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It is clearly unnecessary that the prosecutors should be judgment creditors. Thus in New York, g Bronson, J., said: "The language of the act plainly extends to all creditors, and I can perceive no sufficient reason for restricting its construction to such creditors as have obtained judgments for their demands. The fraudulent removal, assignment, or conveyance of property by a debtor, which the legislature intended to punish criminally, usually takes place in anticipation of a judgment, and for the very purpose of defeating the creditor of the fruits of his recovery. If there must first be a judgment before the crime can be committed, the statute will be of very little public importance. This is not like the case of a creditor seeking a civil remedy against a fraudulent debtor. There the creditor must complete his title by judgment and execution, before he can control the debtor in the disposition of his property; he must have a certain claim upon the goods before he can inquire into any alleged fraud on the part of the debtor. h But this is a public prosecution, in which the creditor has no special interest. The legislature has relieved the honest debtor from imprisonment, and subjected the fraudulent one to punishment, as for a criminal offence. The crime consists in assigning or otherwise disposing of his property, with intent to defraud a creditor, or to prevent it from being made liable for the payment of his debts. The public offence is complete, although no creditor may be in a condition to question the validity of the transfer in the form of a civil remedy." i

g People v. Underwood, 16 Wend. (511) Fifth count. Same, not speci546. fying goods, with intent to defraud persons unknown.

h Wiggins v. Armstrong, 2 John. Ch. 144.

i See generally, Wharton's Precedents, as follows:

(512) Sixth count. Same, with intent to prevent property from being levied on.

(507) Secreting, &c., with intent to (513) Another form on the same stat

defraud, &c.

(508) Second count. Same, with in

tent to defraud, and prevent such property from being made liable for payment of debts.

ute. First count. Intent to defraud,

to prevent property from being made liable, &c.

(514) Second count. Same, with intent to defraud another person.

(509) Third count. Same. Not spec- (515) Third count. Secreting, as

ifying property.

(510) Fourth count. Averring intent to defraud persons unknown.

signing, &c., with intent to defraud two, &c.

(516) Fourth count Secreting, &c.,

The fact of indebtedness of some kind, however, on the part of the defendant, must be distinctly averred.j

averring creditors to be judgment creditors.

collector. First count. Embezzling creditor's property.

his own use trust money, &c.

(517) Fifth count. Same, in another (524) Second count. Applying to shape. (518) Fraudulent conveyance under (525) Pledging goods consigned, and statute Eliz. chap. 5, § 3.

(519) General form.

(520) Averring collusion with another person.

(521) Same, but averring collusion with another person.

(522) Same, specifying another assignee.

(523) Fraudulent insolvency by a tax

applying the proceeds to defendant's use, under the Pennsylvania stat

ute.

(526) Second count. Selling same,

and applying to defendant's use the proceeds.

(527) Third count. Selling same for negotiable instrument.

j State v. Robinson, 9 Foster, 274.

589

BOOK VI.

OFFENCES AGAINST SOCIETY.

CHAPTER I.

PERJURY.

[The statutes on Perjury are, for purposes of condensation, omitted in this edition. They will be found in the sixth edition at § 2169-2198. For interpretation of U. S. Statutes see U. S. v. Bailey, 9 Peters, 239; of Massachusetts Statutes, Com. v. Alden, 14 Mass. 388; Wellington v. Stearns, 1 Pick. 497; Com. v. Farley, Thacher's C. C. 654; Jones v. Daniels, 15 Gray, 438; of New York, Tuttle v. People, 36 N. Y. 431; of Ohio, Montgomery v. State, 10 Ohio, 226.]

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§ 2198. PERJURY by the common law is the taking of a wilful false oath, by one who, being lawfully sworn by a competent court to depose the truth in any judicial proceeding, swears ab

solutely and falsely, in a matter material to the point in question, whether he be believed or not. a

But false swearing, it should be remembered, though not technically perjury, may nevertheless be at common law indictable as an independent misdemeanor, when the oath is taken to secure a juridical right.

