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

averring creditors to be judgment collector. First count. Embezzling creditors.

creditor's property. (517) Fifth count. Same, in another (524) Second count. Applying to shape.

his own use trust money, &c. (518) Fraudulent conveyance under (525) Pledging goods consigned, and statute Eliz. chap. 5, $ 3.

applying the proceeds to defendant's (519) General form.

use, under the Pennsylvania stat(520) Averring collusion with another ute. person.

(526) Second count. Selling same, (521) Same, but averring collusion and applying to defendant's use the with another person.

proceeds. (522) Same, specifying another as- (527) Third count. Selling same for signee.

negotiable instrument. (523) Fraudulent insolvency by a tax į 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.]

B. PERJURY AT COMMON LAW.
I. WILFUL, $ 2199.
II. FALSE, $ 2201.
III. OATH, $ 2205.
IV. BY ONE, $ 2208.
V. IN A COMPETENT COURT, S

2211.
VI. IN ANY JUDICIAL PROCEED-

ING, § 2221.
VII. IN A MATTER MATERIAL, $ 2228.
VIII. INDICTMENT, $ 2233.

1. WILFUL, $ 2234.
2. SWORN BEFORE A COMPETENT JU-

RISDICTION, $ 2236.
3. IN A JUDICIAL PROCEEDING, S

2248.

4. HOW AND TO WHAT EXTENT THE

ALLEGED FALSE MATTER IS TO RE

SET OUT, $ 2253. 5. How THE FALSE MATTER IS TO

BE NEGATIVED, S 2259.

6. MATERIALITY, $ 2263.
IX. EVIDENCE, S 2266.
X. ATTEMPTS TO COMMIT PER-

JURY, $ 2283.
XI. SUBORNATION OF PERJURY, Ś

2284.
XII. ATTEMPTS TO SUBORN: DIS-

SUADING WITNESS FROM AP-
PEARING, $ 2287.

B. PERJURY AT COMMON LAW. § 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,

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. 6

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

q 1 Hawk. c. 69, s. 1; 3 Inst. 164; 17; and cases cited post, § 2224, Bac. Ab. tit. “Perjury;” Burn's Jus- 2227. tice, tit. “ Perjury;" 2 Russ. on Cr. c See post, $ 2201; U. S. v. Pass5th Am. ed. 596 ; State v. Dodd, 3 more, 4 Dallas, 378. This feature of Murph. 226; State v. Ammon, 3 Murph. perjury is well set forth in the opinion 123; Martin v Miller, 4 Mo. 47; Pan- of Recorder Vaux, in Griffin's case key v. People, 1 Scam. 80; Com. v. (Recorder's Decisions, 43); a work to Kuntz, 4 Penn. Law Jour. 163; Hop- which the reader is referred, as conkins v. Smith, 3 Barbour, 599 ; De taining many cases of historical as Bernie v. State, 19 Ala. 23 ; Jackson well as of professional interest, and v. State, 1 Carter (Ind.), 184; McGre- into which the amiable and experigor v. State, Ibid. 232; People v. Col- enced author has thrown a great mass lier, 1 Mann. (Mich.) 137; State v. of information relative to the duties Tappan, 1 Foster (N. Hamp.), 56; of a committing magistrate. Pickering's case, 8 Grat. 628.

di Hawk. c. 69, s. 2; 2 Russ. on b R. v. Chapman, 1 Den. C. C. 432; Cr. 6th Am. ed. 597. See remarks on T. & M. 90; R. v. Hodgkiss, 1 L. R. this point in Steinman v. M'Williams, C. C. 212. See R. v. O'Brian, 2 Stra. 6 Barr, 170. 1144; R. v. De Beauvoir, 7 C. & P. 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.f

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. Falselyis 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. j 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. l As,

f Jesse v. State, 20 Geo. 156. Russ. on Cr. 6th Am. ed. 597; 1 Sid.

g Post, $ 2234; Resp. v. Newell, 3 419; and see post, $ 2202. Yeates, 417; Thomas v. Com. 2 Rob- 1 1 Hawk. c. 69, s. 6; 3 Inst. 166; inson, 795; Com. v. Cook, 1 Robinson, Palmer, 294. Post, $ 2261. In an 729; State v. Garland, 3 Dever. 114; action on a contract before a justice of Green v. State, 41 Ala. 419.

the peace, the making of the contract h Com. v. Cornish, 6 Binney, 249; was in issue. A witness testified that Com. v. Cook, 1 Rob. (Virg.) 729. See he went to a field with the parties to Steinman v. M'Williams, 6 Barr, 178; the contract, no other persons than R. 1. Muscot, 10 Mod. 192; R. v. Mo- the parties and himself being present, reau, 11 Q. B. 1028.

and that he heard the contract agreed i Ibid.

to by the parties. In point of fact he ; Com. v. Halstat, 2 Boston Law did not go to the field, was not present Rep. 177; State v. Gates, 17 N. H. when the contract was made, and had 373; R. 1. Edwards, 3 Russ. Cr. & no knowledge of the making. The M. 1.

contract was made, nevertheless; but k R. v. Schlesinger, 10 Ad. & El. N. it was held that the prisoner, haring S. 670; State v. Knox, 1 Phill. (N. C.) wilfully sworn to a thing he did not L. 312. Per Lord Mansfield, in R. v. know to be true, although it was true, Petrie, 1 Leach, 327; though see 2 was guilty of perjury. People v, Mc

Kinney, 3 Parker C. R. 510.

for instance, if a man swear that J. N. revoked his will in his presence, if he really had revoked it, but it were unknown to the witness that he had done so, it is perjury.m So, also, it is perjury for a person knowingly and corruptly to swear that he is ignorant of a particular fact of which he is cognizant. n

$ 2202. What is probable cause. — It has just been seen, therefore, that falsity consists in knowingly affirming a condition without probable cause. But what is probable cause ? Here, then, we must again accept a position so often vindicated in these pages, that probable cause must be estimated, not from the jury's stand-point, nor from the judge's, but from the defendant's. On the one hand, the fact sworn to may have been true, but if the defendant swore to it wilfully and corruptly, not knowing it to be true, or not having probable cause, according to his own lights, for believing it to be true, he is guilty, as was in the last section stated, of perjury. On the other hand, if he swears honestly to a fact or belief, with probable cause, according to his own lights, for the truth of his belief, he is not guilty of perjury, though his oath was really untrue. O

$ 2203. Mistake of fact induced by erroneous representations of others. — Hence it is admissible to prove reception of information by the defendant such as gave him probable ground for his oath. Upon an indictment against the defendant for a misdemeanor in falsely swearing that he bona fide had such an estate in law or equity of the annual value of £300 above reprises, as qualified him to be a member of parliament for a borough, a surveyor stated that the fair annual value of the property was about £200 a year, but another witness stated that it was badly let, and believed that it was worth more than £300 a year, and that he told the defendant so, and that he did not think that the defendant had any reason to believe that the qualification in point of value was not sufficient. It was held that the jury must be satisfied beyond all doubt, that the property was not of the value of £300 a year, and that at the time the defendant made the statement, he knew that it was not of that value. p

Oath taken under advice of counsel. — Hence, also, an honest oath taken under advice of counsel, is not perjury. Thus a m Hetley, 97.

R. v. De Beauvoir, 7 C. & P. 17, n Wilson v. Nations, 5 Yer. 211. Lord Denman, C. J. o Com. v. Brady, 5 Gray, 78.

9 U. S. v. Stanley, 6 McLean, 409.

593

р

VOL. IL.

-38

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