XV. Compounding informations.

meanor against public justice, by contributing to make the laws odious to the people (e). At once therefore to discourage malicious information, and to provide that offences, when once discovered, shall be duly prosecuted, it was enacted by statute 18 Eliz. c. 5, s. 4, that if any person, informing under pretence of any penal law, makes any composition without leave of the court, or takes any money or promise from the defendant to excuse him (which demonstrates his intent in commencing the prosecution to be merely to serve his own ends, and not for the public good), he shall inter alia forfeit 10l., and shall be for ever disabled to sue on any popular or penal statute (ƒ). (662)

The above enactment does not apply to offences cognizable only before magistrates (g), but the taking of the amount of penalty imposed is an offence within its provisions, although there be no action or proceeding pending for it, and although in fact no offence liable to the penalty have been committed (h). Moreover, where an offence involves damage to an * injured party [* 152] for which he may maintain an action, it is competent for him, notwithstanding the public nature of the offence, to comprise or settle his private damage as he may think fit (i); and it is not uncommon, when a person has been convicted of a misdemeanor, which principally and more immediately affects some individual, as a battery, imprisonment, or the like, for the court to permit the defendant to speak with the prosecutor,' before any judgment is pronounced; and if the prosecutor declares himself satisfied, to inflict but a trivial punishment. This is done to reimburse the prosecutor his expenses, and make him some private amends, without the trouble and circuity of a civil action.

XVI. Conspiracy

XVI. The crime of conspiracy is complete if two or more than two persons agree to do an illegal thing: that is, to effect something in itself unlawful, or to effect by unlawful means something which in itself may be to pervert the indifferent or even lawful (k). Such a combination or agreement course of justice. may be with a view to obstructing, perverting, or defeating the course of public justice (1). Thus a conspiracy to indict an innocent man of felony, falsely and maliciously, who is accordingly indicted and acquitted, is a manifest abuse of public justice (m); for which the party injured may have

(e) Collins v. Blantern, 1 Smith L. C. 6th ed. 325, and Note thereto; Keir v. Leeman, 9 Q. B. 371; 6 Id. 308.

(f) The punishment for the above offence is now fine or imprisonment, or both, as the court shall think fit. See 56 Geo. 3, c. 138. (g) R. v. Crisp, 1 B. & Ald. 282.

(h) R. v. Gotley, Russ. & R. C. C. 84; Reg. v. Best, 2 Mood. C. C. 124.

(i) Judgment, Keir v. Leeman. 9 Q. B. 305. (k) Per Tindal, C. J., delivering the opinion of the judges, in O'Connell v. Reg., 11 Cl. & F. 155.

(1) R. v. Maubey, 6 T. R. 619; Reg. v. Hamp, 6 Cox, C. C. 167.

(m) It is no excuse for a conspiracy to carry on a malicious prosecution, that the indictment preferred was insufficient, or that the court before which it was taken had no jurisdiction to try it, although in consequence of these circumstances the party was really never brought into danger. 1 Hawk. P. C. c. 72, s. 3. Nor will it avail the defendant that he intended only to give evidence on a trial not then commenced, for the law makes the mere intent in such case criminal. If, how

(662) The compounding of penalties is said to be " an offense at common law, of dangerous tendency, highly derogatory to public example, and prosecutions are no more to be improp erly suppressed by public informing officers than by common informers. And all bonds or notes, into the consideration of which the compounding of a felony or the suppression of a prosecution therefor in any part enters, are void and incollectible." Town of Hinesburgh v. Sumner 9 Vt. 23.

a civil action (n), (663) or * the conspirators, for there must be at [* 153] least two to form a conspiracy, may be indicted at the suit of the crown, and were by the ancient common law (0) to receive what was called the villenous judgment; viz. to lose their liberam legem, whereby they were dis

ever, the principal charge is in progress, it may be proper to apply to the court to defer the judicial investigation of the conspiracy till that is decided. Ibid. s. 4.

