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certificate shall be given in evidence upon any trial to be had against any person upon a prosecution so directed as aforesaid.

Note. The act declares, that in an indictment for perjury it shall be sufficient to set forth the following matters: The substance of the offence-by what court, or before whom, the oath was taken-an averment that such court or person has a competent authority to administer the same an averment to falsify the matter wherein the perjury is assigned. It will, therefore, be convenient to consider the indictment for perjury under these heads. The substance of the offence consists in the actual false swearing, together with those circumstances which, of necessity, accompany the act, as the time, place, &c., and those which, in judgment of law, make the offence perjury. 1. As to the false swearing: it seems that in all cases it should be averred positively and distinctly that the defendant was sworn, and deposed, &c. Therefore, in an indictment in which perjury was, by the first count, charged to have been committed at a trial therein mentioned, and another count alleged that, at the trial, the defendant was found guilty, "by means of the false and material testimony of the defendant in the first count mentioned," and that a rule nisi for a new trial was granted, and that the defendant, knowingly, falsely, wilfully, and corruptly, made affidavit that the evidence given by him at the trial was true, "whereas it was false in the particulars in the first count assigned and set forth;" this latter count was held bad, for not averring distinctly that the defendant was sworn as a witness, and deposed to certain facts at the trial, instead of leaving it to be taken by intendment: R. v. Stevens, 5 B. & C.

246.

But it should be remarked that, in this case, the first count was

also held to be bad: see, upon the same point, R. v. Richards, 7 D. & R. 665. However, it is sufficient to allege in the indictment that the defendant was duly sworn: R. v. M'Carthur, Peake, 155. And where the indictment averred that the defendant was sworn on the holy gospel of God, proof that the defendant was sworn and examined as a witness was held sufficient to support the averment: R. v. Rowley, R. & M. N. P. C. 302. In a case where it was averred that he was sworn on the gospels, and he appeared to have been sworn according to the custom of his own country, this was considered as a variance, which would have been fatal had not the indictment been saved, by proof that he was previously sworn in the ordinary mode, ib.: sed. qu., for how can perjury be assigned upon an oath which the defendant conscientiously does not consider binding? It is proper to aver that the defendant falsely swore, &c., 2 M. & S. 385; but an indictment at common law, alleging that the defendant falsely, maliciously, wickedly, and corruptly swore, &c., without saying wilfully, has been held to be sufficient, on the grounds that the former words include the latter; but the word wilfully is essential on an indictment on the statute of Elizabeth: Cox's case, 1 Leach, 83, 71, 4th ed.. the words wilfully and corruptly cannot both be omitted in the indictment: R. v. Stevens, 5 B. & C. 246.

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2. The time. The time is sometimes material and necessary to be laid with precision, and sometimes not: R v. Aylett, 1 T. R. 69. Thus, where an indictment for perjury, in an answer in the Exchequer, alleged that the bill was filed on the

1st day of December, but, on its production, it appeared to be entitled generally of the preceding Michaelmas term, as is the practice when a bill is filed in the interval between two terms, this was held to be no variance, because the day was not alleged as part of the record: R. v. Hucks, 1 Stark. 521. But, where the time is material with reference to the crime of the defendant, as, for instance, with reference to his previous knowledge of a fact, which knowledge he subsequently denies on oath, the time must be proved as laid. Therefore, where the assignments of perjury were alleged in this form, "whereas, in truth and in fact, the said defendant, at the time of effecting the said policy, that is to say, a certain policy of insurance, purporting to have been underwritten by

Kite, by his agent Meyer, on the 13th of August, 1807, &c. (and by other writers specified in the indictment), well knew, &c. ;" and, on the production of the policy, it appeared that it had been underwritten by Meyer for Kite on the 15th of August, the variance was held fatal: R. v. Hucks, 1 Stark. 524.

3. The place. The place where the perjury is alleged to have been committed must be that to which a venire may reasonably be awarded. Therefore, an indictment for perjury, laying the offence to have been committed "at the Guildhall of the city of London," is bad: Harris's case, 2 Leach, 929. For an enumeration of the places from which a venue may come, see 2 Haw. P. C. 182. But so long as the indictment is laid within the proper county, the parish is immaterial: R. v. Taylor, Holt, 534. And if a proper venue be laid to the very fact of taking the false oath, that is sufficient, without stating where the court was held at the time that the necessary previous

proceedings were had in the same matter: R. v. Crossley, 7 T. R. 315. 4. The circumstances which,injudg ment of law, make the offence perjury.-These are not merely implied under the words "substance of the offence," but many of them are expressly mentioned by the act. Of those which are implied, the most essential appears to be that the matter sworn to was material to the question depending: R. v. Aylett, 1 T. R. 19. But, though an allegation of this fact is essential, yet it is not necessary to set forth so much of the proceedings of the former trial as will show the materiality of the question on which the perjury is assigned; it is sufficient to allege generally that the particular question became a material question: R. v. Dowlin, 5 T. R. 311. On the other hand, if the materiality appear on the record, it is unnecessary to aver it, T. P. C. 139, though it is most usual to do so.

