If the assignment be on evidence on the trial of a cause, in addition to the production of the record, the previous evidence and state of the cause should be proved, or at least so much of it as shows that the matter sworn to was material. 2 Stark. Ev. 626, 2d ed.

In an indictment for perjury, Patteson, J., held that an averment that "it became and was material to ascertain the truth of the matter hereinafter alleged to have been sworn to, and stated by the said J. G. upon his oath," was not a good averment of materiality. R. v. Goodfellow, Carr. & M. 569.P

Proof of the introductory averments. Where, in order to show the materiality of the matter sworn to, introductory averments have been inserted in the indictment, those averments must, as in other cases, be proved with great accuracy. 2 Russ. by Grea. 624. Where the averment is a descriptive one a variance will be fatal. In an indictment for perjury before a select committee of the House of Commons, it was averred that an election was had for the borough of New Malton, by virtue of a certain precept of the high sheriff of the county, by him duly issued to the bailiff of the said borough of N. M. The precept was directed "to the bailiff of the borough of Malton," and it was objected that this was a variance, but Lord Ellenborough held it not to be matter of description, and that if the precept actually issued to the bailiff of the borough of New Malton, it was sufficient. But the indictment having stated that "A. B. and C. D. were returned to serve as burgesses for the borough of New Malton," this was held to be descriptive of the indenture of return, and the borough being therein styled the borough of " Malton," the variance was held fatal. Leefe's case, 2 Campb. 140. So where upon the trial of an indictment containing an assignment of perjury in the following 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 purporting to have been written by one Kite by his agent, Meyer, on the 13th of August, 1807," &c., (and by other underwriters specified in the indictment,) well knew, &c.; and on production of the policy it appeared to have been underwritten by Meyer for Kite on the 15th; Lord Ellenborough was of opinion, that as the prosecutor had chosen to allege a fact material with reference to the knowledge of the defendant, it was necessary to prove it, and held the variance fatal. Huck's case, 1 Stark. N. P. C. 523.a

But where the introductory averment is not matter of description, it is sufficient to prove the substance of it, and a variance in other respects will be immaterial. Thus where the indictment averred the perjury to have been committed in the defendant's answer to a bill of discovery in the exchequer, alleged to have been filed on a day specified, and it appeared that the bill was filed of a preceding term, Lord Ellenborough ruled that the variance was not material; since the day was not alleged as part of the record, and that it was sufficient *to prove the [*821 ] bill filed on any other day. (1) Huck's case, 1 Stark. N. P. C. 521. And where perjury was assigned on an answer to a bill alleged to have been filed in a particular term, and a copy produced was of a bill amended in a subsequent term by order of the court, it was held to be no variance, the amended bill being part of the original bill. Waller's case, 2 Stark. Ev. 623. So in a similar indictment where it was averred, that Francis Cavendish Aberdeen, and others, exhibited

(1) In an indictment for perjury, the day on which the offence was committed must be precisely stated. United States v. Bowman, 2 Wash. C. C. Rep. 328. United States v. M'Neal, 1 Gallison, 387.

P Eng. Com. Law Reps. xli. 310.

a Id. ii. 495.

* Id. ii. 494.

their bill in the exchequer, and the bill on the face of it purported to be exhibited by J. C. Aberdeen, and others, Lord Ellenborough held the variance immaterial, but that if the indictment had professed to set out the tenor of the bill it would have been a variance. Roper's case, 1 Stark. N. P. C. 528. And upon a motion in arrest of judgment, the court of king's bench held the conviction right. Per Abbott, J. It is no more than addressing a man by a wrong name, which may well happen without causing any uncertainty as to the identity of the person intended to be addressed. 6 M. & S. 327. And again in a similar case, where the bill was stated to have been filed by A. against B. (the defendant in the indictment) and another, and in fact it was filed against B., C., and D., but the perjury was assigned on a part of the answer which was material between A. and B., Lord Ellenborough held the variance immaterial. Benson's case, 2 Campb. 509. See also Bailey's case, 7 C. & P. 264.*