(n) Ante, vol. iii.

(0) Bro. Abr. tit. Conspiracy, 28.

(663) The gist of a conspiracy is the unlawful confederacy to do an unlawful act, or a lawful act for an unlawful purpose. Collins v. Com., 3 Serg. & R. (Penn.) 220; Com. v. Judd, 2 Mass. 337; State v. Buchanan, 5 Harr. & J. (Md.) 317; State v. Burnham, 15 N. H. 396; State v. Rowley, 12 Conn. 101. The offense is complete when the confederacy is made, and no overt acts need be alleged or proved. State v. Pulle, 12 Minn. 164; State v. Straw, 42 N. H. 393; Isaacs v. State, 48 Miss. 234; Com. v. Corlies, 8 Phila. (Penn.) 450; People v. Mather, 4 Wend. 259. And see State v. Norton, N. J. L. (3 Zabr.) 33.

A conspiracy is a joint offense, and less than two persons cannot be accused of it. Com. v. Manson, 2 Ashm. (Penn.) 31; Com. v. Irwin, 8 Phila. (Penn.) 380; United States v. Cole, 5 McLean's C. C. 513. A husband and wife, being regarded legally as one, cannot be accused of the offense; but they may be jointly indicted for the offense, if there is also another conspirator. State v. Covington, 4 Ala. 603; Com. v. Woods, 7 Law Rep. 58. See Kirtley v. Deck, 2 Munf. (Va.) 15.

Among indictable conspiracies are the following: A conspiracy to commit an assault and battery (Com. v. Partman, 29 Penn. St. 296); to obtain goods by false pretenses (Johnson v. People, 22 Ill. 314); to cheat an individual of real estate, as well as of personal property (People v. Richards, 1 Mich. 216. And see Com. v. Warren, 6 Mass. 74; Com. v. Ward, 1 id. 473; Lambert v. People, 7 Cow. 166); to cheat one by making him drunk and playing falsely at cards with him (State v. Younger, 1 Dev. [N. C.] 357); to seduce a female (Smith v. People, 25 Ill. 17; State v. Murphy, 6 Ala. 765; Anderson v. Com., 5 Rand. [Va.] 626; Respublica v. Hevice, 2 Yeates [Penn.], 114); to procure criminal process for improper purposes (Slomer v. People, id. 70); or to commit a felony or misdemeanor, or any act that is criminal. People v. Mather, 4 Wend. 265; Com. v. Kingsbury, 5 Mass. 106; State v. Buchanan, 5 Harr. & J. (Md.) 317. So all conspiracies to injure others, by preventing, obstructing, or defeating the course of public justice, by fabricating or suppressing evidence, are indictable. State v. De Witt, 2 Hill (S. C.), 282; State v. Noyes, 25 Vt. 415.

If a client and attorney enter into a conspiracy to resist an officer in performing his duty, both are equally guilty. U. S. v. Smith, 1 Dill. 212.

As to conspiracies to raise or depress the price of labor, etc., see State v. Donaldson, 32 N. J. L. 151; People v. Fisher, 14 Wend. 9; Master Stevedore's Ass. v. Walsh, 2 Daly, 1; Com. v. Hunt, 4 Metc. (Mass.) 111; Morris Run Coal Co. v. Barclay Coal Co., 68 Penn. St. 173.

A conspiracy to commit a higher offense merges in that offense, if committed; but in case of a conspiracy to commit a crime of the same grade, there is no merger. State v. Mayberry, 48 Me. 218. See State v. Murray, 15 id. 100; State v. Noyes, 25 Vt. 415; People v. Richards, 1 Mich. 216; People v. Mather, 4 Wend. 229.

