PERJURY.

See RUSSELL ON CRIMES, b. 5, ch. 1, (2d ed.)||

PERJURY by the common law seemeth to be a wilful false oath by one who, being lawfully required to depose the truth in any proceeding in a court of justice, swears absolutely in a matter of some consequence to the point in question, whether he be believed or not.

Hawk. P. C. c. 69; Chapman v. Gillet, 2 Conn. 40; Lyman v. Wetmore, 2 Conn. 42, note; Harden v. The State, 11 Conn. 408.

Subornation of perjury by the common law is an offence in procuring a man to take a false oath amounting to perjury, who actually takes such oath. But it seems clear, that if the person incited to take such an oath do not actually take it, the person by whom he was so incited is not guilty of subornation of perjury; yet it is certain that he is liable to be punished, not only by fine, but also by infamous corporal punishment.

Roll. Abr. 41, 57; Yelv. 72; Cro. Ja. 158; 2 Keb. 399; 3 Mod. 122; Hawk. P. C. c. 69, § 10.

For the better understanding the nature of perjury, we shall consider, (A) What it is by the Common Law, and how restrained and punished.

(B) How restrained and punished by Statute.

[(C) How charged and assigned.]

(A) What it is by the Common Law, and how restrained and punished. 1st, It is necessary, to constitute the offence perjury, that the false oath be taken wilfully, viz., with some degree of deliberation, and not merely owing to surprise or inadvertency, or a mistake of a true state of the question.

5 Mod. 350. It is perjury when one swears wilfully, absolutely, and falsely, as to a matter he believes, if he has no probable cause for believing. An oath is wilful when taken with deliberation without surprise, inadvertency, or a true state of the question. Commonwealth v. Cornish, 6 Binn. 249; Rex v. Pedley, 1 Leach, C. C. 325.g

2dly, The oath must be taken either in a judicial proceeding, or in some other public proceeding of the like nature, wherein the king's honour or interest are concerned; as before commissioners appointed by the king to inquire of the forfeitures of his tenants, or of defective titles wanting the supply of the king's patents. But it is not material whether the court in which a false oath is taken be a court of record or not, or whether it be a court of common law or a court of equity, or civil law, &c., or whether the oath be taken in the face of the court, or out of it before persons authorized to examine a matter depending in it, as before the sheriff on a writ of inquiry, (a) &c.; or whether it be taken in relation to the merits of a cause, or in a collateral matter, as where one who offers himself to be bail for another swears that his substance is greater than it is, &c. But neither a false oath in a mere private matter, as in making a bargain, &c., nor the breach of a promissory oath, whether public or private, are punishable as perjury.

Hawk. P. C. c. 69, § 3, and several authorities there cited; 1 Term R. 69; Shaffer

(A) What it is by the Common Law, and how restrained and punished. v. Kintzer, 1 Binn. 542; Rex v. Foster, R. & R. 459; S. C. 2 Russ. C. & M. 520; Rex v. Alexander, 1 Leach, C. C. 63; Reg. v. Bishop, 1 Carr. & M. 303; Overton v. The Queen, 3 G. & D. 133. (a) In Calliaud v. Vaughan, 1 Bos. & Pul. 210, the court threw out a doubt, whether a person could be indicted for perjury, given in evidence before a commission to examine witnesses in Scotland. And it has been doubted whether a false oath taken in Doctors' Commons, for the purpose of obtaining a marriage license, amounts to perjury. Vide Russ. on Crimes, 1755. And it has lately been decided that a false oath taken before a surrogate, in order to procure a marriage license, cannot be the subject of a prosecution for perjury; for perjury cannot be charged on an oath taken before a surrogate. And the judges were also of opinion, that as the indictment did not charge that the defendant took the oath to procure a license, or that a license was promised, no punishment at all could be inflicted. Rex v. Foster, Russ. & Ry. Ca. 459; and see Rex v. Verelst, 3 Camp. 431; and Russ. on Cri. vol. i. p. 520, (2d ed.) It seems, however, that if the purpose of the oath is to obtain a license, and the license is obtained, and marriage had, the party may be indicted for a misdemeanor. See 4 G. 4, c. 76, § 23, 24, 25, as to the forfeiture of property by the guilty party obtaining a marriage with a minor by a false oath or fraud; and see tit. Marriage, (C), Vol. VI. In a case where a party was indicted for perjury, in giving evidence on a trial, and it appeared that one of the two plaintiffs in the cause died after issue joined, and the other proceeded to trial, without suggesting his death, according to the stat. 8 & 9 W. 3, c. 11, Lord Ellenborough said, that the action having abated, the evidence was given in an unauthorized cause, and therefore could not amount to perjury. Rex v. Cohen, 1 Stark. R. 511; and vide Rex v. Schoole, Peake's Ca. 112. Though an affidavit cannot, by reason of certain omissions in the jurat, be received in evidence in the Court of Chancery for which it is sworn, yet, if it is false, the party may be indicted for perjury on it; for the perjury is complete at the time of swearing. Rex v. Hailey, Ry. & Moo. Ca. 94.||

