A Treatise on Criminal Law as Applicable to the Dominion of Canada

tion of the Court. (a) But perjury may be assigned upon a man's testimony as to the credit of a witness. (b) So every question, in cross-examination, which goes to the witness's credit, as whether he has before been convicted of felony, is material for this purpose. (c)

In R. v. Tyson (b) a doubt was however expressed by Kelly, C. B., and Byles, and Lush, J. J., whether a false statement, which goes only to the credit of the person making it, can be the subject of an assignment of perjury. (d)

Upon the trial of one S. for robbery, the prisoner, in support of an alibi, swore, first, that S. was in a certain house at the time of the robbery; secondly, that S. had lived in that house for the last two years; and, thirdly, that he had never been absent from it more than two or three nights together during that time. In fact, S. had been confined in prison during one of these two years:Held, that the second and third allegations were material, as tending to render more credible the truth of the first, and that the prisoner was rightly convicted of perjury assigned upon them. (e)

Where a prisoner, charged with robbery before a Magistrate, having cross-examined the prosecutor, whether he had not, the day before that of the alleged robbery, met him (the prisoner) in company with M., and proposed to him to commit a burglary, and the prosecutor having denied this, the prisoner called M. to prove it, the Court held that M.'s evidence was not material to the

(a) R. v. Griepe, 1 Ld. Raym, 256; R. v. Nichol, 1 B. & Ald. 21; R. v. Townsend, 10 Cox, 356; 4 F. & F. 1089; Arch. Cr. Pldg. 816.

(b) 2 Salk. 514.

(d) See also R. v. Gibbons, L. & C. 109; 31 L. J. (M. C.) 98; Arch. Cr. Pldg. 817.

(e) Reg. v. Tyson, L. R. 1 C. C. R. 107; 37 L. J. (M. C.) 7; 16 W. R. 317.

issue, so that it could be made the subject of an indictment for perjury. (a)

On the trial of A. for perjury in an affidavit made by him, and used on the taxation of costs, the signature to the affidavit was proved to be in A.'s handwriting, but the Commissioner, who had administered the oath, was unable to identify A., as the person who made the affidavit. B. was therefore called as a witness, and swore that the affidavit was used before the taxing-master, when A. was present, and that it was then publicly said that it was A.'s affidavit. B. was afterwards indicted for perjury on A.'s trial, and it was held that the above evidence, given by him on that trial, was material as corroborative evidence of the affidavit having been made by A. (b) On the trial of an action of trover the plaintiff's case was that the defendant had tricked him out of the goods, the subject of the action, while the plaintiff was drunk. The defendant's case was that he had fairly bought the goods from the Plaintiff, who had sent for the goods from a railway station, where they were lying, had signed a delivery note for them, and had then sold them to the defendant. The defendant, who was called as a witness in support of his own case, swore that the plaintiff's name on the delivery note was plaintiff's writing, and that he saw him write it. It was held that this evidence was material to the issue, and, upon which, therefore, perjury might be assigned; the question in the action being, whether the plaintiff had been imposed on by a fraud while drunk, and it, therefore, became essential to ascertain, whether the handwriting on the delivery note, was his, as a step in ascertaining whether or not he was drunk at the time of the transaction. (c)

(a) R. v. Murray, 1 F. & F. 80.

(b) Reg. v. Alsop, 5 C. L. J. N. S. 159; 11 Cox, 264. (c) Reg. v. Naylor, 11 Cox, 13; 16 W. R. 374.

It is still a moot point whether, on an indictment for perjury, the materiality of the matter, on which the false swearing is proved, is a question of fact for the jury, or a question of law for the Judge, but according to the better opinion, it ought to be regarded in the latter light. (a)

Some doubt has been thrown upon the doctrine that the matter, upon which perjury is assigned, must be material to the enquiry. Erle C. J., in Reg. v. Mullany (b) suggested it, as worthy of careful consideration, whether a person might not be guilty of perjury, who swears falsely on a matter immaterial to the enquiry, with intent, to mislead the Court. (c)

