« 이전계속 »
bankrupt who submits the facts in regard to his property fairly to the advice of his counsel, and acting under the advice thus given, withholds certain items from his schedule, is not guilty of perjury; the fraudulent intent being wanting. r
$ 2204. General evil intent and no evil intent. - Here another well-known distinction must be invoked. It has been already seen that when there is a general intent to do mischief, and a specific overt act follows in causal connection with such general intent, then the general intent is tacked to the specific act, so as to complete the offence. 8 Hence it is perjury if a witness, from general recklessness and a depraved determination to hurt, fall the consequences where they may, swears knowingly to a falsehood. Hence even a voluntary drunkard, swearing falsely, may be convicted of perjury, if his intent in rendering his testimony was evil. t But if there be no evil intent, general or special, perjury fails. Thus, it is not perjury to swear honestly to testimony which the witness believes to be true, though a little diligence would have enabled him to have discovered its falsity. I If, however, he dishonestly refuses to make inquiry, and purposely shuts himself in to impressions which he has good reason to believe further investigations would dispel, then it is perjury. The corruptness, when proved, completes the offence; the absence of corruptness negatives it. u
III. OATH. $ 2205. The oath must be solemnly administered. But it is immaterial in what form it is given, if the party, at the time, professes such form to be binding on his conscience. v When a witness comes to be sworn, it is to be presumed that he has settled the point with himself in what way he will be sworn, and he should make it known to the court; and should be be sworn with uplifted hands, or by any other unusual mode, though not conscientiously opposed to swearing on the gospel, and depose falsely, he subjects himself to the pains and penalties of perjury. w
r U. S. v. Conner, 3 McLean, 573. Com. v. Brady, 5 Gray, 78; U. S. v. See U. S. Dickey, 1 Morris, 412. Shellmire, Bald. 370; U. S. v. Alkins, s See ante, $ 712 b, 751.
1 Sprague, 558. t People v. Willey, 2 Parker C. R. v See ante, $ 799.
w State v. Wisenhurst, 2 Hawks, u Cothran v. State, 39 Missis. 541; 458; Com. v. Knight, 12 Mass. 274;
$ 2206. Form of oath." Corporal oath” and
and "solemn oath " are equivalent, and either is sustained by proof of swearing with uplifted hands. x When a statute directs a form of swearing, it must be substantially followed; y but mere verbal deviations are immaterial. 2
$ 2207. Voire dire. - Where a party offers himself to prove his books, and wilfully testifies untruly as to matters material to the issue, it is perjury, although he was sworn generally, but without objection, to tell the whole truth, instead of being sworn to make true answers. a And a party is generally liable for perjury in his own case.b
When statutory direction as to form of testimony is disregarded. - It has been ruled in Vermont that a prosecution for perjury cannot be based on testimony received orally, but which by law ought to be taken in writing. C
IV. BY ONE.
$ 2208. The crime being distinct, several persons cannot be joined. One alone can be made defendant. Even supposing two persons swear jointly to the same false affidavit, it is impossible to
suppose that they did so at the same moment of time, so as to make the offence exactly joint. d
$ 2209. Incompetent witness. — If an incompetent witness is permitted to testify, and testifies falsely, it is perjury.e This is even good as to the plaintiff himself. f
Thomas v. Com. 2 Rob. 795; Com. v. book” may be omitted. R. v. Haly, Cook, 1 Rob. 729 ; Campbell v. Peo- 1 Cr. & Dix, 199. ple, 8 Wend. 636 ; State v. Coffey, a State v. Keene, 26 Maine (13 N. C. Term R. 272; S. C. 2 Murphey, Shep.), 33. 320; State v. Witherow, 3 Murphey, b Post, $ 2224. 153. Ante, $ 799. As to oaths ad- c State v. Trask, 42 Vt. 152. See ministered by commissioners from post, $ 2250, and State v. Helle, 2 other states, see Com. v. Smith, 11 Hill S. C. 290. Allen (Mass.), 243.
d R. v. Phillips, 2 Strange, 921 ; 2 Jackson v. State, 1 Carter (Ind.), Res. v. Ross, 2 Yeates, 79.