As to Maine, see

In some of the States the subject of conspiracy is regulated by statute. State v. Hewett, 31 Me. 386; id. 396; Pennsylvania, Clary v. Com., 4 Barr, 210; New York, People v. Fisher, 14 Wend. 9; Scott v. People, 62 Barb. 62, 83; New Jersey, State v. Norton, 3 Zabr. 33. So there are some statutory conspiracies created by the laws of the United States, as to which see U. 8. v. Cole, 5 McLean, 513; U. S. v. Hand, 6 id. 274.

A conspiracy is only a misdemeanor, even where its object is the commission of a felony (People v. Mather, 4 Wend. 229, 265); and is punishable at common law by fine and impris onment, or either, in the discretion of the court. See State v. Roberts, 1 Hayw. (N. C.) 176. As to the punishment of the offense in Pennsylvania, see Clary v. Com., 4 Barr, 210; Williams v. Com., 10 Casey, 178; Hartmann v. Com., 5 Barr, 60.

A mere conspiracy, however atrocious, cannot be the subject of a civil action, unless it results in actual damage. Harron v. Hughes, 25 Cal. 555; Kimball v. Harman, 34 Md. 407. But if any damage is sustained in consequence of the conspiracy, an action lies, though the act which was designed be not done. Patten v. Gurney, 17 Mass. 186.

PERJURY.

credited and disabled as jurors or witnesses; to forfeit their goods and chattels, and lands for life; to have those lands wasted, their houses rased, their trees rooted up, and their own bodies committed to prison (p). But the villenous judgment has by long disuse become obsolete; and instead thereof the delinquents are usually sentenced to imprisonment and fine (q).

Conspiracy, regard being had to its object, may be viewed as directed against the public peace, or against the person or the property of an individual, and will accordingly be again mentioned in ensuing chapters (r).

XVII. Perjury

And that is the crime of wilful XVII. The next offence against public justice may occur when the suit is past its commencement, and come to trial. and corrupt perjury; which is defined by Sir Edward Coke (s), and subornation to be a crime committed when a lawful oath is administered, in of perjury. some judicial proceeding, to a person who swears wilfully, absolutely, and falsely, in a matter material to the issue or point in question.

Our common law takes no notice of any perjury but such as is committed in some court of justice, having power to administer an oath; or before a magistrate or other officer, invested with a similar authority, in some proceeding relative to a civil suit or a criminal prosecution: for it esteems all other oaths unnecessary at least, and therefore will

(p) 1 Hawk. P. C. 193.

(9) See also 14 & 1 Vict. c. 100, s. 29. (r) See particularly Chap. 13, in which also is considered the offence of sending letters

not punish the breach of them. (664)

threatening to accuse any person of a crime.
As to a conspiracy to commit murder, post,
chap. 13.

(8) 3 Inst. 164.

(664) Perjury, as defined by an American judge, "is a corrupt, willful, false oath, taken in a judicial proceeding, in regard to a matter or thing material to a point involved in the proceeding. The oath must be taken before some officer or court having authority to administer it," PETERS, J. Hood v. State, 44 Ala. 81, 86. And see Hopkins v. Smith, 3 Barb. 599; Martin v. Miller, 4 Mo. 47; Pankey v. People, 1 Scam. (Ill.) 80; People v. Collier, 1 Mann. (Mich.) 137; State v. Tappan, 1 Foster (N. H.), 56; Pickering's Case, 8 Gratt. (Va.) 628: Jackson v. State, 1 Carter (Ind.), 184; McGregor v. State, id. 232; Bernie v. State, 19 Ala. 23. Form of oath. Where the form of the oath is prescribed by statute, it must be substantially followed; but mere verbal deviations therefrom do not exempt the person swearing from the pains of perjury. State v. Dayton, 3 Zabr. (N. J.) 49; State v. Gates, 17 N. H. 373; Trask, 42 Maher v. State, 2 Minn. 444; Sharp v. Wilhite, 2 Humph. (Tenn.) 434; Ashburn v. State, 15 Ga. 246. Where a statute requires testimony to be taken in writing, and, contrary to the statute, it is received orally, no indictment for perjury will lie upon it. State v. See State v. Helle, 2 Hill (S. C.), 290. Vt. 152. corporal oath" and "solemn oath " are equivalent; and an oath taken with An oath administered The terms the hand uplifted is properly described by either term in an indictment for perjury. Jackson v. State, 1 Carter (Ind.), 154. See State v. Norris, 9 N. H. 96. upon a book other than the holy evangelists, the witness and the administering tribunal Buzzell, 16 Pick. (Mass.) 153; Com. v. Knight, both supposing it to be the Bible, is a valid oath, and binding upon the witness. People v. Cook, 8 N. Y. (4 Seld.) 67, 84. And see Com. v. 12 Mass. 274; Campbell v. People, 8 Wend. 636.