The defendant was tried on an indictment for perjury, committed in giving evidence, as the prosecutor of an indictment against A. for an assault; and it appeared that the indictment for the assault charged, that the prosecutor had received an injury, "whereby his life was greatly despaired of." In the indictment for perjury, the indictment for the assault was introduced in these words, "which indictment was presented in manner and form following, that is to say," and set forth the indictment for the assault at length, and correctly, with the omission of the word "despaired" in the above passage. It was insisted that this was a fatal variance, but the learned judge who tried the case said, that the word tenor had so strict and technical a meaning as to make a literal recital necessary, but that by the words "in manner and form following, that is to say," nothing more was requisite than a substantial recital, and that the variance in the present case was only a matter of form, and did not vitiate the indictment. May's case, 2 Russ. by Grea. 626. Where the indictment stated that an issue came on to be tried, and it appeared that an information containing several counts, upon each of which issue was joined, came on to be tried, the variance was held immaterial. Jones's case, Peake, N. P. C. 37.

answer to a bill in chancery, To prove the amendments, a

The defendant was indicted for perjury in an which had been amended after the answer put in. witness was called, who stated that the amendments were made by a clerk in the six clerks' office, whose handwriting he knew, and that the clerk wrote the word "amendment" against each alteration. Lord Tenterden was of opinion, that this was sufficient proof of the amendments, but did not think it material to the case. Laycock's case, 4 C. & P. 326."

Upon an indictment for perjury committed on a trial at the London sittings, the [*822] indictment alleged the trial to have taken place before *Sir J. Littledale, one of the justices, &c. On producing the record, it did not appear before whom the trial took place, but the postea stated it to have been before Sir C. Abbott, C. J., &c. In point of fact, it took place before Mr. Justice Littledale. Lord Tenterden overruled the objection, that this was a variance, saying-on a trial at the assizes, the postea states the trial to have taken place before both justices; it is considered in law as before both, though in fact it is before one only; and I am not aware that the postea is ever made up here differently, when a judge of the court sits for the chief justice. R. v. Coppard, Moody & Malk. 118. See ante, p. 810, 811.

Where an indictment alleged that the defendant committed perjury on the trial of one B., and that B. was convicted, and it appeared by the record when produced, Eng. Com. Law Reps ii. 494. t Id. xxxii. 505. " Id. xix. 405. ▾ Id. xiv. 210.

that the judgment against B. had been reversed upon error after the bill of indictment against the defendant had been found; it was held by Williams, J. that this was no variance. R. v. Meek, 9 C. & P. 513."

Where an indictment for perjury assigned on an affidavit made for the purpose of setting aside a judgment, since the rule of H. T., 4 Wm. 4, alleged, that the judgment was entered up, "in or as of," Trinity term, 5 Wm. 4,and the record of the judgment, when produced, was dated June the 26th, 5 Wm. 4;" Patteson, J., held this to be a variance, and refused to amend under the 9 Geo. 4, c. 15. Cooke's case, 7 C. & P. 559. An allegation that judgment was "entered up" in an action, is proved by the production of the judgment book from the office in which the incipitur is entered. R. v. Gordon, Carr. & M. 410.

On a charge of perjury alleged to have been committed before commissioners to examine witnesses in a chancery suit, the indictment stated that the four commissioners were commanded to examine the witnesses. The commission was put in, and by it the commissioners, or any three or two of them, were commanded to examine witnesses; this was held by Coleridge, J., to be a fatal variance, and he would not allow it to be amended. R. v. Hewins, 9 C. & P. 786.*

An allegation that the defendant made his warrant of attorney, directed to R. W. and F. B., "then and still being attorneys" of the K. B., is proved by putting in the warrant. Ibid.

Where in an indictment for perjury against C. D. it was averred, that a cause was depending between A. B. and C. D.; Lord Denman, C. J., held that a notice of set-off intituled in a cause A. B. against C. D., was not sufficient evidence to support the allegation. Stoveld's case, 6 C. & P. 489.a

As to what is not a sufficient examined copy of a bill in chancery, see R. v. Christian, Carr. & M. 388.b

Proof of the falsity of the matter sworn.] Evidence must be given to prove the falsity of the matter sworn to by the defendant; but it is not necessary to prove that all the matters assigned are false; for, if one distinct assignment of perjury be proved, the defendant ought to be found guilty. Rhodes's case, 2 Lord Raym. 886; 2 W. Bl. 790; 2 Stark. Ev. 627, 2d ed. And where the defendant's oath is as to his belief only, the averment that he "well knew to the contrary” must be proved. See 2 Chitty, C. L. 312; 2 Russ. by Grea. 643.