In this case, after judgment against A., in a County Court suit, the Judge asked him whether his names were not Bernard Edward Mullany, preparatory to making an order for immediate payment of the debt, or for payment by instalments. A. had been sued by the names Bernard Edward Mullany, and he answered that his name was Edward Mullany only. The Judge, therefore, struck out the case. A. was indicted for perjury in stating that his name was Edward Mullany only, contrary to the fact as proved, and it was held that the evidence as to his name was material, and that he was therefore properly convicted of perjury. (d) Now, by the 32 & 33 Vic., c. 23, s. 7, all evidence, and proof whatsoever, whether given or made orally, or by, or in any affidavit, affirmation, declaration, examination or deposition shall be deemed and taken to be material, with respect to the liability of any person, to be proceeded against, and punished for wilful and corrupt perjury, or for subornation of perjury.

(a) Reg. v. Courtney, 7 Cox, 111; 5 Ir. L. R. N. S. 434; R. v. Dunston, Ry. & M. 109; but see R. v. Lavey, 3 C. & K. 26; R. v. Goodard, 2 F. & F. 361; Arch. Cr. Pldg. 817-8.

(b) L. & C. 593: 34 L. J. (M. C.) 111.

(d) Ib.

But a

The matter sworn must be either false in fact, or if true, the defendant must not have known it to be so. man may be indicted for perjury, in swearing that he believes a fact to be true, which he must know to be false. (a)

The false oath must be taken deliberately and intentionally; for, if done from inadvertence or mistake, it cannot amount to voluntary and corrupt perjury. (b)

It would seem that perjury may be assigned, when the oath is administered upon the common prayer book of the Church of England. (c)

Where, in an indictment for perjury, the defendant, was alleged to have sworn that no notice of the disqualification of a candidate for Township Councillor had been given previous to, or at the time of holding, the election, the perjury assigned being that such notice had been given previous to the election, and the notice appearing to have been given on the nomination of the candidate objected to:-Held, that the assignment of perjury was not proved as an election, under the Municipal Act, is commenced when the returning officer receives the nomination of candidates, and it is not necessary to constitute an election, that a poll should be demanded. (d)

The false oath must be clear and unambiguous. Where a joint affidavit made by defendant and one D., stated **each for himself, maketh oath, and saith that, etc., and that he, this deponent, is not aware of any adverse claim to or occupation of said lot. The defendant having been convicted of perjury upon this latter allegation:Held, that there was neither ambiguity nor doubt in what each defendant said; but that each, in substance,

(a) R. v. Pedley, 1 Leach, 327; R. v. Schlesinger, 10 Q. B. 670; 17 L. J. (M. C.) 29; Arch. Cr. Pldg. 818.

(b) Ib. 818-9.

stated that he was not aware of any adverse claim to or occupation of said lot. (a)

It would seem that a magistrate taking an affidavit without authority is guilty of a misdemeanor, and that a criminal information will lie against him for so doing. (b)

To constitute perjury at common law, it is not necessary that an affidavit should be read or used; for the crime is complete on the affidavit being sworn to, though no use was afterwards made of it; but, under the 5 Eliz. c. 9, as nothing can be an offence within it, unless some one is actually aggrieved, the affidavit must be read or used. (c)

To sustain a conviction for perjury, it is not necessary that the jurat of the affidavit, upon which the perjury is assigned, should contain the place at which the affidavit was sworn, for the perjury is committed by the taking of the oath, and the jurat, so far as that is concerned, is not material, and although through the defective jurat the affidavit could not be received in Court, yet perjury may be committed in an affidavit which the Court would refuse to read. The jurat is no part of the affidavit. (d)

In the affidavit in question in this case there was no statement as to where it had been sworn, either in the jurat or elsewhere, except the marginal venue, “Canada, County of Grey, to wit"; but the contents showed that it related to lands in the County of Grey, and it was proved that defendant subscribed the affidavit; that the party before whom it purported to have been sworn was a Justice of the Peace for that County, and had resided there for some years, and subscribed the jurat as a Justice of the Peace; that the affidavit, had been received, through the Post Office, by the agent of the Crown

(a) Reg. v. Atkinson, 17 U. C. C. P. 295.

(b) Jackson v. Kassel, 26 U. C. Q. B. 346, per Draper, C. J.

(d) Reg. v. Atkinson, 17 U. C. C. P. 295.

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