Voluntary and incompetent witness. It is not necessary to sustain an indictment for perjury that the witness should have been served with a subpoena, or that he be compellable to testify. The mere fact of his testifying under oath, whether reluctantly or voluntarily, is sufficient. Com. v. Knight, 12 Mass. 274. So it is a general rule that a witness who willfully testifies falsely as to a material fact is guilty of perjury, though he was not a competent witness in the case (Chamberlain v. People, 23 N. Y. [9 Smith] 85); and the rule is applicable even in a case where a party becomes a witness for himself, under circumstances in which his testimony is not by law receivable. Ib.; Montgomery v. State, 10 Ohio, 220; Res. v. Newell, 3 Yeates (Penn.), 417; State v. Molier, 1 Dev. (N. C.) 263; State v. Keene, 26

[* 154] *The legislature has indeed interfered to repress the inconvenience adverted to by the statute 5 & 6 Will. 4, c. 62 (t), of which sect. 13 recites, that a practice had prevailed of administering and receiving oaths and

(t) By which a declaration is, in various cases therein specified, substituted for an oath.

Me. 33; Van Steenbergh v. Kortz, 10 Johns. 167; Haley v. McPherson, 3 Humph. (Tenn.) 104; Sharp v. Wilhite, 2 id. 434. But see State v. Hamilton, 7 Mo. 300.

Tribunal administering oath. To constitute perjury, the tribunal or magistrate must have jurisdiction of the case in which the false oath was taken (Arden v. State, 11 Conn. 408; State v. Fassett, 16 id. 457; Pankey v. State, 1 Scam. [Ill.] 80; Weston v. Lumley, 33 Ind. 486; State v. Furlong, 26 Me. 69; State v. Gallimon, 2 Ired. [N. C.] 374; Steinson v. State, 6 Yerg. [Tenn.] 531; State v. McCroskey, 3 McCord [S. C.], 305); and the oath must be administered by one having legal authority. Ib.; Morrell v. People, 32 Ill. 499; McGregor v. State, 1 Smith (Ind.), 179. See Muir v. State, 8 Black f. (Ind.) 154; Mahan v. Berry, 5 Mo. 21. But an oath administered by a clerk in presence of the court is a swearing by the court. See Server v. State, 2 Blackf. (Ind.) 35; State v. Gregory, 2 Murph. (Tenn.) 69; State v. Hascall, 6 N. H. 358.

