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recited in the indictment it is shown clearly to be but one instrument, an affidavit,— a writing called an affidavit. This objection, therefore, must be overruled. If the sense of a word be ambiguous, it shall be construed according to the context.1 The next objection, that the indictment does not specify the particular statements in the affidavit relied upon as false, is of a more serious character. The same objection in substance was taken at the trial, but was overruled upon the authority of the case of United States v. Staats.2

The offense in that case was the same as in this; the indictment was substantially the same in its allegations, and upon the same clause of the same statute. There was in that case no particular assignment of the falsity of the writing or affidavit, but a general allegation that the respondent knew that it was “false and untrue," and the court held that the acts charged constituted an offense within the provisions of the statute and overruled the particular objections there taken. A more careful examination of that case, however, and other authorities, together with a consideration of the principles and rules regulating criminal proceedings, has satisfied us that the objection is a fatal one, and that the judgment in this case must be arrested. Though in the case of United States v. Staats the indictment was the same as here, the point made here was not made there, nor does the attention of the court appear to have been called to it. Two considerations arose there: (1) Whether the indictment should not have described the offense to have been committed " feloniously; " and (2) whether the acts charged constituted the offense described in the statute; that is, whether the sending a writing false in its statements constituted the offense, or a writing false in its execution — not a genuine paper. The court held that the offense need not be described as committed feloniously, and that sending a paper containing false statements, though genuine in its execution, constituted the offense, but nothing further. No question was there made, like the one in this case, whether, in describing the offense, the indictment should not have been framed with more particularity, and have shown more definitely in what the falsity of the writing consisted.

It is a well-established rule in criminal proceedings that every indictment must charge the crime with such certainty and precision that it may be understood, charging all the requisites that constitute the offense, and that every averment be so stated that the party accused may know the general nature of the crime of which he is accused.3 Thus, in an indictment for obtaining money by false pretenses, it was

1 Arch., 41, and authorities cited 2 8 How. 41.

39.

3 1 Chit. Cr. L. 172; Arch'. Cr. Pl. & Ev.

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held necessary to specify the false pretenses.1 So, in an indictment for extortion, the indictment must show what fee was due, and what was taken. An indictment for stopping the highway must specify what part was stopped.3 So an indictment which may apply to either of two different offenses, and does not specify which is bad.4 Where the statute made it felony maliciously to kill cattle, it was held the particular kind of cattle must be specified.5 Applying the rule as to certainty thus laid down by Chitty and Archbold, and illustrated by these decisions, the defects of this indictment become very apparent. The indictment alleges the sending of a false writing and affidavit to the pension office. Now an affidavit may be false in its making, it may be forged, or it may be false in its statements. This indictment alleges that the affidavit was false and untrue, and that the statements in it were untrue and false, an allegation broad enough to include a false and forged instrument, and one false in its statements but genuine in its execution, without specifying which. It may apply to either of the two offenses, or both, but does not specify which, and therefore falls within the case of Rex v. Marshall. Again: "The special matter of the whole fact ought to be set forth with such certainty that it may judicially appear to the court that the offense has been committed,' 7 and if any fact or circumstance which is a necessary ingredient of the offense be omitted in the indictment, such omission vitiates the indictment. Thus in an indictment against a person for not serving in the office of constable, the mode of election must be set out to show that he was legally elected.8 So in prosecutions for perjury, the indictment must allege not only the taking of the oath, but in what proceeding and before what court, and that the oath was material. It must also set out particularly that part of the oath relied upon as false, with particular averments of its falsity.9 The statute in this case makes it an offense to send a false affidavit to any office or officer of the United States knowingly and with intention to defraud. In the case of United States v. Staats,10 the court held that an affidavit or writing false in its statements, in contradistinction from falsity in execution, was within the description of the offense in the statute.

The affidavit set out in the indictment in this case contains numerous allegations. Some are material, some are not. Probably no one would contend that if the affidavit or writing were false only in some immaterial statements, the crime had been committed; yet there is no alle

1 Rex v. Mason, 2 Term R. 581; Rex v.

Munoz, 2 Strange, 1127.

2 Rex v. Lake, 3 Leon, 268.

3 Rex v. Roberts, 1 Show. 389.

+ Rex v. Marshall, 1 Mood. C. C. 158.

5 Rex v. Chalkley, Rosc. & Ry. 258.

1 Mood. C. C. 158.

7 Russ. on Cr. sec. 304; P. C. bk. 2 ch. 25. sec. 57.

8 Rex v. Harpur, 5 Mod. 96.

Archb. Pl. & Ev. 538, 539; Hawkins,

bk. 2, ch. 25, sec. 57.

10 8 How. 41, secs. 2542-2544, supra.

gation that the false statements were material, and no such particular specification or description of the false statements as will enable the court to say that they were material. It is quite true that the court instructed the jury that they must find the affidavit false in some material matter or allegation, but taking the indictment and the verdict of guilty, no one can say whether the jury found the affidavit false in a material or immaterial part. And if it be sound law that the affidavit must have been false in some material allegation to warrant conviction, then it follows there are not sufficiently specific allegations in the indictment to sustain the verdict and warrant a judgment upon it. The indictment should have alleged the material false statement.