*The first observation on this part of the case is, that the defendant [ *823 ] swears to the best of his recollection, and it requires very strong proof, in such a case, to show that the party is wilfully perjured; I do not mean to say that there may not be cases in which a party may not be proved to be guilty of perjury, although he only swears to the best of his recollection; but I should say that it was not enough to show merely that the statement so made was untrue." Per Tindal, C. J., R. v. Parker, Carr. & M. 639.°

An assignment of perjury that the prosecutor did not at the time and place sworn to, or at any other time or place, commit bestiality with a donkey (as sworn to) or with any other animal whatsoever, is sufficiently proved by the evidence of two witnesses falsifying the deposition which had been sworn to by the defendant. Gardiner's case, 2 Moo. C. C. 95; S. C., 8 C. & P. 737.a

To convict a person of perjury before a grand jury, it is not sufficient to show that the person swore to the contrary before the examining magistrate, as non constat which of the contradictory statements was the true one. Per Tindal, C. J., R. v. Hughes, 1 C. & K. 519.

Where the prosecutor gave no evidence upon one of several assignments of perjury, Lord Denman refused to allow the defendant to show that the matter was not false. R. v. Hemp, 5 C. & P. 468.'

Proof of the corrupt intention of the defendant.] Evidence is essential, not only to show that the witness swore falsely in fact, but also, as far as circumstances tend to such proof, to show that he did so corruptly, wilfully, and against his better knowledge. 2 Stark. Ev. 627, 2d ed. In this, as in other cases of intent, the jury may infer the motive from the circumstances. Knill's case, 5 B. & A. 929,(n).

There must be proof that the false oath was taken with some degree of deliberation; for if, under all the circumstances of the case, it appears that it was owing to the weakness rather than the perverseness of the party, as where it is occasioned by surprise or inadvertence, or by a mistake with regard to the true state of the question, this would not amount to voluntary and corrupt perjury. Hawk. P. C. b. 1, c. 69, s. 2; 2 Russ. by Grea. 597; 4 Bl. Com. 137.

Witnesses-number requisite.] It is a general rule, that the testimony of a single witness is insufficient to convict on a charge of perjury. This is an arbitrary and peremptory rule, founded upon the general apprehension that it would be unsafe to convict, in a case where there would be merely the oath of one man to be weighed against that of another. 2 Stark. Ev. 626, 2d ed.; 2 Russ. by Grea. 649; Hawk. P. C. b. 1, c. 69; 4 Bl. Com. 358. But it is said that this rule must not be understood as establishing that two witnesses are necessary to disprove the fact sworn to by the defendant; for, if any other material circumstance be proved by other witnesses, in confirmation of the witness who gives the direct testimony of perjury, it may turn the scale and warrant a conviction. Lee's case, 2 Russ. by Grea. 650. So it is said by Mr. Phillipps, that it does not appear to have been laid down that two witnesses are necessary to disprove the fact sworn to by the defendant; nor does that seem to be absolutely requisite; [*824 ] that at least one witness is not sufficient; and, in addition to his testimony, some other independent evidence ought to be produced. (1) 1 Phill. Ev. 141, 6th ed.

A distinction, however, appears to be taken between proving positive allegations in the indictment, and disproving the truth of the matter sworn to by the defendant; the latter, as it is said, requiring the testimony of two witnesses. Thus Mr. Serjeant Hawkins says, that it seems to be agreed that two witnesses are required in proof of the crime of perjury; but the taking of the oath and the facts deposed

(1) State v. Hayward, 1 Nott & M'Cord, 547. Coulter v. Stewart, 2 Yerger, 225. Merrit's case, 4 Rogers's Rec. 58. Case of Francis et al, id. 12.

