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istered by him is not the subject of prosecution in the state from which the commission issues. c

False and knowing use of a false foreign affidavit. — This, though the perjury itself is not cognizable, is indictable at common law.d

$ 2219. State magistrate under act of congress. — If a state magistrate administer an oath under an act of congress expressly giving him the power to do so, it would be a lawful oath by one having competent authority; as much so as if he had been especially appointed a commissioner under a law of congress for that purpose. e

$ 2220. Justice of the peace for arbitrator. — Perjury may be assigned on an oath administered by a justice of the peace, on the investigation of a matter submitted to arbitration by a rule of court, with the consent of parties. f But it is otherwise if the arbitrators have no power to make a binding award. 9

· VI. IN ANY JUDICIAL PROCEEDING.

$ 2221. To constitute the technical offence of perjury at common law, it must appear that the false swearing was in a judicial proceeding. h At the same time it must be remembered that the making of a false affidavit in any proceeding authorized by statute is a misdemeanor akin to perjury; and in an indictment for such an offence, the averments peculiar to perjury may be rejected as surplusage. i

If the defendant took a false oath when examined as a witness at a trial; or in an answer to a bill in equity;j or in depositions in a court of equity;k or on a motion for continuance;l or in proceedings before referees ; m or in an affidavit in any pending See Smith v. Com. 11 Allen, 243; Wh. i R. v. Hodgkiss, Law Rep. 1 C. C. Con. of Laws, $ 722.

212; Rump v. Com. 30 Penn. St. 475. c Com. e. Quimby, 6 Bost. Law Ante, $ 2198. Rep. N. S. 210.

j 5 Mod. 348; 3 Inst. 66; Com. v. d O'Mealy v. Newell, 8 East, 364. Warden, 11 Met. 406.

e U. S. v. Bailey, 9 Peters, 238; k 5 Mod. 348. U. S. v. Winchester, 2 McLean, 136. i State v. Johnson, 7 Blackf. 49;

f State v. Stephenson, 4 McCord, State v. Flagg, 27 Ind. 24; State v. 165. See Chapman v. Gillett, 2 Con- Shupe, 16 Iowa, 36; Morrell v. People, nect. 41, note.

32 Ill. 499. g Post, $ 2222.

m State v. Keene, 26 Me. h State v. Chamberlin, 30 Vt. 559; Shep.) 33. State v. Simons, Ibid. 620.

issue in court;n or upon a wager of law;o or upon a commission for the examination of witnesses ; p or in justifying bail in any of the courts ; q or upon an examination before a magistrate; or in a judicial proceeding in a court baron ;r or before a grand jury;s or legally authorized ecclesiastical court;t or in a trial before a court-martial ; u it is perjury. v

§ 2222. Juror on his voir dire. — An indictment lies against a juror alleging that he falsely and corruptly swore upon his voir dire, that he had not formed or expressed an opinion on the merits of the case, when in fact he had. w

Mere voluntary oaths not prescribed by statute. — But a mere voluntary oath cannot amount to perjury. Therefore false swearing in a voluntary affidavit, made before a justice of the peace, or notary, before whom no cause is depending, and under no statutory procedure, is not perjury. x Even when a reference before arbitrators is pending, it is not perjury to swear falsely before a justice to an affidavit to be used by them, if no suit or legal procedure could be based on their action. y

Statutory affidavits. — As has been seen, z when a statute authorizes an affidavit to be made as a foundation for any legal

n 5 Mod. 348; 1 Show. 335, 397; phenson, 4 McCord, 165; Com. . 1 Ro. Rep. 79, per Coke, C. J.; Stew- Knight, 12 Mass. 274; State v. Dayart v. State, 22 Ohio St. 405.

ton, 3 Zabriskie, 49. It is doubted if o Noy, 128.

perjury can be assigned upon the oath p Cro. Car. 99. See 1 B. & P. 240. made for the purpose of obtaining a 9 State v. Lavalley, 9 Mo. 824. marriage license; R. v. Alexander, 1

q 5 Mod. 348; 1 Mod. 55, per Leach, 63; but see 1 Vent. 370; and Twisden, J.

in R. v. Foster, R. & R. 459, a false s Ante, $ 2215.

oath taken before a surrogate, to prot 5 Mod. 348. Ante, $ 2214. cure a marriage license, was holden

u R. v. Heane, 4 B. & S. 947. Ante, not sufficient to support a prosecution $ 2213.

for perjury.