If the court has jurisdiction of the subject-matter, perjury may be committed, although the proceedings be not strictly regular. State v. Lavalley, 9 Mo. 824; see Van Steenbergh v. Kortz, 10 Johns. 167; State v. Hall, 7 Black f. (Ind.) 25. As to perjury before an ecclesiastical tribunal, see Chapman v. Gillet, 2 Conn. 40. It is perjury to testify falsely before a grand jury (Com. v. Pickering, 8 Gratt. [Va.] 628; State v. Fassett, 16 Conn. 457; Com. v. Parker, 2 Cush. [Mass.] 212; State v. Offut, 4 Blackf. [Ind.] 355); or, under the insolvent debtor's act (Com. v. Calvert, 1 Va. Cas. 181 ; see Res. v. Wright, 1 Yea. [Penn.] 205); or, after a conviction, on the question of mitigation of sentence (State v. Keenan, 8 Rich. [S. C.] 456); or, in aid of a petition for a writ of habeas corpus. White v. State, 1 Smed. & M. (Miss.) Ch. 149. So, if a person brought before the tribunal to serve as a juror, answers corruptly in reply to questions proposed by the judge as to his competency, it is perjury. State v. Wall, 9 Yerg. (Tenn.) 347; State v. Moffot, 7 Humph. (Tenn.) 250. And a false oath taken in proceedings before referees (State v. Keene, 26 Me. 33); or, on a motion for a continuance (State v. Shupe, 16 Iowa, 36; State v. Flagg, 27 Ind. 24; Morrell v. People, 32 Ill. 499); or, in justifying bail in any of the courts (State v. Lavalley, 9 Mo. 824); or, in answer to a bill in equity (Com. v. Warden, 11 Metc. [Mass.] 406), is perjury.

False swearing in a naturalization proceeding is perjury at common law, and may be punished as such by indictment in a State court. Rump v. Com., 30 Penn. St. 475; State v. Whittemore, 50 N. H. 245; but see People v. Sweetman, 3 Park. 358.

Must be in a judicial proceeding. To sustain an indictment for perjury, it must appear that the false swearing was in a judicial proceeding. State v. Simons, 30 Vt. 620; State v. Chamberlain, id. 559; Com. v. Warden, 11 Metc. (Mass.) 406. No extra judicial oath will sustain an indictment for the offense. Jackson v. Humphrey, 1 Johns. 498; Pegram v. Styron, 1 Bailey (S. C.), 595; Waggoner v. Richmond, Wright (Ohio), 173; Lamden v. State, 5 Humph. (Tenn.)83. Nor can the offense be committed in an official oath. State v. Dayton, 3 Zabr. (N. J.) 49. See State v. Stephenson, 4 McCord (S. C.), 165; Chapman v. Gillet, 2 Conn. 40; Arden v. State, 11 id. 408.

But false swearing, 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. 2 Whart. Cr. Law, § 2198; and see Rump v. Com., 30 Penn. St. 475.

Materiality of the testimony. A false oath as to a matter not material to the issue will not sustain an indictment for perjury. Nelson v. State, 47 Miss. 621; State v. Bowlus, 3 Heisk. (Tenn.) 29; Bullock v. Koon, 4 Wend. 531; State v. Dodd, 3 Murph. (N. C.) 226; Com. v. Knight, 12 Miss. 274; State v. Flagg, 25 Ind. 243; State v. Bailey, 34 Mo. 350; Pankey v. People, 1 Scam. (Ill.) 80. Thus, an allegation, in an application for an attachment, or for a writ of habeas corpus, of something not required to be alleged, although false, is not perjury. Hood v. State, 44 Ala. 81; Gibson v. State, id. 17; White v. State, 1 Smed. & M. (Miss.) 149. But to constitute the offense, the evidence need not affect the main issue, but only a collateral one. State v. Lavalley, 9 Mo. 834; State v. Shupe, 16 Iowa, 36; State v. Keenan, 8 Rich. (S. C.) 456; Com. v. Pollard, 12 Metc. (Mass.) 225; Floyd v.

affidavits voluntarily taken and made in matters not the subject of judicial inquiry, nor in anywise pending or at issue before the justice of the peace or other person by whom such oaths or affidavits had been administered or received; and that doubts had arisen whether or not such practice were legal; and for the more effectual suppression of such practice and removal of such doubts, enacts that it shall not be lawful for any justice of the peace or other person to administer, or cause or allow to be administered, or to receive, or cause or allow to be received, any oath, affidavit, or solemn affirmation touching any matter or thing whereof such justice or other person hath no jurisdiction or cognisance by some statute in force at the time being (u).