It is contended in the brief of the prosecuting officer that this is an offense, made such by special statute, and is set out in the language of the statute, and is, therefore, sufficient. But neither of these propositions can, as we think, be successfully maintained. Archbold1 says: "As to indictments for offenses created by statute, the statute contains a definition of the offenses, and the offense consists of the commission or omission of certain acts under certain circumstances, and in some cases with a particular intent. An indictment, therefore, for an offense against the statute must with certainty and precision charge the defendant to have committed or omitted the acts under the circumstances and with the intent mentioned in the statute; and if one of these ingredients in the offense be omitted, the defendant may demur, move in arrest of judgment, or bring writ of errorr The defect will not be aided by the verdict."2 The statute of 7 George IV.,3 provides that if the indictment describe the offense in the words of the statutes, after verdict, it will be sufficient in all offenses created or subjected to any greater degree of punishment by any statute; but we have no such statute. Salkeld says: 4 "Neither doth it seem to be always sufficient to pursue the very words of the statute, unless by so doing you fully, directly and expressly allege the fact in the doing or not doing thereof the offense consists, without any, the least uncertainty."

We are of opinion that all the ingredients of this offense are not set out with sufficient particularity, and that neither the court nor the respondent could know from the indictment whether he was to be tried for sending an affidavit to the pension office, not genuine in its execution, or one genuine in its execution, but false in statement; nor, if so false in statement, whether in a material or immaterial allegation; and that the judgment should be arrested.

1 Pl. & Ev. 46.

Judgment arrested. Defendant discharged.

2 He cites Lee v. Clarke, 2 East, 333, and other cases.

3 ch. 64, sec. 21.

4 Pl. Cr., bk. 2, ch. 25, sec. 111.

PERJURY-MATERIALITY OF TESTIMONY-INSTRUCTIONS.

DONOHOE v. STATE.

[14 Tex. (App.) 638.]

In the Court of Appeals of Texas, 1883.

On the Trial of an Indictment which assigned perjury upon matter not alleged to be material, as well as upon matter alleged material, the court charged the jury as follows: "If, in view of what has been said by the court as to the law, and from all the evidence before them, the jury believe that the defendant, in San Patricio County, did, as charged, deliberately and willfully make the statement set out in the indictment, or any part thereof, that the jury believe to have been material to the matter before the grand jury, and if such statement or part thereof is shown (to) have been false when it was made, and if the jury believe the defendant knew it was false when he made it (if he did so), and if they further believe he made such statement before the regular grand jury of this county, as alleged, and under proper oath duly administered to him, then they should find him guilty as charged, and in addition, assess his punishment at," etc. Held, error, because not confined to such false statements as are alleged material, and therefore properly assigned; and because it authorized the jury to pass upon the materiality of the alleged false testimony.

APPEAL from the District Court of San Patricio. the Hon. D. P. Marr.

Tried below before

The charging part of the indictment reads as follows:

"that William Donohoe, on the sixth day of March, A. D. 1882, in the county of San Patricio and State of Texas, did the n and there commit deliberate and willful perjury, in this, as follows, to wit: that while the grand jury of the county aforesaid were in session and were making inquiry of offenses against the penal laws, it became and was then and there a material question whether or not William O'Docherty had willfully shot two certain mules in said county on or about the first day of January, A. D. 1882, and upon said investigation before the grand jury aforesaid, the said William Donohoe then and there appeared as a witness and was duly sworn by Warren Wallace, then and there foreman of the grand jury aforesaid, and the said William Donohoe, being so sworn as aforesaid, and contriving and intending to pervert the due course of law and justice, upon his oath aforesaid, did deliberately, willfully, corruptly and maliciously swear (among other things) in substance and to the effect following, that is to say, that William O'Docherty and others were on the roadside when two certain mules, drawing a wagon and in charge of a driver, came up to the place where the said William O'Docherty and others were standing, and that the said William O'Docherty was shooting off his pistol over the head of the horse of Alex. McGloin, across the road, before and at the time the aforesaid mules and wagon came up and

passed by where the said William O'Docherty and others were standinp, and that the aforesaid horse of Alex. McGloin was on the same side of the road upon which the said William O'Docherty was standing, and that he, said William Donohoe, knew nothing of the said mules being then and there shot; which said statements were false, as the said William Donohoe then and there well know, whereas in truth and in fact, the said Alex. McGloin and the horse of the said Alex. McGloin were not near to the said William O'Docherty when he fired at the said mules, but were at the distance of fifteen or twenty yards from the said William O'Docherty at the time said O'Docherty fired at said mules; and whereas in truth and in fact the said William O'Docherty did deliberately fire at said mules, and did not fire at said mules over the head of the horse of Alex. McGloin, and whereas in truth and in fact the horse of Alex. McGloin was not on the same side of the road upon which the said William O'Docherty was standing at the time said O'Docherty shot said mules; and whereas in truth and in fact the said William Donohoe was then and there present and did know that the said William O'Docherty did then and there deliberately shoot said mules. And so the grand jurors aforesaid, upon their oaths aforesaid, do say that the said William Donohoe, on the sixth day of March, A. D. 1882, in the county and State aforesaid, before the grand jury as aforesaid, by his own act and consent, and by his own wicked and corrupt mind, in manner and form aforesaid, did deliberately, willfully, falsely and corruptly commit perjury; against," etc.

The trial resulted in a verdict of guilty, and a term of five years in the penitentiary was awarded as penalty.

John was the first witness introduced for the State. He testified that he was a member of the regular grand jury of San Patricio County, at the March term, 1882, of the District Court. Warren Wallace was the foreman of that grand jury. The defendant was regularly called before that grand jury to testify as a witness regarding a matter of the shooting of two mules by William O'Docherty, which was then being investigated. The oath prescribed by the Code of Criminal Procedure was administered to him. Here the witness was shown a paper purporting to be the testimony of the defendant before the grand jury, reduced to writing. He testified that the testimony of the defendant before the grand jury was reduced to writing at the time, at the request of the grand jury, by some one of the grand jury, he believed H. D. Sullivan.

On his cross-examination, the witness stated that the paper did not contain everything that the defendant said before that grand jury, but that it did contain the substance. The defendant testified before the

grand jury on March 6, 1882.

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