be legally material on the charge of assault. It could not affect the fact of the assault, nor the legal liability for it, for it could afford no legal justification. At the utmost it could only suggest a provocation, which might afford some mitigation of punishment; but it could not affect the legal character of the act of assault or the legal liability for it. The prisoner, therefore, could not be convicted upon this indict. ment, as the assignment of perjury, was not legally material.

1 12 Cox, 7 (1871).

Verdict, not guilty.

$ 130. Materiality - Denial of Unenforcible Agreement. — In R. v. Dunston, in an answer to a bill filed for specific performance of a contract as to land, the defendant had relied on the statute of frauds (the agreement not being in writing), and had also denied the contract. On this denial the defendant was indicted for perjury. It was held that the denial of an agreement which, by the statute of frauds was not binding on the parties was immaterial and irrelevant, and the defendant could not be convicted.

So perjury can not be assigned on an answer in chancery denying a promise absolutely void by the statute of frauds.?

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§ 131. Incompetency of Witness. — In R. v. Clegg,' the prisoner had been summoned before the magistrates on a charge of permitting gambling in his house. The defendant in such proceedings being an incompetent witness, J. C. had tendered himself, representing that he was the son of J. C., and was therefore sworn and gave evidence in behalf of J. C., who was really himself. For false testimony which he gave on this examination he was indicted for perjury. HANNEN, J., held that the indictment could not be sustained, saying: “ The intention was to summon J. C., the licensee of the house. This was left to be served by the mother, and then the prisoner comes forward and by a trick induces the magistrates to believe that he is not the J. C. summoned. Much as I may regret that the prisoner should escape the consequences of this trick, still I think that it was not competent for him to give evidence, and that the indictment can not be sustained."

$ 132. Testimony Must be " False and Corrupt"- Rash and Inconsider. ate Oath. - Rash and reckless swearing is not necessarily perjury. “The statute makes it of the essence of the offense of perjury that it be committed willfully and corruptly which can not be taken as synonymous with rashly and inconsiderately swearing as the belief of the witness prompts him.'' 5

$ 133. Opinion Without Reasonable Cause.- So falsely swearing to a fact to the best of the opinion of the witness, which the witness, though without reasonable cause believes to be true, is not perjury.

$ 134.

Opinions — Erroneous Construction. — And an indictment for perjury will not lie upon the construction of a deed; as where a person swears that “the title to lands is in issue in this case." 7 So where a person swears that he owned certain property on a certain day, misconstruing his title, it is not perjury.8 So where one swore that the plaintiff had “warranted” certain goods.9

1 R. & M. 109 (1824).
2 R. v. Benesech, Peake Add. Cas. 93.
3 19 L. T. (N. S.) 47 (1868).

4 U, S. v. Atkins, 1 Sprague, 558 (1856); U. S. v. Lowell, 2 Lowell, 232.

6 U.S. v. Shellmire, Bald. 378 (1831).

& Com. v. Brady, 5 Gray, 78 (1855).

7 State v. Woolverton, 8 Blackt. 452 (1847).

8 Anonymous, 1 Wash. C. C. 84 (1804).

9 Com. v. Corfield,1 W. N. 0. (Pa.) 457 (1875).

perjury is a false oath taken in some judicial proceeding, in a matter material to the issue. A promissory oath of an insolvent, that he would “deliver up, convey and transfer all his property,” etc., can not be made the subject of a prosecution for perjury.” The seventh section of the act of July 29, 1813, granting a bounty to vessels engaged in the fisheries, enaots that the owner or owners of every fishing vessel, etc., his or their agent or lawful representative, shall, previous to receiving the allowance made by the act, produce to the collector who is authorized to pay the same, the original agreement made with the fisherman employed on board of the vessel, “and also a certificate to be by him or them subscribed, therein mentioning the particular days on which such vessel sailed and returned, etc., to the truth of which he or they shall swear or affirm before the collector aforesaid." The ninth section declares guilty of perjury any person who shall make any false declaration on oath of affirmation, required by this act. It is held that where the owner signs the certificate required by this act, and his agent makes the oath to the certificate, the agent can not be guilty of perjury in making such oath. The seventh section requires that the oath shall be taken by the same person who signed the certifcate. An indictment for perjury, which declares the offense to have been committed on the hearing of a certain complaint against a certain person for piracy " depending before the honorable John Davis, then and ever since being judge of the District Court of the United States for the aforesaid district of Massachusetts, and a magistrate of the said United States," is insufficient, because it does not charge the offense to have been committed in any court of the United States, nor in any deposition pursuant to its laws, as is required by the act of April 30, 1790, on which the indictment is founded, and which punishes aby person who “shall willfully and corruptly commit perjury,

in any controversy, matter of cause, depending in any of the courts of the United States, or in any deposition taken pursuant to the laws of the United States." 4