3dly, The oath ought to be taken before persons lawfully authorized to administer it; for if it be taken before persons acting merely in a private capacity, or before persons pretending to a legal authority of administering such oath, but having in truth no such authority, it is not punishable as perjury. Yet a false oath taken before commissioners, whose commission at the time is in strictness determined by the demise of the king, is perjury, if taken before such time as the commissioners had notice of such demise; for it would be of the utmost ill consequence in such case to make their ceedings wholly void.

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Hawk. P. C. c. 69, § 4; United States v. Bailey, 9 Pet. 238. See United States v. Clarke, 1 Gallis. 497; Flower v. Swift, 8 N. S. 451; Shaffer v. Kintzer, 1 Binn. 542.g

4thly, The oath ought to be taken by a person sworn to depose the truth; and therefore a false verdict comes not under the notion of a perjury, because the jurors swear not to depose the truth, but only to judge truly of the depositions of others. But a man may be as well perjured by an oath in his own cause, as in an answer in Chancery, or in an answer to interrogatories concerning a contempt, or in an affidavit, (a) &c., as by an oath taken by him as witness in another cause.

Hawk. P. C. c. 69, § 5. ||(a) An attorney ordered to answer the matters of an affidavit, may be indicted for perjury committed in his affidavit in answer; and this, although the affidavit be never used. Rex v. Crossley, 7 Term R. 315.||

5thly, It is not material, whether the thing sworn be in itself true or false, where the person who swears it in truth knows nothing of it.

Hawk. P. C. c. 39, § 6; and see per Lawrence, J., 6 Term R. 619.||

6thly. The oath must be taken absolutely and directly; and therefore if a man only swears as he thinks, remembers, or believes, he cannot be guilty of perjury.(b)

Hawk. P. C. c. 59, § 7. {But see 3 Wils. Works, 116; 2 W. Black, 881, Thomas Miller's case; 3 Wils. 427, S. C.; Leech, C. L. 301, Pedley's case.} (b) But in Miller's case, 3 Wils. 427, 2 Black. R. 881, Lord C. J. De Grey said, that it was VOL. VII.-54 2 N 2

(A) What it is by the Common Law, &c.

a mistake that a person could not be convicted of perjury, who swore that he thought or believed a fact to be true; for that he certainly might. And in the case of the King v. Pedley, 1 Leach, C. Ca. 367. Lord Mansfield confirmed this opinion; and the question appears to have been so decided in the C. P. in Mich. Term, 1780, when Lord Loughborough and all the other judges were unanimous that belief was to be considered as an absolute term, and that an indictment might be supported on it. 2 Hawk. P. C. 88, note (a), (edit. 1795.)||

||An indictment for perjury cannot be sustained upon an assertion, the correctness of which depends on the construction of a deed.