So in So. Car., as to v Archbold's C. P. 9th ed. 538; 1 swearing to an account to present to Hawk. c. 69, s. 3.

an administrator. Pegram r. Styrm, w State v. Wall, 9 Yerger, 347; 1 Bailey, 595. In such a case, it is State v. Moffot, 7 Humph. 250. usual to indict as for a mere mise

& Shaffer v. Kentzer, 1 Binney, meanor at common law. Archbold C. 542; Lamden v. State, 5 Humph. 83; P. 9th ed. 538 ; R. v. Hodgkiss, Law Jackson v. Humphrey, 1 Johns. 498; Rep. 1 C. C. 212. Ante, $ 2221. U. S. v. Nickerson, 1 Sprague, 232; y Mahan v. Berry, 5 Mo. 21. See People v. Travis, 4 Parker C. C. 13

ante, $ 2220. State v. Wyatt, 2 Hay. 56; Pegram v. z Ante, $ 2198. Styrm, 1 Bailey, 595; State v. Ste

a

claim or right, the false swearing to such an affidavit is an indictable misdemeanor at common law. But in such case the affidavit must be within the purview of the statute. Thus, where a man is authorized by statute to support an account by his own oath, if sworn within 6 twelve months after the first article therein charged shall become due,” it must appear affirmatively on the face of the account, that the oath was sworn within the twelve months, or the party is not guilty of perjury if it be false. So when the person making the affidavit testifies to a point the statute does not cover, or is himself not within the purview of the statutes. 6

$ 2223. Yet one making a false affidavit before a justice of the peace of a state, in order to establish a claim against the United States, is indictable under the act of congress passed March 1, 1823, to prevent false swearing touching public money, though such affidavit was not expressly authorized by act of congress, but allowed by the secretary of the treasury to be made before a justice of the peace, under the act of July, 1832, liquidating Virginia claims.c

Nor is it necessary that a statutory affidavit should do more than substantially follow the statute. d

$ 2224. Party testifying in his own case. — The fact that the alleged perjury is committed by a party testifying in his own case is no defence. If the party offer himself as a witness, is sworn, and testify falsely, perjury may be assigned on the oath thus taken. e As has been seen, perjury may be committed in an answer to a bill in equity. It is said in Ohio, however, where there are no common law offences, that this is not the case where the bill does not call for an answer under oath. f.

$ 2225. Suits void and voidable. - A suit which is actually void and null from want of jurisdiction or other incurable defects, is not one in which perjury can be committed.g But if the pro

a Warner v. Fowler, 8 Md. 25. State v. Molier, 1 Dev. 263; R. v. 6 State v. Helle, 2 Hill S. C. 290; Tichborne, London, May, 1873; Haley U. S. v. Kendrick, 2 Mason, 69; U. S. v. McPherson, 3 Humph. 104; Van v. Babcock, 4 McLean, 113.

Steenburg v. Kortz, 10 Johns. 167; c U. S. v. Bailey, 9 Pet. 238. R. v. Mullany, 10 Cox C. C. 97; L. d Ante, $ 2206.

& C. 593. Ante, $ 2209. e Montgomery v. State, 10 Ohio, f Silver v. State, 17 Ohio, 365. 226; Resp. v. Newell, 3 Yeates, 414;

9

R. v. Cohen, 1 Stark. 511; R. v. State v. Keene, 26 Me. (13 Shep.) 33; Ewington, C. & M. 319; 2 M. C. C

ceedings are merely voidable, even though there be such defects as require a reversal on error, false swearing in its conduct is perjury, if such false evidence could by any contingency be introduced as testimony.h

$ 2226. Oaths of office. — At common law perjury cannot be committed in an official oath, so far as such oath touches future conduct. i

§ 2227. On a voluntary statutory affidavit not necessary to show additional enabling proof. — Perjury may be assigned upon an oath or affidavit which is insufficient to effect the purpose for which it was taken, without additional proof, and it is not necessary to show or aver that such additional proof was made.j

False swearing in federal courts. — A state court, it has sometimes been said, cannot punish for perjury made such under an act of congress. k Yet it is on principle otherwise when the offence strikes generally at the body politic. l

False swearing in naturalization case. Hence false swearing in a naturalization case is perjury at the common law, and, though it may also be an offence against the federal government, the offender may be indicted and punished in a state court.m Whether a state court can act generally under an act of congress has been already discussed. n

VII. IN A MATTER MATERIAL. $ 2228. The assignment of perjury on which a conviction is asked must be in a matter which was material to the issue.o

