ficer or body; that is, that it was a false oath taken under such circumstances as that an oath was authorized by law. In the case of an affidavit it must appear that it was intended for use in, and was material to, some proceeding or inquiry in which such an affidavit would be admissible; but it is not necessary to allege that the affidavit was actually used.'

§ 880. The averment as to falsity.-The indictment must expressly allege the falsity of the statement under oath relied on to constitute perjury, by negativing such statement. If the statement was upon information and belief, while the indictment traverses in unqualified language the truth of the fact thus stated, perjury is not charged, because the fact might have been believed by the affiant to have been otherwise;" moreover, the statement may have been true as a matter of fact, and yet false according to the knowledge or belief of the defendant, and therefore have been perjury; so that it is not the absolute falsity of the statement itself as a statement of fact, but its falsity as the statement of the defendant, that is material. Therefore it is said that the indictment need not negative the truth of the statement itself. But the indictment should clearly and distinctly aver that defendant swore falsely;" or use equivalent language. The falsity may be shown by a general averment of facts showing that such statement was necessarily false, and such general contradiction is sufficient where the falsity is thus made clearly to appear, although the identical statement is not in terms contradicted. Where time, place or manner are involved in the alleged false statement, but not as material elements thereof, the assignment as to falsity should not be limited to such time, place or manner. If

18. v. Geer, 46 Kan. 529; S. v. Ayer, 40 Kan. 43; S. v. Smith, 40 Kan. 631; S. v. Simons, 30 Vt. 620; U. S. v. Wilcox, 4 Blatch. 391.

2S. v. Lloyd, 77 Wis. 630; P. v. Fox, 25 Mich. 492; Rex v. Foster, Russ. & Ry. 459.

'S. v. Hopper, 133 Ind. 460.

4C. v. Monahan, 9 Gray, 119; Gibson v. S., 44 Ala. 17; Henderson v. P., 117 Ill. 265.

5 Lambert v. P., 76 N. Y. 220; Williams v. S., 7 Humph. 47; Leverette v.

S., 32 Tex. Ap. 471; Rex v. Harris, 5
B. & Ald. 926.

6 S. v. Cruikshank, 6 Blackf. 62; S. v. Gates, 17 N. H. 373.

7S. v. Nickerson, 46 Ia. 447; Maddox v. S., 28 Tex. Ap. 533; Reg. v. Oxley, 3 C. & K. 317.

8 S. v. Voorhis, 52 N. J. 351; S. v. Smith, 63 Vt. 201; De Bernie v. S., 19 Ala. 23; Reg. v. London, 12 Cox, 50. 9 Henderson v. P., 117 Ill. 265; S. v. Swaim, 97 N. C. 462; S. v. Ah Sam, 7 Oreg. 477; Harp v. S., 59 Ark. 113;

the indictment charges a false statement in a schedule in a bankruptcy proceeding, it should be alleged wherein such statement is false and incorrect. But it is sufficient to allege that property was omitted, without setting out a full and particular account of the property of the petitioner. The traverse of the statement alleged to have been false must be particular as to what the facts were; and it is not enough to simply say that the statements were wilfully and deliberately made and were false to the knowledge of defendant; but the indictment should continue," whereas in truth and in fact," and then state what the facts were. If a part only of the statement is charged to have been false, such part must be pointed out and its truth specifically denied.

7

§ 881. Intent; knowledge.- In order to show that the false testimony was intentionally false it is usual and proper to allege that it was wilfully and corruptly given; and the omission of such allegation is not cured by a general concluding clause in the indictment charging that defendant did wilfully and corruptly commit perjury. The omission of "wilfully" has been held to render the indictment bad. It seems that where the

Martinez v. S., 7 Tex. Ap. 394; Reg. v. Stolady, 1 F. & F. 518; Reg. v. Whitehouse, Cox, 86; Reg. v. Burraston, 4 Jur. 697.

1U. S. v. Morgan, Morris, 341. An indictment for false return of property for assessment should show that the property not returned was subject to assessment: S. v. Cunningham, 66 Ia. 94.