By what court, or before whom the oath was taken; an averment that such court or person has a competent authority to administer the same.That the oath was taken before a court of competent jurisdiction is, therefore, one of those circumstances necessary to constitute perjury, which is expressly alluded to by the act. What are competent courts for the purpose of administering oaths is a point which will be noticed presently. An indictment for perjury in a cause tried at the assizes has been holden good, although it alleged the oath to have been taken before one only of the judges in the commission, whereas the names of both judges were, as usual, inserted in the nisi-prius record: R. v. Alford, 1 Leach, 150. But in a case where it appeared that there were two commissions for a place, one to deliver the gaols, and the other assigning the justices "to be as well justices in eyre as justices to hold

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all assizes, juries, certificates, and attainders, before any of the king's justices arraigned, and also to hear and determine all pleas of the crown, and all other pleas and complaints,' and the indictment stated the perjury to have been committed at the assizes, before justices assigned to take the said assizes, before A. B., one of the said justices, the said justices then and there having power, &c.; whereas it was proved that the oath was administered when the judge was sitting under the commission of oyer and terminer and gaol delivery, the variance was held to be fatal: R. v. Lincoln, R. & R. 421.

An averment to falsify the matter wherein the perjury is assigned.-Under this head may be considered the statements necessary to explain the assignment of perjury, and the assignment of perjury itself. By way of inducement, it will be sufficient to state so much as renders intelligible the assignment of the perjury. Thus, it is sufficient to state that a certain cause had arisen, and was depending, and came on to be tried in due form of law, or that at such a court J. K. was, in due form of law, tried on a certain indictment then and there depending against him for murder, and that the perjury was committed on the trial either of the civil or criminal proceeding: 2 Chit. Cr. L. 308, R. v. Dowlin, 5 T. R. 318. The matter on which the assignment of perjury is made, need not be prefaced with the words, "to the tenor and effect following," or other expressions which compel an exact recital, but it should rather be, "in substance and to the effect following," or, "in manner and form following, that is to say," which allow of a greater latitude: ib.; and see Beech's case, 1 Leach. 133; May's case, 2 Russ. 1785. But, even with the latter modes of expression,

great accuracy is required, and any error, beyond a mere error in form, will make a fatal variance. Therefore, where an indictment stated that the defendant went before a

justice of the peace, and swore in substance and to the effect following, that is to say, &c., and part of the deposition so set forth, was, that a person therein named assaulted the deponent with an umbrella, and, at the same time, threatened to shoot her with a pistol, but, upon the deposition being produced, it appeared to run thus, "and at the same threatened to shoot," &c., omitting the word "time," the variance was considered fatal, though, perhaps, the omission might have been helped by an innuendo: R. v.Taylor, 1 Camp. 404. So, also, if in an indictment for perjury before a committee of the House of Commons, on an election petition, it be stated that A. B. and C. D. were returned to serve as burgesses for the said borough of New Malton, and the indenture, when produced, describes them as returned for Malton, the variance will be fatal: R. v. Leefe, 2 Camp. 141. If an indictment for perjury undertake to set out continuously the substance and effect of what the defendant swore, it is necessary to prove that in substance and effect he swore the whole of that which is thus set out, though the indictment contains several distinct assignments of perjury: S. C. For other cases of variance in indictments for per jury, see R. v. Carter, 6 Mod. 168; R. v.Griefe, 1 Lord Raym. 260; R. v. Sevole, Peake, 112; R. v. Eden, 1 Esp. 97; R. v. Roper, 1 Stark. 518; R. v. Aylett, 1 T. R. 63; R. v. Israel, 1 D. & R. 244; R. v. Dudman, 7 D. & R. 324; Lookup v. R., 4 Bro. P. C. 332; R. v. Dunn, 1 D. & R. 10; R. v. Coppard, 3 C. & P. 59. An indictment for perjury, assigned on an affidavit sworn before

the court, need not state, nor is it necessary to prove, that the affidavit was filed of record, or exhibited to the court, or in any manner used by the party: R. v. Copley, 7 T. R. 315. In setting forth on the record the matter on which the assignment of perjury is made, recourse is frequently had to innuendoes. The use of innuendoes has been touched upon, ante; see tit. "Libel."

After stating accurately the matter sworn to by the defendant, the indictment should proceed to assign the perjury. But a general averment that the defendant falsely swore, &c. upon the whole matter, is not sufficient: the indictment must proceed, by particular averments, to negative that which is false R. v. Perrott, 2 M. & S. 385. Upon this principle, it has been held that, if an insolvent debtor has sworn that his schedule contains a full, true, and perfect account of all debts owing to him, at the time of his petitioning for his discharge; an assignment of perjury on that oath, stating, that "whereas in truth and in fact, the said schedule did not contain a full, true, and perfect account, &c." (in the words of the oath) is too general; for it ought to state what debt he is charged with omitting: R. v. Hepper, 1 C. & P. 608. The truth of the defendant's oath is usually negatived in different ways; and, when the defendant swears only to belief, it may be proper to aver "that he well knew the contrary of what he swore :" 2 Chit. Cr. L. 312; 4 Wentw. 231. After the perjury has been assigned, the indictment usually concludes "that so the defendant did commit wilful and corrupt perjury;" but it should seem that the conclusion of law from the premises is immaterial: 2 Chit. Cr. L. 312; 1 ejusd. 232; 2 Leach, 856. It may here be ob

