affidavit made by a homestead claimant in pursuance of a regulation promulgated by the Secretary of the Interior and by the officers of the Land Department, but which was not authorized or demanded by any law of the United States, could not be the predicate for the successful assigning of perjury. The Court observed that there was a distinction between legislative and administrative functions and that under a statutory power to make regulations an administrative officer could not abridge or enlarge the conditions imposed by statute.

The bankruptcy statute authorizes the making of schedules under oath and the examination of the bankrupt and various other under-oath proceedings, and perjury committed in any of such examinations or disclosures is venal. Daniels vs. U. S., 196 Federal, 459. Ulmer vs. U. S., 219 Federal, 641; U. S. vs. Rosenstein, 211 Federal, 738; oaths made in the various steps of a patent application are corrupt. Patterson vs. U. S., 202 Federal, 208; a notary public is a competent officer or tribunal and authorized to administer oaths. Patterson vs. U. S., 202 Federal, 708. But the affidavit required under Section 4886 by an inventor may not be enlarged by the Commissioner of Patents so as to make an assignment of perjury possible under such enlarged order. Patterson vs. U. S., 181 Federal, 970. An importer is guilty of perjury in making an affidavit which was untrue with reference to concealed or suppressed articles which were subject to duties, U. S. vs. Salen, 216 Federal, 420.

Grand jurors have authority to administer oaths and false testimony is perjury. Brzezinski vs. U. S., 198 Federal, 65.

A United States Commissioner is authorized to administer oaths as demanded by this statute. Cohen vs. U. S., 214 Federal, 23.

§ 102. In the following cases, perjury has been successfully laid:

False oath by a director of a national bank, before a notary public. United States vs. Neal, 14 Federal, 767.

Affidavit of an applicant for an entry to land, made before the Clerk of the County Court, United States vs. Hearing, 26 Federal, 744.

False oath under the Timber Culture Act, which authorized the oath to be administered in the District where the

land is situated. United States vs. Madison, 21 Federal, 628; United States vs. Shinn, 14 Federal, 447.

False swearing in an affidavit made before a Justice of the Peace, in conformity to a regulation of the Secretary of the Treasury. United States vs. Bailey, 9 Peters, 238.

Also where oath is administered by state officer authorized by the usage of the Treasury Department, when Congress required an oath to be made. United States vs. Winchester, 2 McLean, 135.

An affidavit made before a Justice of the Peace, to support a pension claim. United States vs. Boggs, 31 Federal, 337. An affidavit made before a notary public, in support of an application for pension. Noah vs. United States, 128 Federal, 270; also Williamson vs. United States, U. S. Supreme Court, October Term, 1907.

Officer of the General Land Office of the United States, hearing a contest with respect to a homestead entry, in accordance with the rules promulgated by the Interior Department, constitutes a competent tribunal. Caha vs. United States, 152 U. S., 211.

A verification of a cashier of a national bank, of a report of the condition of the bank. United States vs. Bartow, 10 Federal, 873.

Judge Speer, in United States vs. Hardison, 135 Federal, 419, held that where a defendant swore falsely as to his qualifications to become a surety on a distiller's bond, before a Deputy Internal Revenue Collector, he was properly charged with perjury, even though the oath thereto was taken before a United States Commissioner.

In United States vs. Patterson, 172 Federal, 241, Judge Woolverton held that a wilful false statement in an oath to an application for patent, made as required by Section 4892 of the Revised Statutes, that the applicant verily believes himself to be the original, first, and sole inventor of the device for which the patent is sought, is of a material matter, and constitutes perjury.

In United States vs. Voltz, 14 Blatchf., page 15, the Court held that the qualification of a surety to a bail bond is a case within the meaning of the perjury section, and upon which perjury can be based.

In Brace vs. United States, 149 Federal, 871, a land affidavit is sufficient, as the foundation for a perjury prosecution.

Naturalization affidavits, in Schmidt vs. U. S., 133 F., 257, and U. S. vs. Dupont, 176 F., 823.

§ 103. Materiality and Wilfulness.-The indictment must aver unmistakably the materiality of the oath, and the wilfulness of the falsification. U. S. vs. Ammerman, 176 Federal, 636. A false statement, declaration, or testimony, upon a collateral issue, will not sustain perjury, and neither will mistake or innocent falseness make one guilty of the offense.

It is sufficient to charge generally that the false testimony was in respect to a matter material to the issue, without setting out the facts from which such materiality appears. If, however, the facts are also stated, and it clearly appears that the testimony was not material, a formal allegation of materiality will not save the indictment. United States vs. Pettus, 84 Federal, 791. So, also, where in an indictment for perjury it is apparent from the averments that the evidence which is charged to be false was material, it is not essential to state the legal conclusion by alleging that the evidence was material. The Court being apprised of the facts, may draw the conclusion without the allegation. So, also, where the averments as to the materiality of what is alleged to have been sworn falsely are defective, the indictment is, nevertheless, good, if such materiality sufficiently appears on its face. 30 Cyc., 1435.