(u) The section provides, however, that nothing therein contained" shall be construed to extend to any oath, affidavit, or solemn affirmation before any justice in any matter or thing touching the preservation of the peace, or the prosecution, trial, or punishment of offences, or touching any proceedings

before either of the houses of parliament, or any committee thereof respectively, nor to any oath, affidavit, or affirmation which may be required by the laws of any foreign coun try to give validity to instruments in writing designed to be used in such foreign countries respectively."

State, 30 Ala. 511; State v. Norris, 9 N. H. 96; and see Studdard v. Linville, 3 Hawks. (N. C) 474.

The opinions of witnesses (such as that of experts, and of jurists testifying as to foreign laws), if relevant and material, are proper subjects of perjury. Patrick v. Smoke, 3 Strobh. (S. C.) 147; Fergus v. Hoard, 15 Ill. 357; State v. Lea, 3 Ala. 602; State v. Cruikshank, 6 Blackf. (Ind.) 62; see Hoch v. People, 3 Mich. 552; Com. v. Thompson, 3 Dana (Ky.), 301. But an indictment for perjury cannot be maintained when the supposed perjury depends upon the construction of an instrument in writing. State v. Woolverton, 8 Blackf. (Ind.) 452. It is no perjury for a defendant to deny having used the words “value received,” in a promissory note, such words not being material. People v. McDermott, 8 Cal. 288. But, where there are certain interlineations in a written instrument, shown to have been made by one or the other of two persons, and one of the two falsely testifies that he did not make them, he commits perjury. Smith v. Deaver, 6 Jones (N. C.), 563.

Testimony tending to affect the verdict of the jury, or extenuating or increasing the damages or punishment, and thus influencing the judgment of the court, is material. State v. Norris, 9 N. H. 96; Stephens v. The State, 1 Swan. (Tenn.) 157.

Testimony as false and corrupt. To constitute perjury, the testimony must be false and corrupt. If the false oath is taken from inadvertence or mistake, it cannot amount to vol. untary and corrupt perjury. Steinman v. Mc Williams, 6 Barr (Penn.), 170; United States v. Passmore, 4 Dall. 378; Jesse v. State, 20 Ga. 156; Green v. State, 41 Ala. 419. But it is perjury where one swears willfully, absolutely, and falsely, to a matter which he believes, if he has no probable ground for such belief. Com. v. Cook, 1 Rob. (Va.) 729; Com. v. Cornish, 6 Binney (Penn.), 249. Or, if he swears to a particular fact, without knowing at the time whether it is true or false. State v. Gates, 17 N. H. 373; Com. v. Halstat, 2 Boston Law Rep. 177. So, if a witness supposes he is testifying falsely, it is perjury, though in fact his testimony is true. See People v. McKinney, 3 Park. 510; State v. Cruikshank, 6 Black f. (Ind.) 62; 2 Bish. Cr. Law, § 1043. And if a witness testifies to two opposite things which are irreconcilable, perjury is committed in making the false statement, but not in making the true one. Martin v. Miller, 4 Mo. 47; see Dodge v. State, 4 Zabr. (N. J.) 455; People v. Burden, 9 Barb. 467; United States v. Wood, 14 Pet. 430.

An honest oath taken under advice of counsel is not perjury. U. S. v. Stanley, 6 McLean, 409; Hood v. State, 44 Ala. 81; see U. S. v. Conner, 3 id. 573; U. S. v. Dickey, 1 Morris, 412. And where the witness truly states the facts to the writer of an affidavit, and swears to it when drawn up, he is not guilty of perjury, though the statements are written erroneously by the amanuensis. Jesse v. State, 20 Ga. 156. So, it may be stated generally, that false swearing to a fact, to the best of the opinion of the witness, which he, though without any reasonable cause, believes to be true, is not perjury. Com. v. Brady, 5 Gray (Mass.), 78. See United States v. Shellmire, Bald. 370; U. S. v. Atkins, 1 Sprague, 558; Cothran v. State, 39 Miss. 541.