2 P. v. Phelps, 5 Wend. 9; U. S. v. Chapman, 3 McLean, 390; U. S. v. Deming, 4 McLean, 3.

3 S. v. Bixler, 62 Md. 354.

4 Gabrielsky v. S., 13 Tex. Ap. 428. Turner v. S., 30 Tex. Ap. 691. 6S. v. Mace, 76 Me. 64; Thomas v. S., 51 Ark. 138.

7 S. v. Davis, 84 N. C. 787; S. v. Bobbitt, 70 N. C. 81; Thomas v. C., 2 Rob. (Va.) 795; P. v. Ross, 103 Cal. 425; Rex v. Stevens, 5 B. & C. 246. In Florida it is said that the allegation should be that the oath taken was

wilfully false: Robinson v. S., 18 Fla. 898; but the word " 'wilful is not essential in an indictment for perjury at common law, though it may be under the statute, 5 Eliz., ch. 9: Rex v. Cox, 1 Leach, C. C. 71.

8 S. v. Morse, 90 Mo. 91; S. v. Day, 100 Mo. 242. Such concluding clause is surplusage: U. S. v. Wood, 44 Fed. R. 753; Ryalls v. Reg., 11 Q. B. 781; Reg. v. Hodgkiss, L. R. 1 C. C. 212.

9 S. v. Day, 100 Mo. 242; U. S. v. Edwards, 43 Fed. R. 67. But other words may supply the omission of "wilfully:" S. v. Spencer, 45 La. An. 1. In Texas, under statutory definition, it is held necessary to allege that the false statement was deliberately and wilfully made: S. v. Webb, 41 Tex. 67; S. v. Perry. 42 Tex. 238; Allen v. S., 42 Tex. 12; Smith v. S., 1 Tex. Ap. 620. But it is not necessary to charge that the false statement was not made through inad

oath is charged as wilful it is not necessary to also charge that it was corrupt. There are, as to this crime, no peculiar words of art essential, as in some felonies, to the description of the offense. The indictment must also show knowledge on the part of the accused of the falsity of the statement at the time it was made, and it is not sufficient to merely negative the truth of the statement. But the charge that the statement was wilfully false necessarily shows that it was knowingly false. And the allegation that defendant did at a certain time testify to certain matters, "whereas he did know that they were false," sufficiently indicates such knowledge at the time the testimony was given. But in a prosecution for perjury in swearing as an insolvent debtor to a schedule which omitted certain claims belonging to insolvent, it was held necessary to allege that at the time of taking the oath he knew and remembered that such claims were due and owing to him."

§ 882. Time and place. The indictment should allege, as in other cases, the time of the commission of the crime charged;' and it is said that if the indictment charges the perjury as of a wrong term of court the variance is fatal. But as a general rule the date need not be proven as alleged, unless the perjury was by means of an instrument set out by its tenor; in that

vertence or by mistake: Brown v. S., 9 Tex. Ap. 171.

1S. v. Bixler, 62 Md. 354; U. S. v. Hearing, 26 Fed. R. 744.

2 Resp. v. Newell, 3 Yeates, 407. 3S. v. Lea, 3 Ala. 602; S. v. Carland, 3 Dev. 114; S. v. Champion, 116 N. C. 987; Juaraqui v. S., 28 Tex. 625; S. v. Morse, 1 Greene (Ia.), 503.

Johnson v. P., 94 Ill. 505; S. v. Stein, 48 Minn. 466; S. v. Smith, 63 Vt. 201.

as to his belief: S. v. Raymond, 20 Ia. 582. In Oregon it is said that averment as to knowledge of the falsity of the matter is unnecessary, although such fact must be proven: S. v. Ah Lee, 18 Oreg. 540.

7 S. v. Fenlason, 79 Me. 117, 7 Am. Cr. R. 495 and note; Rhodes v. C., 78 Va. 692; U. S. v. Law, 50 Fed. R. 915; U. S. v. Bowman, 2 Wash. 328.

8 S. v. Lewis, 93 N. C. 381.

9 Richey v. C., 81 Ky. 524; C. v.

'S. v. Wood, 17 Ia. 18; S. v. Lin- Davis, 94 Ky. 612; Lucas v. S., 27 denburg, 13 Tex. 27.

6 C. v. Cook, 1 Rob. (Va.) 729. Under the Iowa statute it is not necessary to allege that defendant knew the falsity of the matter sworn to, unless the assignment of perjury is upon the statement of the accused

Tex. Ap. 322; U. S. v. Matthews, 68 Fed. R. 880; S. C., Matthews v. U. S., 161 U. S. 500. In such a prosecution time and place are sometimes material and necessary to be alleged with precision and sometimes not: Rex v. Aylett, 1 Term R. 63.

case the instrument as introduced in evidence must correspond in date with the copy set out.1