§ 103a. Materiality, Continued. In Hogue vs. U. S., 184 Federal, 245, the Court held that even though there was a general allegation of materiality and, thereafter an attempt to set forth the facts, such facts must in themselves show materiality, and in the absence of such showing the indictment would be held defective. Complying with this rule, a new indictment was drawn in that case and it was subsequently affirmed in Hogue vs. U. S., 192 Federal, 918. I am firmly of the opinion that it is the law as supported by the vast majority of decisions that the indictment must allege the materiality of the statement complained of which may be done by a simple allegation or by pleading the facts from which

the Court may determine its materiality. U. S. vs. Salen, 216 Federal, 420; Ammerman vs. U. S., 185 Federal, 1.

The Circuit Court of Appeals, in Ammerman vs. U. S., 185 Federal, page 1, in which they reversed the same case shown in 176 Federal, 635, announced the doctrine contended for here, that is to say, that it must be alleged in the indictment that the matter sworn to was material or the facts set forth as false must be sufficient in themselves to show such materiality. U. S. vs. Nelson, 199 Federal, 464; U. S. vs. Rhodes, 212 Federal, 518; Markham vs. U. S., 160 U. S.,. 325. If an indictment alleges materiality but thereafter shows that the alleged false statements were not material, then no offense is plead; U. S. vs. Rose, 212 Federal, 518. A general averment of materiality is sufficient. Baskin vs. U. S., 209 Federal, 740; Hendricks vs. U. S., 223 U. S., 178.

§ 104. Sufficiency of Indictment.-As before noticed, great particularity was required at Common Law; and while proceedings of the Federal Courts are assimilated to the Common Law forms, all Federal crimes are statutory, and the Common Law rules in passing upon the sufficiency of a perjury indictment in the Federal Court would necessitate the same strictness with reference to its proper alleging as did the Common Law, but Congress provided a saving statute in Section 5396 of the old statutes, which is still the law, and reads as follows:

"In every presentment or indictment prosecuted against any person for perjury, it shall be sufficient to set forth the substance of the offense charged upon the defendant, and by what court, and before whom the oath was taken, averring such court or person to have competent authority to administer the same, together with the proper averment to falsify the matter wherein the perjury is assigned, without setting forth the bill, answer, information, indictment, declaration, or any part of any record or proceeding, either in law or equity, or any affidavit, deposition, or certificate, other than as hereinbefore stated, and without setting forth the commission or authority of the court or person before whom the perjury was committed."

The ordinary rules of criminal pleading, and the above statute being clearly in mind, all that is necessary under the Federal statute is to draw the bill in such plain and intelligible terms, and with such particularity as to apprise the accused

with reasonable certainty of the offense for which he is sought to be punished, and state the substance of the controversy upon which the false oath was taken, specify the Court or officer by whom it was administered, aver or show that such Court or officer had authority to administer an oath, allege the falsity of the oath, and assign perjury thereon. Noah vs. U. S., 128 Federal, 270; U. S. vs. Cuddy, 39 Federal, 696; U. S. vs. Walsh, 22 Federal, 622; Markham vs. U. S., 160 U. S., 319, 40 Law Ed., 441, 30 Cyc., 1425. This section demands that the oath must have been wilful, and an allegation that it was corruptly taken is not sufficient. The indictment must allege that the oath was wilfully taken. United States vs. Edwards, 43 Federal, 57; U. S. vs. Lake, 129 Federal, 499; United States vs. Hearing, 26 Federal, 744. Wilfulness and a corrupt intent being essential elements of the crime of perjury, evidence to prove such issues goes to the very substance of the offense, and is, therefore, admissible. All of the record, including the judgment of the case in which the perjury is alleged to have been committed, is, therefore, admissible upon the question of motive. If perjury were committed by one in his own defense in the trial of a criminal case, the indictment and judgment would be admissible, not for the purpose of showing that the defendant had been convicted of an offense, but for the purpose of showing his motive to testify untruly in the original case; but it is thought that the Court should limit the consideration of the judgment by proper instructions, to the consideration of motive alone, or inducement, as some authorities put it. A judgment so introduced and so restricted by the Court, is material and competent. In United States vs. Berkhardt, 31 Federal, 141, the trial Court set aside a judgment of conviction of perjury, because he had admitted the judgment in the original case for all purposes, and without limiting it. Wharton, Criminal Evidence, Section 602a. The same rights that exist in favor of the prosecution to show the corrupt motive and wilfulness are equally pertinent for the defense, and it is at all times admissible and competent for him to show the lack of corrupt motive, or to rebut the existence of such a motive.

§ 105. Proof.-Perjury must be proven by two witnesses, or by one witness and corroborating circumstances, and the