See ante, 184.
$ 429. y Maher v. State, 3 Minn. 444; e Post, $ 2231; Montgomery v. Ashburn v. State, 15 Ga. 246.
State, 10 Ohio, 220; Chamberlain v. z State č. Gates, 17 N. H. 373; State State, 23 N. Y. 85. v. Dayton, 3 Zab. 49. “Kissing the s Ibid.; Res. v. Newell, 3 Yea. 417.
See post, $ 2224.
$ 2210. Voluntary witness. — Nor is it requisite that the defendant should have been served with a subpoena, or have been compellable to testify. The mere fact of his testifying is enough.g.
V. IN A COMPETENT COURT.
$ 2211. Distinguished from breach of vows. — Breach of vows,
when attended by injury to others or to society, by the canon law is subjected to specific ecclesiastical penalties. " Quicunque sciens pejereraverit” (whether in a private vow or public testimony, supposing that God be appealed to as a sanction of the truth of vow or statement), “ quadraginta dies in pane et aqua et septem sequentes annos pæniteat, et nunquam sit sine pænitentia, et nunquam in testimonium recipiatur : communionem tamen post hæc percipiat.” (C. 18, c. vi. qu. 1.) But the Roman common law, followed in this respect by the English, treats perjury as an offence only when it can be used to disturb in judicial processes the civil relations of men. So far as it is solely an offence against God, by God is it solely to be avenged. “ Jurisjurandi contemta religio satis Deum habet ultorem.” (L. 2. Cod. de reb. cred.) In the maintenance of this distinction the English common law has been resolute.
$ 2211 a. Court must have jurisdiction. — The court must have jurisdiction of the proceedings in which the false oath was taken.g! If it appear to have been taken before a person who had no lawful authority to administer it, h or who had no jurisdiction of the cause, i the defendant must be acquitted.) The indictment, however, need not show the nature of the authority of the party
g Com. v. Knight, 12 Mass. 274. Mass. 274, Arden v. State, 11 Conn.
g1 Post, $ 2225; 2 Russ. on Cr. 6th 408 ; Conner v. Com. 2 Virg. Cas. 30; Am. ed. 599; Pankey v. State, 1 Scam. U. S. v. Bailey, 9 Peters, 238; U. S. 80; Montgomery v. State, 10 Ohio, v. Barton, Gilpin, 439. 220; State v. Lamden, 5 Humph. 83; h 3 Inst. 165, 166; Morrell o. PeoSteinson v. State, 6 Yerger, 531 ; ple, 32 Ill. 499. Post, $ 2225. State v. Fassett, 16 Conn. 457; State i 3 Inst. 166; Yelv. 111; State c. v. Gallimon, 2 Ired. 374 ; State v. Alexander, 4 Hawks, 182; State v. Alexander, 4 Hawks, 182; State v. Furlong, 26 Me. 69. Post, $ 2223. Hayward, 1 N. & M. 546; State v. į See R. v. Crossley, 7 T. R. 315; MeCroskey, 3 McCord, 305; State i Hawk. c. 69, s. 3, 4; Bac. Abr. Perv. Wyatt, 2 Hayw. 56; Com. v. White, jury (A.); R. v. Dunn, 1 D. & R. 10; 8 Pick. 453 ; Jackson v. Humphrey, R. v. Hanks, 3 C. & P. 419.
Post, s 1 Johns. 498; Com. v. Knight, 12 2225.
administering the oath.k And swearing by a clerk in presence of the court is swearing by the court. I
§ 2212. Suit must be regular. — Where the court has jurisdiction of the subject matter of inquiry, it is not necessary that the proceedings should be strictly regular. m But if from want of some essential condition, no jurisdiction attached, perjury cannot be maintained. n
$ 2213. Before courts-martial. — By statutes this is made indictable in most jurisdictions ; but even where a statute does not apply, the weight of authority is that it is perjury at common law.o
$ 2214. Before ecclesiastical courts. In a celebrated and much contested case in Connecticut, it was held by a majority of the judges, that as Christianity is part of the common law of the land, an ecclesiastical tribunal has the right to administer an oath, and that false swearing before such a tribunal is perjury.p The last is certainly a bold position ; and when we bear in mind the license with which ecclesiastical trials are conducted, particularly where the church discipline leaves the matter to the adjudication of the congregation as a body, it is questionable how far sound policy would justify a doctrine which would attach to ecclesiastical sentences, first the incidents and then the consequences of a civil judgment. Yet on the other hand the tendency of the supreme court of the United States to treat the adjudications of ecclesiastical tribunals as authoritative, makes it important to solemnize and check testimony in such courts by the sanction of an oath.