223; R. v. Pearce, 3 B. & S. 531; 9 k State v. Adams, 4 Blackf. 146; Cox C. C. 258; R. v. Scotton,

Q. B.

People v. Kelley, 38 Cal. 145. 493. Post, $ 2250–1; ante, $ 2211. I U. S. v. Bailey, 9 Pet. 238.

h R. v. Hailey, Ryan & M. 94; R. m State v. Whittemore, 50 N. H. v. Christian, C. & M. 388; R. v. Meek, 245; Rump v. Commonwealth, 30 9 C. & P. 513; Pippet v. Hearn, Penn. State R. 475. Contra, People v. 1 D. & R. 266; R. v. Fletcher, Law Sweetman, 3 Parker C. R. 358. Rep. 1 C. C. 320; State v. Hall, 7 n See ante, $ 431. Blackf. 25; State v. Keen, 26 Me. 33; 0 2 Russ. on Crimes, 6th Am. ed. Van Steenburgh v. Kortz, 10 Johns. 600; R. v. Worley, 3 Cox C. C. 535; 167; R. v. White, M. & M. 271. Post, State v. Hattaway, 2 N. & M. (S. C.) $ 2250–1; King v. R. 3 Cox C. C. 118; Hinch +. State, 2 Mo. 158 ; Com. 561; 14 Q. B. 31 ; R. v. Millard, 6 v. Knight, 12 Mass. 274; Campbell e. Cox C. C. 150.

People, 8 Wend. 636 ; Conner v. Com. i State v. Dayton, 3 Zab. 49; 1 2 Virg. Cases, 30 ; State v. Aikens, 23 Hawk. P. C. 431.

Iowa, 403; R. v. Owen, 6 Cox C. C. ; Ibid.

105; State v. Flagg, 25 Ind. 243; jury, in an affidavit, proof was given p 2 Ro. Rep. 41,

Thus, in a common case, if a witness be asked whether goods were paid for on a particular day,and he answer in the affirmative; if the goods were really paid for, though not on that particular day, it will not be perjury, p unless the day be material. It has even been declared that if a person swear that J. S. beat another with his sword, and it turn out that he beat him with a stick, this is not perjury; for all that was material is the battery. I

And generally, superfluous and flagrantly irrelevant matter, stated in an affidavit for a writ of habeas corpus, although false, is not perjury. r

$ 2229. Circumstantiality of detail. — Yet when such superfluous matter goes to give circumstantiality to the narrative, it becomes material as contributing largely to the witness's credibility. Bald statements of results (e. g. “He struck me," as in a case just mentioned) want one of the prime essentials of reliable testimony. For a witness knowingly to fabricate details, in order to strengthen his credibility, is as much perjury as is any other false swearing. Hence has it been wisely held that perjury may be committed in swearing falsely to a collateral matter with intent to prop the testimony on some other point. 8 Thus where three or more persons were alleged to be jointly concerned in an assault, and it was contended to be immaterial, if all participated in it, by which of them certain acts were done, the contrary was held, and it was ruled that evidence as to the acts of either, if Com. v. Smith, 11 Allen, 243 ; State 2 F. & F. 361; R. v. Schlesinger, 10 v. Bailey, 34 Mo. 350; R. v. Naylor, Q. B. 670 ; 2 Cox C. C. 200. Post, $ 11 Cox C. C. 13; R. v. Alsop, 11 Cox 2332 a. Upon the trial of C. for perC. C. 264.

that the signature to the affidavit was q Hetley, 97. See 1 Hawk.c. 69, s. 8. in his handwriting; and there was no

✓ White v. State, 1 Sm. & Marsh. other proof that he was the person 149.

who made the affidavit. The prisoner 8 R. v. Tyson, Law Rep. 1 C. C. was then called, and swore that the 107; 11 Cox C. C. 1; Com. v. Pollard, affidavit was used before the taxing 12 Metc. 225; Floyd v. State, 30 Ala. master, that C. was then present, and 511; State v. Shupe, 16 Iowa, 36; that it was publicly mentioned, so that State i. Dayton, 3 Zab. 49. On an everybody present must have heard it, assignment of perjury by a defendant that the affidavit was C.'s: It was in a bastardy case, that he had never held, that the matters sworn were kissed the prosecutrix, the question of material upon the trial of C. R. v. materiality was held by Wightman, Alsop, 11 Cox C. C. 264 — C. C. R. J., to be for the jury. R. v. Goddard,

42.

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