Thus where the defendant was indicted for perjury in an affidavit made under the Bills of Sale act, 1854 (17 & 18 Vict. c. 36), for the purpose of getting a bill of sale filed, and the affidavit was sworn before a commissioner for taking affidavits in the court of queen's bench: It was held, that his offence did not constitute perjury, but that he was guilty of taking a false oath, which offence was, under the circumstances, a common law misdemeanor. b

I. WILFUL.

§ 2199. Perjury consists in swearing falsely and corruptly, without probable cause; not in swearing rashly or inconsiderately, according to belief. c The false oath, if taken from inadvertence or mistake, cannot amount to voluntary and corrupt perjury.d Therefore, where perjury is assigned on an answer in equity, or an affidavit, &c., the part on which the perjury is assigned may be shown to be inadvertent by another part, or even by a subsequent answer. e

2227.

a 1 Hawk. c. 69, s. 1; 3 Inst. 164; 17; and cases cited post, § 2224, Bac. Ab. tit. "Perjury;" Burn's Justice, tit. “Perjury;" 2 Russ. on Cr. 5th Am. ed. 596; State v. Dodd, 3 Murph. 226; State v. Ammon, 3 Murph. 123; Martin v Miller, 4 Mo. 47; Pankey v. People, 1 Scam. 80; Com. v. Kuntz, 4 Penn. Law Jour. 163; Hopkins v. Smith, 3 Barbour, 599; De Bernie v. State, 19 Ala. 23; Jackson v. State, 1 Carter (Ind.), 184; McGregor v. State, Ibid. 232; People v. Collier, 1 Mann. (Mich.) 137; State v. Tappan, 1 Foster (N. Hamp.), 56; Pickering's case, 8 Grat. 628.

b R. v. Chapman, 1 Den. C. C. 432; T. & M. 90; R. v. Hodgkiss, 1 L. R. C. C. 212. See R. v. O'Brian, 2 Stra. 1144; R. v. De Beauvoir, 7 C. & P.

c See post, § 2201; U. S. v. Passmore, 4 Dallas, 378. This feature of perjury is well set forth in the opinion of Recorder Vaux, in Griffin's case (Recorder's Decisions, 43); a work to which the reader is referred, as containing many cases of historical as well as of professional interest, and into which the amiable and experienced author has thrown a great mass of information relative to the duties of a committing magistrate.

d 1 Hawk. c. 69, s. 2; 2 Russ. on Cr. 6th Am. ed. 597. See remarks on this point in Steinman v. M'Williams, 6 Barr, 170.

e 1 Sid. 419; Com. Dig. Just. of Peace (B.), 102.

§ 2200. Mistake. Inadvertence.-A witness stating evidence truly to the writer of an affidavit, and swearing to it when drawn up, is not guilty of perjury, if the statements are written erroneously by the amanuensis.ƒ

That the oath is wilful and corrupt, must not only be charged in the indictment, but supported on trial. g An oath is wilful when taken with deliberation, and not through surprise or confusion, or a bona fide mistake as to the facts, in which latter cases perjury does not lie. h

II. FALSE.

§ 2201. "Falsely" is knowingly affirming without probable cause. It is perjury where one swears wilfully, absolutely, and falsely, to a matter which he believes, if he has no probable cause for believing. i A man is even guilty of perjury if he swears to a particular fact, without knowing at the time whether it is true or false. Hence it is a good assignment of perjury that the defendant swore that he "thought" or "believed "a certain fact, whereas in truth and fact he "thought" or "believed” the contrary, or had no probable grounds for what he swore. k So, also, it is no defence that the oath is true, if the defendant swears to it corruptly, and has no probable grounds for his oath. As,

f Jesse v. State, 20 Geo. 156.

g Post, § 2234; Resp. v. Newell, 3 Yeates, 417; Thomas v. Com. 2 Robinson, 795; Com. v. Cook, 1 Robinson, 729; State v. Garland, 3 Dever. 114; Green v. State, 41 Ala. 419.

h Com. v. Cornish, 6 Binney, 249; Com. v. Cook, 1 Rob. (Virg.) 729. See Steinman v. M'Williams, 6 Barr, 178; R. v. Muscot, 10 Mod. 192; R. v. Moreau, 11 Q. B. 1028.

i Ibid.

j Com. v. Halstat, 2 Boston Law Rep. 177; State v. Gates, 17 N. H. 373; R. v. Edwards, 3 Russ. Cr. & M. 1.

k R. v. Schlesinger, 10 Ad. & El. N. S. 670; State v. Knox, 1 Phill. (N. C.) L. 312. Per Lord Mansfield, in R. v. Petrie, 1 Leach, 327; though see 2

Russ. on Cr. 6th Am. ed. 597; 1 Sid. 419; and see post, § 2202.

1 Hawk. c. 69, s. 6; 3 Inst. 166; Palmer, 294. Post, § 2261. In an action on a contract before a justice of the peace, the making of the contract was in issue. A witness testified that he went to a field with the parties to the contract, no other persons than the parties and himself being present, and that he heard the contract agreed to by the parties. In point of fact he did not go to the field, was not present when the contract was made, and had no knowledge of the making. The contract was made, nevertheless; but it was held that the prisoner, having wilfully sworn to a thing he did not know to be true, although it was true, was guilty of perjury. People v, McKinney, 3 Parker C. R. 510.

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