§ 2215. Before grand jury. — Perjury, it seems, may signed on a false oath taken before a grand jury. In England doubts seem to have existed as to whether a grand juror was competent to prove the oath ; but it is clear that the clerk of the assizes, or any third person, is admissible for that pur
k R. v. Callanan, 6 B. & C. 602 ; o R. v. Heane, 4 B. & S. 947; 9 State v. Ludlow, 2 Southard, 772. Cox C. C. 433 ; R. v. Tomlinson, L. Post, $ 2239, 2241.
R. C. C. 49. Post, $ 2221. 1 Post, $ 2272.
p Chapman v. Gillet, 2 Connect. m State v. Lavalley, 9 Mo. 824. R. 40. Post, $ 2226.
9 State v. Fassett, 16 Connect. 457; n R. v. Ewington, 2 M. C. C. 223; Com. v. Parker, 2 Cush. 212; Thomas Car. & M. 319; R. v. Pearce, 3 B. & v. Com. 2 Robin. 795; Com. v. PickerS. 531 ; 9 Cox C. C. 258.
ing, 8 Grat. 628. See ante, $ 508-11.
The inclination of opinion now is that the grand jury is competent. 8.
$ 2216. Before unauthorized officer.—The officer must have legal power to administer the oath in the particular process. t Thus a man cannot be indicted for perjury in swearing before a justice to his attendance in court as a witness, when the clerk only is authorized to administer such oath. u
$ 2217. Officer acting as such prima facie competent. — It is sufficient primâ facie, that the person by whom the oath is administered was an acting magistrate, and the evidence of the individual himself may be received for that purpose. v The rule, however, is inflexible, that the jurisdiction should be primâ facie competent, and the proceedings judicial. w But perjury may be assigned in an oath erroneously taken, especially while the proceedings in which it was taken remain unreversed. x
$ 2218. Oaths administered in a foreign state. -- According to the Anglo-American law, one state, it is unnecessary to say, has no jurisdiction of perjury committed in a foreign state, against the authority of such foreign state ; y nor does it make any
difference that such perjury was committed in an affidavit taken before a judge of the prosecuting state at the time sojourning in the foreign state, such judge not being authorized so to act by the prosecuting state.z There are, however, exceptions to this rule:Perjury before consuls, fc., abroad. — Such perjury, by statute,
. may be punished in the United States. a
Perjury before commissioner to take testimony. – Where not made so by statute, no doubt such perjury, though committed abroad, is punishable in the state from which the commission issues. b But the authority of the commissioner is strictly limited by his commission ; and if he transcends it, any oath admin
R. v. Hughes, 1 Car. & K. 519. w State v. Clark, 2 Tyler, 282; Peos See ante, § 508–11; People v. ple v. Phelps, 5 Wendell, 10. Young, 31 Cal. 563; State v. Green, 2 Van Steenburgh r. Kontz, 10 24 Ark. 591.
Johnson, 167. Post, $ 2226. 1 Lamden v. State, 5 Humph. 83; y Musgrave v. Madex, 19 Ves. 652; State v. Clark, 2 Tyler, 277 ; R. v. Phillippi v. Bowen, 2 Barr, 20; Wh. Stone, Dears. 251; R. v. Hanks, 3 C. Con. of Laws, $ 853. & P. 419.
z Jackson v. Humphrey, 1 Johnson u State v. Wyatt, 2 Haywood, 56. R. 498.
1 State v. Hascall, 6 New Hamp. a Wh. Con. of Laws, $ 873. 352. See ante, $ 653, 713; post, b Phillippi v. Bowen, 2 Barr, 20.