The cases in which a living witness to the corpus delicti of the defendant, in a prosecution for perjury may be dispensed with, are: all such where a person, charged with a perjury by false swearing to a fact directly disproved by documentary or written testimony, springing from himself, with circumstances showing the corrupt intent. In cases where the perjury charged is contradicted by a public record, proved to have been well known to the defendant when he took the oath, the oath only being proved to have been taken. In cases where the party is charged with taking an oath contrary to what he must necessarily have known to be the truth; and the false swearing can be proved by his own letters relating to the fact sworn to, or by other written testimony existing and being found in the possession of the defendants, and which has been treated by him as containing the evidence of the fact recited in it. U. S. v. Wood, 14 Peters, 430.

may be proved by one witness only. (2) Hawk. P. C. b. 2, c. 46, s. 10. So it is said by Mr. Starkie (citing the above passage from Hawkins) that it seems the contradiction must be given by two direct witnesses; and that the negative supported by one direct witness and by circumstantial evidence, would not be sufficient. He adds, that he had been informed that it had been so held by Lord Tenterden. 2 Stark. Ev. 626,(n.)

In Champney's case, 2 Lew. C. C. 258, Coleridge, J., said, "One witness in perjury is not sufficient, unless supported by circumstantial evidence of the strongest kind; indeed Lord Tenterden was of opinion, that two witnesses were necessary to a conviction." See Mudie's case, 1 Moo. & R. 128. The rule, that the testimony of a single witness is not sufficient to sustain an indictment for perjury, is not a mere technical rule, but a rule founded on substantial justice; and evidence confirmatory of that one witness, in some slight particulars only, is not sufficient to warrant a conviction. Per Coleridge, J., R. v. Yates, Carr. & M. 132. Where there were three assignments of perjury upon evidence relating to one and the same transaction, at one and the same time and place, it seems to have been considered that the jury ought not to convict on one of the assignments, although there were several witnesses who corroborated the witness who spoke to such assignment, on the facts contained in the other assignments. R. v. Verrier, 12 Ad. & E. 317; 2 Russ. by Grea. 651,(n). And it has since been held, by Tindal, C. J., that the rule which requires two witnesses, or one witness and some sufficient corroboration, applies to every assignment of perjury in an indictment. R. v. Parker, Carr. & M. 639; S. C., 2 Russ. by Grea. 654.

In a case of perjury on a charge of bestiality, the defendant swore that he saw the prosecutor committing the offence, and saw the flap of his trowsers unbuttoned. To disprove this, the prosecutor deposed that he did not commit the offence, and that his trowsers had no flap; and to confirm him, his brother proved that at the time in question the prosecutor was not out of his presence more than three minutes, and his trowsers had no flap. This was held by Patteson, J., to be sufficient corroborative evidence to go to the jury, who found the defendant guilty. R. v. Gardiner, 2 Moo. C. C. 95. 8 C. & P. 737.*

But where a statement by the prisoner himself is given in evidence, contradicting the matter sworn to by him, it has been held not to be necessary to call two witnesses to prove the falsity; one witness, with proof of the admission, being sufficient. The defendant made information, upon oath before a justice of the peace, that three women were concerned in a riot at his mill (which was dismantled by a mob, on account of the price of corn;) and afterwards, at the sessions, when the rioters were indicted, he was examined concerning those women,

(2) On a trial for perjury, the testimony of a single witness is sufficient to prove that the defendant swore as is alleged in the indictment. Commonwealth v. Pollard, 12 Metcalf, 225. In order to authorize a conviction of perjury, it is necessary, in addition to the testimony of one witness to the falsity of the statement alleged as the perjury, that strong corroborating circumstances, of such a character as clearly to turn the scale, and overcome the oath of the party charged and the legal presumption of his innocence, should be established by independent evidence: and therefore when the charge in an indictment for perjury, was that the defendant had testified, that no agreement for the payment by him of more than the lawful rate of interest had ever been made between him and a person to whom he was indebted, upon certain contracts; it was held that the testimony of the creditor to the existence of such an agreement, corroborated by the letters of the defendant to him containing a direct promise to pay more than legal interest on a demand thus held-was competent and sufficient evidence of the falsity of the statement alleged as the perjury. Commonwealth v. Parker, 2 Cushing, 212. Eng.C. L. Reps. xli. 77. i Id. xl. 48.

J Id. xli. 346.

* Id. xxxiv. 611.