Rex v. Crespigny, 1 Esp. Ca. 281.|}

7thly, The thing sworn ought to be some way material; for if it be wholly foreign from the purpose, or altogether immaterial, and neither any way pertinent to the matter in question, nor tending to aggravate or extenuate the damages, nor likely to induce the jury to give the readier credit to the substantial part of the evidence, it cannot amount to perjury, because it is wholly idle and insignificant; as where a witness introduces his evidence with an impertinent preamble of a story concerning previous facts, no way relating to what is material, and is guilty of a falsity as to such facts. But it seems a reasonable opinion,(a) that a witness may be guilty of perjury in respect to a false oath concerning a mere circumstance, if such oath have a plain tendency to corroborate the more material part of the evidence; as if in trespass for spoiling the plaintiff's close with the defendant's sheep, a witness swears that he saw such a number of the defendant's sheep in the close; and being asked how he knew them to be the defendant's, swears that he knew them by such a mark, which he knew to be the defendant's, where in truth the defendant never used any such mark.

Hawk. P. C. c. 39, § 8. In an indictment for perjury before commissioners of taxes, on an appeal of H against for a surcharge of a greyhound used by H on the 24th of November, it was averred to be a material question whether a receipt for the price of the greyhound was given to the defendant on the 12th of September. When before the commissioners the defendant swore he bought the greyhound of H on the 6th of September, and had a receipt for the price before the 12th. On objection that the sale of the dog was the only material fact, that the receipt was an immaterial fact, and the 12th of September therefore an immaterial day; held, that the receipt was also material, and that it was properly laid to be a material question whether it was given on the 12th of September. Every question on cross-examination of a witness which goes to his credit, is material. Reg v. Overton, 1 Car. & M. 655. [(a) It is not necessary that it appear to what degree the point in which the man is perjured was material to the issue; for if it is but circumstantially material, it will be sufficient. 1 Ld. Raym. 258. Still less is it necessary that the evidence be material for the plaintiff to recover upon; for an evidence may be very material, and yet it may not be full enough to prove directly the point in question. 2 Ld. Raym. 889;] and vide Rex v. Pepys, Peake's Ca. 138. Where a bill was filed against the defendant for specific performance of a parol agreement to purchase land, and the defendant in his answer relied on the statute of frauds, but also denied having entered into the agreement, it was held by Abbot, C. J. that this denial was wholly immaterial, and that an indictment for perjury could not be maintained upon it. Rex v. Dunston, Ry. & Moo. Ca. 109; sed vide Bartlett v. Pickersgill, 4 East, 577, notâ.||

8thly, It does not seem material, whether the false oath were credited or not, or whether the party in whose prejudice it was taken were in the event any ways damaged by it; for the prosecution is not grounded on the damage to the party, but on the abuse of public justice.(b)

Hawk. P. C. c. 39, § 6. (b) But a party injured by the perjury of a witness may proceed against him by action on the case for damages. Per Lord Ellenborough, 1 Camp. 16.||

{Though a plaintiff making an affidavit in a foreign country before a fo

(A) What it is by the Common Law, &c.

reign magistrate, for the purpose of obtaining an order to hold a defendant to bail, cannot be indicted specifically for the crime of perjury in the courts of this country, yet, as far as he is punishable at all, he is punishable for a misdemeanor, in procuring the court to make an order to hold to bail by means and upon the credit of a false and fraudulent voucher of a fact, produced and published by him for that purpose.

8 East, 364, 372, Omealy v. Newell.}

||Although a person making a false affidavit of debt abroad, cannot be indicted for perjury here, yet a person knowingly making use of such affidavit is guilty of a misdemeanor in attempting to pervert public justice.

Omealy v. Newell, 8 East, 364.||

To constitute perjury in swearing to the plea of non est factum, upon a trial before a magistrate, it is necessary that the plea should be in writing and signed by the party who pleads it, as required by the acts of 1817, c. 86, s. 2, and 1819, ch. 27, s. 4.

State v. Steele, Yerg. 1, 394.

One may be indicted for perjury on an affidavit not signed, as if it had been signed.

State v. Ransome, 1 Hayw. 1.

A person who knows that a fact exists, and on oath, knowingly and with an intention to mislead, swears" that if the fact is so, he does not know it," is guilty of perjury.

Wilson v. Nations. 5 Yerg. 211.