§ 883. Separate counts; several assignments. — Several charges of perjury may be made in different counts; but if the statement is false in several particulars it is not necessary to embrace those particulars in separate counts, but they may be included in the same count. Where falsity of the statement in several particulars is charged it is usual to assign the falsity of each, and proof of falsity as to any one particular assigned, if material, will be sufficient to warrant a conviction." But if the entire matter alleged to have been falsely stated is set out in one averment the whole must be proved. If one assignment is sufficient, an improper assignment in connection with it will not vitiate the indictment; and such improper assignment will not be a ground for quashing the indictment, and can only be taken advantage of by excepting to the evidence introduced thereunder.' If the attention of the court is called, however, to the improper assignment, it should be withdrawn from the jury or it will not appear whether the verdict is on the proper or the improper assignment, and the conviction cannot be sustained. Where there are several assignments the falsity of each should be specially alleged.'

§ 884. Joinder of defendants.— Perjury is a separate act in each person committing it, and two or more cannot be jointly charged with the crime. But it is said that two persons may be charged in the same indictment, the one with perjury and the other with procuring the perjury to be committed."

1 Dill v. P., 9 Colo. 469; Matthews

v. U. S., 161 U. S. 500.

7 C. v. Sargent, 129 Mass. 115.

8 Wood v. P., 59 N. Y. 117. If no

2 Ryalls v. Reg., 11 Q. B. 781; Cas- evidence is given as to one assigntro v. Reg., 6 Ap. Cas. 229.

3 S. v. Bishop, 1 D. Chip. 120; S. v. Bordeaux, 93 N. C. 560.

4 C. v. Johns, 6 Gray, 274; Harris v. P., 64 N. Y. 148; S. v. Blaisdell, 59 N. H. 328; Smith v. S., 103 Ala. 57; Moore v. S., 32 Tex. Ap. 405; S. v. Day, 100 Mo. 242; Reg. v. Chapman, 2 C. & K. 846.

ment, it is not competent for defendant to show that as to such assignment the testimony was true: Rex v. Hemp, 5 C. & P. 468.

9 Gabrielsky v. S., 13 Tex. Ap. 428; Reg. v. Burraston, 4 Jur. 697. 10 Rex v. Philips, 2 Stra. 921; Resp. v. Goss, 2 Yeates, 479.

11 C. v. Devine, 155 Mass. 224. The

5 S. v. Blaisdell, 59 N. H. 328; Rex correctness of this decision may be

v. Leefe, 2 Camp. 134.

6 S. v. Smith, 63 Vt. 201.

questioned. It is true that principal and accessory may be charged in

§ 885. Forms of indictment.-The common-law indictment for perjury is an exceedingly complicated instrument by reason of the difficulty of setting out the various essentials, especially the nature of the proceeding, the jurisdiction of the court, the administration of the oath, the testimony given, and its falsity. As already indicated, these requirements have been simplified in some states by express statutory provisions as to what shall be sufficient in an indictment for the crime, and in other states by general provisions as to sufficiency of indictments. The forms here given are suggestive only; they would probably be found good in most states, but it will be necessary in applying them to bear in mind the statutory provisions.

PERJURY IN PROOF OF ALIBI.

Heretofore, to wit, at the January term, A. D. 1896, of the district court of Johnson county, held on the 25th day of Jannary, A. D. 1896, a certain indictment in which John Adams was charged with the crime of burglary in feloniously breaking and entering the dwelling-house of one Timothy Brown came on to be tried in due form of law and was then and there tried by a jury of such county in that behalf duly sworn, upon which said trial the said A. B. [defendant] appeared as a witness for and in behalf of the said John Adams, and was then and there duly sworn before the duly authorized clerk of said court, that the evidence which he, the said A. B., should give to the court there, and the said jury so sworn as aforesaid, touching the matter then in question in the trial of said indictment, should be the truth, the whole truth, and nothing but the truth; and on the said trial of said indictment it became material to inquire where the said John Adams was on the night of the fourteenth and fifteenth of December, A. D. 1895, at which time, as appeared from the evidence, said burglary charged in the indictment aforesaid was committed, and the said A. B. then and there feloniously, falsely, knowingly, maliciously, wilfully and cerruptly testified in substance as follows, to wit: that between the hours of ten and twelve o'clock of said night, the said A. B. was in company with the said John Adams at the house of one Peter King, in the city of Iowa City, in said county of John

the same indictment, but the crime of suborning perjury seems to be considered a distinct offense from that of perjury. Certainly there must be some crimes so individual in their nature that no accessory is

possible. Could one who had never been married at all be convicted of bigamy because he had procured and induced a man already married to marry a second wife?