PERJURY- Continued.

Stewart v. State, p. 370.

authorized to administer the same in the matter or cause wherein it was taken. Indictments for perjury are fatally defective, unless they show that the oath or affirmation was administered by a tribunal or person legally authorized to administer it. It is not necessary, however, to aver the means whereby such authority was acquired, -as for instance, the election, qualification, or commission of a justice of the peace. Id. The office of coroner, eo nomine, or as a distinct official function, has had no existence in this State since the adoption of the Constitution of 1869. An indictment for perjury, therefore, which alleges that the oath was administered by a "coroner" fails to show that it was administered by any lawful authority, and is fatally defective. Id.

One who swears falsely as to his age before an election officer, is not guilty of perjury if the officer himself had not been sworn as required by law. Biggerstaff v. Com., p. 371.

To constitute perjury, the matter sworn to must be material to the issue; and although the particular fact as to which the witness is alleged to have sworn falsely need not be material per se, it must have a direct and immediate connection with some material fact, so as to give weight to the testimony. State v. Hattaway, p. 374.

Where a witness swore to a particular fact which was material and that he was present when it occurred and afterwards when asked where he lived at the time, testified that he lived near the parties, which was proved to be false, it was held that this was too remote from the issue to constitute perjury. Id.

Where, in an indictment for perjury it was alleged that the defendant, during a judicial proceeding, etc., had falsely sworn to certain statements, and then immediately followed an allegation that certain of such statements were untrue, and there was no allegation that the statements, thus alone denied to be true, had been material to the issue on trial, nor did they of themselves appear to have been material: held, that the indictment was demurrable, and should have been quashed. Hembree v. State, p. 376.

An indictment for sending a false and fraudulent affidavit to the pension office must show that the false facts which it contained were material. U. S. v. Corbin, p. 378.

On the trial of an indictment which assigned perjury upon matter not alleged to be material, as well as upon matter alleged material, the court charged the jury as follows: "If in view of what has been said by the court as to the law, and from all the evidence before them, the jury believe that the defendant in San Patricio County, did, as charged, deliberately and willfully make the statement set out in the indictment, or any part thereof, that the jury believe to have been material to the matter before the grand jury, and if such statement or part thereof, is shown (to) have been false when it was made, and if the jury believe the defendant knew it was false when he made it (if he did so), and if they further believe he made such statement before the regular grand iury of this county, as alleged, and under proper oath duly adminis

PERJURY- Continued.

tered to him, then they should find him guilty as charged, and in addidition, assess his punishment at," etc. Held, error, because not confined to such false statements as are alleged material, and therefore properly assigned; and because it authorized the jury to pass upon the the materiality of the alleged false testimony. Donohoe v. State, p. 383.

To constitute perjury, the false statement must have been willfully and and corruptly made. U. S. v. Stanley, p. 388.

Where perjury is charged on a written affidavit, and it appears clearly from several witnesses that the affiant stated the facts truly, and was advised that they were substantially the same as stated in the writing, by lawyer in whom the affiant confided, and he yielded to such influence in taking the oath, it is not perjury, the guilty motive being wanting. Id.

Falsely swearing to a fact to the best of the opinion of the witness, which witness, though without any reasonable cause, believes to be true, is not perjury. Com. v. Brady, p. 391.

To constitute perjury there must be some fact falsely stated with knowledge of its falsity. U. S. v. Moore, p. 392.

On an indictment for perjury, the jury were not told that "they must be satisfied that the defendant swore to a declaration which he at the time knew to be false; and that may be either by swearing to a fact which he knew is not true, or by swearing to his knowledge of the fact when he knew he had no such knowledge." Held, error. Id.

Mere rash and reckless statements on oath are not perjury, quære. Id. An affidavit to a fact does not per se mean that the affiant had personal knowledge of the fact. Id.

Upon the trial of defendant for perjury, in that he had falsely sworn in an action brought against him by one B., that he had paid to B. certain moneys, the non-payment was proved by B. To corroborate B. it was proven that certain receipts of B. produced on the trial of the main action by defendant to prove payment to B. were forgeries. Held, that the evidence as to the receipts did not sufficiently corroborate the single witness as to the perjury, to justify a conviction of that offense. People v. Stone, p. 396.

Evidence that a person had at one time sworn to one state of facts, and afterwards changed his testimony, and, admitting that he had sworn falsely, testified in direct contradiction of his first statement, is not sufficient to justify his conviction. The prosecutor must prove which of the statements is false, and must corroborate the true statement of the prisoner by independent evidence, i.e., by evidence other than his own statements and declarations. Shwartz v. Com., p. 378.

When a bill of sale is made fraudulently and colorably to the bankrupt, if he swears that the property mentioned in it belongs to him, it is perjury. But, if he swears to such ownership from mistake, resulting from a misconstruction of a paper, it would not be perjury. Anony mous, p. 404.

PERJURY- Continued.

If an offense be created by law, and before prosecution, the law be repealed, the offense can not be punished, unless there is a reservation of jurisdiction over the offense in the repealing law. Id.

Under the act of 19th December, 1803, repealing the bankrupt law, there is no reservation for such purpose; and it would only be for perjury committed after the repeal of the law, in cases which, by the authority of the repealing act, may be completed, that an indictment could be sustained. Id.

Perjury committed in proceedings under the bankrupt law, can not be prosecuted under the general criminal law of the United States, the eighteenth section of which applies to perjuries committed in judicial proceedings, whether orally or by deposition. Id.