served, that, as every indictment or information must contain a precise charge of a specific fact, it cannot state two contradictory oaths, and then conclude that " so the defendant committed wilful and corrupt perjury," without any averment to falsify either of the oaths. Therefore, where a man swore to a fact before a committee of the House of Commons, and afterwards swore directly the contrary before a committee of the House of Lords, an information setting out the substance of his evidence on both occasions, and concluding " and so," &c. was holden bad: R. v. Harris, 5 B & A. 926. In cases of this nature, the indictment may with proper averments assign the perjury upon one of the oaths only, and the defendant may justly be committed, without any other proof of the perjury, than producing and proving the other deposition which he made, in contradiction to that on which the perjury is assigned: S. C. in notis. It may be observed, lastly, that the court will in general refuse to quash an indictment for perjury, however defective, and compel the defendant either to plead or demur: 2 Haw. P. C. c. 25, 146; but see R. v. Thomas, 3 D. & R. 621. Nor will they grant a certiorari to remove it, unless strong ground-be shewn for the application: 2 Haw. P. C. c 27, s. 28.

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To proceed to a few observaticus on the crime of perjury itself; which is thus defined by Lord Coke : Perjury is a crime committed when a lawful oath is ministered by any that hath authority, to any person, in any judicial proceeding, who swears absolutely and falsely in a matter material to the issue or cause in question, by their own act, or by the subornation of others:" 3 Inst. 164. It appears, therefore, first, that the oath must be lawful; that is, such as is allowed by the

common law or by statute: id. The oath must also be public, and must affirm or deny some matter of fact, contrary to the knowledge of the party. It therefore does not extend to promissory oaths, and consequently no officer who neglects to execute his office in pursuance of his oath, or who acts contrary to the purport of it, is indictable for perjury in respect of such oath: 1 Haw. P. C. c. 27, s. 3; 3 Inst. 166. Again, when the supposed perjury depends upon what may fairly be considered as matter of judgment only-as, for instance, the construction of a deed, an indictment for perjury cannot be maintained: R. v. Crespigny, 1 E. Sp. 281. However, when there is a guilty intention, there can be no doubt that false swearing, not strictly amounting to perjury, constitutes a species of misdemeanor, and is punishable as such: Ex parte Overton, 2 Rose, 257; Omealy v. Newell, 8 East, 364.

Secondly, the oath must be administered by a court or person having authority. Therefore, no false swearing before individuals acting merely in a private capacity, or before officers who have no legal jurisdiction to administer the particular oath in question, will amount to perjury: 2 Chit. Cr. L. 304; Paine's case, Yelv. 111. But all false oaths taken before those who are intrusted with the administration of public justice, in relation to any matter before them in debate, are perjuries. Therefore,perjury may be committed either in a court of record, or court of equity, or spiritual court, or court baron, or any other lawful court, whether it be of record or not: 1 Haw. P. C. c. 27, s. 3; 1 Leach, 50; Anon. 1 Sid. 454. It may also be committed, though the oath be taken in a stage of the proceedings, when it does not influence the final judgment, but only affects some intermediate step to be taken, 2 Chit.

Cr. L. 308; as in justifying bail, Cro. Car. 146. So, also, it is perjury to swear falsely before a sheriff on a writ of inquiry for assessment of damages, 1 Haw. P. C. c. 27, s. 3; or in an affidavit to bold to bail, Peake, 112; and in many other cases mentioned in the various statutes: see post. But it has been doubted whether an indictment lies for perjury on a deposition taken de bene esse, 1 P. W. 568; and it has been decided, that a false oath taken before a magistrate, in order to procure a marriage licence, will not support a prosecution for perjury: R. v. Foster, R. & R. 459. And, generally, where an oath is required by an act of parliament, but not in a judicial proceeding, the breach of that oath does not seem to amount to perjury, unless the statute enacts that such oath, when false, shall be perjury, or shall subject the offender to the penalties of perjury: 4 Blac. Comm. 137, Christian's ed. in notis.

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Thirdly, the oath must be taken in a judicial proceeding. Therefore, no oath whatsoever, in a private matter, however wilful or malicious it may be, is punishable as perjury in a criminal prosecution: 1 Haw. P. C. c. 27, s. 3. And, moreover, the judicial proceeding must be regular; for where the false oath is taken in an unauthorized cause, the swearing does not, in the eye of the law, amount to perjury. If, therefore, upon the death of a co-plaintiff, after issue joined, the trial proceed without a suggestion of such death on the record, according to 8 & 9 W. 3, c. 11, the trial being extrajudicial for want of this formality, no perjury can be assigned upon any false evidence given at such trial: R. v. Cohen, 1 Stark. 511. But, if the oath be made in a judicial proceeding, it matters not on whose behalf it is made; and, therefore, it is the

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