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§ 1416. Using or Making False Amdavits to Obtain Payment of ClaimClaim Must be Fraudulent as well as Amdavit False. — Under the United States statute punishing the making or using of a false affidavit for the purpose of obtaining the payment or approval of claims against the government, it must be shown to convict not only that the affidavit was false, but also that the claim, the payment of which was sought to be obtained by the use of the affidavit was false, fictitious or fraudulent.5

§ 142. Subornation of Perjury - Party Suborned Acquitted - Suborner not Guilty. In Maybush v. Commonwealth,6 -lhe prisoner was indicted for procuring one Graves to make a false affidavit in order to get a marriage license. He was convicted, but before sentence moved for a new trial on the ground that Graves had been since acquitted of the perjury. “The court is of opinion,” said ANDERSON, J., “that the Commonwealth wholly failed to prove the allegation of the indictment, that the plaintiff in error did willfully, corruptly, and unlawfully

1 Anonymous, 1 Wash. C. C. 84.

2 United States v. Glover, 4 Cranch C. C. 190.

3 United States v. Kendrick, 2 Mason, 69.

4 United States v. Clark, 1 Gall, 497.

6 United States, v. Miskell, 15 Fed. Rep. 369 (1883).

6 29 Gratt. 293.

commit subornation of perjury by procuring John B. Graves to commit willful and corrupt perjury, in the oath which he is before alleged in said indictment to have taken. In order to convict the plaintiff in error of subornation of perjury, it was essential for the Commonwealth to show that the person whom he is alleged to have suborned had committed pejury. But if it had been shown to the contrary that the person alleged to have been suborned had been indicted for the offense of the perjury alleged, and had been tried and acquitted, it would have entitled the plaintiff in error to an acquittal of the offense of subor. nation for which he was indicted. It appears from the plaintiff's third bill of exceptions that after the trial of his case, but while the matter was yet in the breast of the court, he moved the court for a new trial, upon the ground that John B. Graves, the person whom it was charged he had suborned, had been tried upon the charge of perjury after the verdict had been rendered against him, the said plaintiff before the same court, and a verdict of not guilty had been returned, and the said Graves had been discharged; which motion for a new trial the court overruled. If this evidence had been before the jury upon the trial of the plaintiff in error, they would have been bound to have found a verdict in his favor. And inasmuch as in the nature of things the evidence of Graves' acquittal of the perjury charged could not have been given in evidence in that trial, because his trial and acquittal did not occur until afterwards, it was error in the court to overrule his motion for a new trial. We are of opinion, that the court ought to have set aside the verdict and awarded the prisoner & new trial. The court is of opinion, therefore, that for this cause (the overrul. ing the motion of the plaintiff in error for a new trial) the judgment must be reversed, the verdict of the jury set aside, and a new trial awarded the plaintiff in error, and the cause is remanded for further proceedings therein in conformity with this opinion."

$ 143. Subornation of Perjury - Endeavoring to Induce Witness to Swear Falsely in Suit to be Afterwards Brought, Not. - This was held in State v. Joaquin, PETERS, J., saying: “ This indictment alleges that the respondent endeavored to procure another to commit perjury. The substance of the matter alleged is, that the respondent intended to commence a suit, or institute a proceeding, in which the perjury was to be committed. We think the case is not reached by the statute on which the indictment is founded. The true render. ing of the statute is, that a person shall be liable who endeavors to procure a person to swear falsely in a proceeding before any court, tribunal or officer created by law, or in relation to which an oath or affirmation is by law authorized.' The objection is, that the suit or proceeding was not pending. It might never be commenced. Therefore it was an instigation to commit an offense upon a condition or contingency that might never happen. This was rather an ideal than a real offense, morally reprehensible, no doubt, but no such as the law sees fit to notice. The county attorney ingeniously argues that, if the proceeding is pending it may never come on for trial, and that there is no more condition in the way of a suit being brought than there is of its being tried after it is pending in court. But there is a presumption that a case in court is to be tried or disposed of, a presumption of continuance, order or regularity in the course of judicial proceedings, while there is not a presump

1 2 Bish. on Cr. Pr., sec. 879.

2 69 Me. 218.

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tion that a person will consummate a crime that he may have had in contemplation. No doubt, a person could be guilty, under the statute, of endeavoring to incite another to commit perjury where no proceeding is pending, but where the act done would itself constitute a proceeding. A man might be induced to go before a grand jury and falsely swear to a complaint. A pregnant woman might be instigated by another to go before a magistrate and falsely swear to proceedings against a man as the father of her bastard child, expected to be born. In such cases the acts of the foresworn parties would have the effect, per se, to institute proceedings. Mr. Chitty, in his Pleadings, has furnished precedents for such indictments. But here the instigation was not to commence a proceeding by false swearing, but to swear falsely in some proceeding, provided at some time before some court in some form should one be commenced.

Exceptions sustained."

66

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