For a perjury under the bankrupt laws, an indictment will not be supported at common law; because, there must not only be a false oath, but it must be taken in some judicial proceedings, in a matter material to the issue.

Id.

Where the intent or purpose is made part of the offense, as by the act of April, 1866, an intent to defraud the United States is made part of the offense of making false affidavits in certain cases, the indictment must allege the intent to defraud, but need not allege the means, circumstances or methods by which the fraud was to be effected. U. S. v. Wentworth, p. 407.

The act of April 5, 1866, reciting "that if any person or persons shall falsely make, alter, forge, or counterfeit, or cause or procure to be falsely made, altered or counterfeited, or willfully aid or assist in the false making, altering, forgery, or counterfeiting, any bond, bid, proposal, guaranty, security, official bond, public record, affidavit, or other writing, for the purpose of defrauding the United States," such person or persons shall be punished, etc., is aimed at forgery and not perjury. In case of making false affidavits, it is not necessary under this statute, to allege or prove that the justice of the peace before whom they were sworn was qualified to take affidavits. The crime defined by this statute being forgery, it is necessary that the indictment set forth, and profess to set forth, the affidavits literally. A failure to do so is fatal to the indictment. Id.

Valid oath essential, p. 424.

Voluntary and extra-judicial oath, p. 424.

Perjury and false swearing distinguished, p. 426

Court must have jurisdiction of case, p. 429.

Officer must have authority to administer oath, p. 429.

Oath must be required by law, p. 429.

Arbitrator, p. 429.

Assessor, p. 430.

Commissioner of bankruptcy, p. 430.

Grand jury, p. 431.

Other cases, pp. 431, 432.

PERJURY- Continued.

Extra-judicial trial by death of party, p. 431.
Statement must be material, p. 432.

Illustrations, pp. 433-436.

Denial of unenforceable agreement, p. 436.
Incompetency of witness, p. 436.

Testimony must be false and corrupt, p. 436.
Rash and inconsiderate oath, p. 436.

Opinions, erroneous construction, p. 436.

Oath must be willfully false, p. 437.

Mistake of opinion, p. 437.

Oath true in fact, p. 437.
Inconsistent statements, 438.

Signing affidavit with mark, p. 438.

What not perjury under statute, p. 438.

Using false affidavits to obtain claim, p. 439.

"PERSON BEING THEREIN.”

Construed, p. 821.

"PERSON IN THE UNITED STATES POSTAL SERVICE."

Construed, p. 951.

"PERSON LAWFULLY WITHIN THE DWELLING-HOUSE."

Construed, p. 821.

"PERSONAL PROPERTY."

Construed, p. 599.

PETIT TREASON.

Not indictable in United States, p. 253.

PHYSICIAN.

See LIQUOR LAWS.

PIRACY.

Although Congress has the authority to punish piracy though the offenders may be foreigners and committed no acts of violence against the United States, yet under the crimes act of April 30, 1790, the unlawful act must be by or against citizens of the United States in order to constitute piracy. U. S. v. Palmer, pp. 122, 253.

Congress can inflict punishment for offenses committed on board the ves

sels of the United States, or by citizens of the United States anywhere, but Congress can not make that piracy which was not piracy by the law of nations, in order to give jurisdiction to its own courts over such offenses. Id.

The revolted subjects of a foreign government are no more liable to be punished as pirates than are the loyal subjects. A commission is not necessary to exempt a person serving on a ship from conviction as a

PIRACY-Continued.

pirate. It is only necessary to show that war exists and that the vessel is really documented, owned and commanded as a belligerent vessel, and not colorably so for piratical purposes. Id.

What is not piracy, p. 253.

Non-liability of crew of vessel, p. 254.

Transporting military stores to Canada; what not within statute, p. 254.

"PISTOL."

Construed, p. 588.

"PLACE WHERE SPIRITS ARE DISTILLED."

Construed, p. 264.

"POST LETTER."

Construed, p. 266.

POST-OFFICE LAWS.

Section twenty-one one of the post-office Act of 1825, providing a penalty against "any person employed in any of the departments of the postoffice establishment" who "shall unlawfully detain or open any letter, packet or mail of letters with which he shall be intrusted, or which shall have come into his possession, and which are intended to be conveyed by post," applies to letters in transitu, and which have not reached their place of destination. It does not apply to letters withheld from the postmaster by his assistant after they have reached the office of their destination. U. S. v. Pearce, p. 217.

*

Under section twenty-two of the post-office act of 1825, providing a penalty against any person who "shall steal the mail, or shall steal, take from, or out of, any post-office, any letter or packet, whether with or without the consent of the person having custody thereof, and shall open, embezzle or destroy any such mail, letter or packet, the same containing an article of value," a mere taking from the mail, without any criminal intent is not punishable. The taking must not only be unlawful but felonious; it must be clandestine taking — such as would amount to a larceny of personal property. Id.

After the voluntary termination of the custody of a letter by the post-office departments or its agents, the property in and right of possession to the letter belong wholly to its real proprietor, and his rights are under the guardianship of the local law and not of the United States. So where a person embezzles money contained in a letter directed to another person of the same name and delivered by a letter carrier to another for him, he is not guilty under the United States law. U. S. v. Parsons, p. 220.

Stealing a letter by a post-office clerk is not an offense against the United States unless it is a letter committed to the charge of the United States for transportation and delivery. U. S. v. Winter, p. 222.

An errand-boy who is authorized to call for and receive his employer's letters arriving by mail, and who, after receiving such a letter, containing an article of value, embezzles it, can not be convicted under section 22