If a defendant in his answer in chancery charge certain facts to exist, on which he intends to rely for defence, and swears to the answer in the ordinary form, he swears to the truth of the facts, and not to the fact of the charge; and, if the facts as charged are not true, perjury may be assigned upon it.

Quackenbush v. Van Riper, Sax. Ch. R. 476.

Perjury may be committed in answering a question that has no relation to the issue, if asked with a design to impair the credit of the witness, as to those parts of the case which are material to the issue, particularly if the witness be cautioned as to his answer.

State v. Street, 1 Murph. 124.

Perjury cannot be committed by taking a false oath in a case before a justice of the peace, where he has no jurisdiction.

State v. Alexander, 4 Hawks, 182. See Commonwealth v. White, 8 Pick. 453.

Perjury may be committed in swearing falsely to a collateral matter, with intent to prop the testimony in some other point, but such collateral matter must be material to the point in dispute.

Studdard v. Linville, 3 Hawks, 474.

A mere voluntary oath does not amount to perjury, as where a witness swore before a justice that he attended a certain number of days as a witness in court.

State v. Wyatt, 2 Hayw. 56.

Where by an act of the legislature, oaths are prescribed, and false swearing in taking them is declared perjury, and by a subsequent act the original act is amended and the forms of the oaths are altered, false swearing under

(B) How restrained and punished by Statute.

the amendment is perjury, although it be not so expressly declared in the amended act.

Campbell v. The People, 8 Wend. 636.

A person cannot be punished for perjury in New York, although he may have sworn falsely out of the state of New York before a judge of

that state.

Jackson v. Humphrey, 1 Johns. 498.

The denial in an answer in chancery of the statement in the bill, if wilfully false, amounts to perjury.

Reg. v. Yates, 1 Car. & M. 132.

But perjury cannot be assigned on an answer in chancery, denying a promise absolutely void by the statute of frauds.

Rex v. Benesech, Peake's Add. Cas. 93.g

(B) How restrained and punished by Statute.

By the 5 Eliz. c. 9,(a) it is enacted, "That whoever shall unlawfully and corruptly procure any witness or witnesses by letters, rewards, promises, or by any other sinister and unlawful labour or means whatsoever, to commit any wilful and corrupt perjury in any matter or cause whatsoever depending in suit or variance by any writ, action, bill, complaint, or information in anywise, concerning any lands, tenements, hereditaments, or goods, chattels, debts, or damages in any of the queen's courts of Chancery, Whitehall, or elsewhere, within any of the queen's dominions of England and Wales, or the marches of the same, where any person or persons shall have authority by virtue of the queen's commission, patent, or writ, to hold plea of land, or to examine, hear, or determine any title of lands, or any matter or witnesses concerning the title, right, or interest of any lands or tenements, or hereditaments, or in any of the king's courts of record, or in any leet, view of frankpledge, or law, ancient demesne court, hundred court, court baron, or in the court or courts of the stannary in the counties of Devon or Cornwall; or shall unlawfully and corruptly procure or suborn any witness or witnesses, who shall be sworn to testify in perpetuum rei memoriam, shall for such of fence, being thereof lawfully convicted or attainted, forfeit the sum of 401. And if any such offender, so being convicted or attainted, shall not have any goods or chattels, lands or tenements, to the value of 401., that then every such person shall suffer imprisonment by the space of one half year, without bail or mainprise, and stand upon the pillory the space of one whole hour, in some market town next adjoining to the place where the offence was committed, in open market there, or in the market town itself where the offence was committed."

(a) Made perpetual by 29 Eliz. c. 5, § 2, and 21 Ja. 1, c. 28, § 8.|| At common law, perjury is a felony punishable with death. Hooper v. The State, 5 Yerg. 422.g [The judgment for the pillory need not specify the time when it is to be executed. Rex v. Atkinson, Dom. Proc. July 1, 1785.]

And § 5, it is further enacted, "That no person, being so convicted or attainted, shall from thenceforth be received as a witness in any court of record in any of the king's dominions of England, Wales, or the marches of the same, till such judgment aaainst him shall be reversed by attaint, or otherwise, and that upon every such reversal the party grieved shall recover damages against the party who did procure the said judgment so reversed to be first given.'