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son, and that between the hours of twelve and four o'clock of said night, the said A. B. was in company with the said John Adams at the house of one William Jones, in said city of Iowa City; whereas, in truth and in fact, as the said A. B. well knew, the said John Adams was not at the house of the said Peter King between the hours of ten and twelve o'clock of said night, or during any portion of that time; and whereas, in truth and in fact, as the said A. B. well knew, the said John Adams was not at the house of the said William Jones between the hours of twelve and four o'clock of said night or during any portion of that time. Wherefore the grand jurors aforesaid, on their oath aforesaid, do say that the said A. B. did, in manner and form aforesaid, commit wilful and corrupt perjury.'

To illustrate the method of charging perjury in an oath not taken in a judicial proceeding, the following is presented:

PERJURY IN AFFIDAVIT FOR NATURALIZATION.

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That A. B., on, at Hancock, in the county of Hillsborough aforesaid, giving his testimony in and by a certain affidavit by him subscribed as a witness relative to an application in writing thereafter to be made to the police court of the city of Nashua, in said county, to be admitted a citizen of the United States, by one B. C., an alien and a subject of Victoria, Queen of the United Kingdoms of Great Britain and Ireland, in his own proper person, on the said — at Hancock aforesaid, appeared and was then and there sworn as such witness for said B. C., and in support of said application by and before Joseph Davis, a justice of the peace within and for said county, then and there having lawful and competent power and authority to administer the said oath to the said A. B. in that behalf; and as such witness he, the said A. B., took his corporal oath concerning the matter set forth in said affidavit pertaining to said application, and that the facts therein stated and by him subscribed were true, which said oath the said justice of the peace then and there had sufficient and competent authority to administer to him, the said A. B., in that behalf; and the said A. B., being so sworn as aforesaid, did then and there in said. affidavit feloniously, falsely, knowingly, maliciously, wilfully and corruptly depose and swear, among other things, in sub

The first part of this form, describing the proceeding, is based to some extent upon the case of Reg. v. Dunning, L. R. 1 C. C. 290, in which an indictment less specific than this was held sufficient under an English statute. See, also, Reg. v. Hughes, 1 C. & K. 519; Lavey v. Reg., 17 Q. B.

496. As to the allegation of the testimony and the falsity thereof, see S. v. Ah Lee, 18 Oreg. 540. As to the allegation in regard to the administration of the oath to defendant, see S. v. Divoll, 44 N. H. 140. As to the averment of materiality, see C. v. Kelly, 123 Mass. 417.

stance as follows, to wit: that B. C., meaning the said B. C. above mentioned, had resided within the limits and under the jurisdiction of the United States for five years then last past, and for one year then last past within the state of New Hampshire, and that during said period he had behaved himself as a man of good moral character, attached to the principles of the constitution of the United States and well disposed to the good order and happiness of the same, which said affidavit is in the words and figures following, to wit: [Copy of affidavit.] Whereas, in truth and in fact, as the said A. B. then well knew, the said B. C. had no residence within the limits and under the jurisdiction of the United States for five years then last past, and for one year last past within the state of New Hampshire; and whereas, in truth and in fact, as the said A. B. then well knew, the said B. C. during the same period had not behaved himself as a man of good moral character, attached to the principles of the constitution of the United States and well disposed to the good order and happiness of the same; and whereas the said affidavit was, as the said A. B. then well knew, in all respects utterly false and untrue at the time the said A. B. so made and swore to the same. And so the jurors aforesaid, upon their oath aforesaid, do say that the said A. B. did commit wilful and corrupt perjury.1

IX. THE EVIDENCE.

The charge in con

§ 886. As to the proceedings or issue. nection with which the alleged false testimony was given should be definitely proved. Such proof should properly be made by the production of the record of the action. But if the proceed

1The first part of this indictment the essential record are produced follows substantially one given in S. v. Whittemore, 50 N. H. 245. The assignment of the statement in the affidavit and the falsity thereof is in accordance with an indictment in P. v. Sweetman, 3 Park. Cr. R. 358, though considerably abridged from the language there used. As to whether it is necessary to set out a copy of the affidavit, see supra, § 877. 2 Reg. v. Carr, 10 Cox, 564.

McMurry v. S., 6 Ala. 324; Smith v. S., 103 Ala. 57; Heflin v. S., 88 Ga. 151; Rex v. Ward, 6 C. & P. 366; Porter v. Cooper, 6 C. & P. 354. A transcript is not necessary, however, where the documents constituting

from the custody of the proper officer: Reg. v. Turner, 2 C. & K. 732; Reg. v. Newman, 3 C. & K. 240. If the proceeding was on indictment there should be formal proof of the commencement thereof by production of the summons, information, or the like: Reg. v. Hurrell, 3 F. & F. 271; Reg. v. Newall, 6 Cox, 21; but in a bastardy proceeding, held, that the summons was not essential, the evidence showing that the information was duly made: Reg. v. Smith, L. R. 1 C. C. 110; nor the original writ of summons in a civil action, copy thereof being produced, with other evidence of the proceeding:

ing was in the same court it will take notice of its own records.1 The usual evidence under common-law procedure of the proceeding in the action is the postea; 2 and this is enough without showing the final judgment. Proof of the final conviction or judgment in the proceeding is not material.

§ 887. Administration of the oath.-The fact that defendant was sworn may be shown by proof of the signature, by handwriting or otherwise, to the oath, if subscribed, and the evidence of the officer administering it, or proof of his signature to the jurat. The official character of the officer administering the oath may be established by parol evidence of his acting de facto.

§ 888. The testimony or statement.- While it has been said that the whole of the testimony of the defendant in which the false statement is charged to have been made should be proved, yet the rule as generally stated is that only so much of the testimony of the defendant as relates to the particular fact on which the perjury is assigned need be shown. The evidence need not be limited to proof of the exact words; proof of the substance is sufficient.

Reg. v. Scott, 2 Q. B. D. 415. Other evidence of the information and summons may be received after notice to produce the original: Reg. v. Dillon, 14 Cox, 4; Reg. v. Newall, 6 Cox, 21.

Parol evidence is admissible as

proved. The presumption that the officer did his duty will not prevail over the presumption of innocence: Sloan v. S., 71 Miss. 459. However, the proof of the officer's signature to the jurat, in addition to proof of de

1 U. S. v. Erskine, 4 Cranch, C. C. 299. fendant's signature to the oath, is 2 Resp. v. Goss, 2 Yeates, 479.

3 Anon., Bull. N. P. 243. Where the postea could not be drawn up because a rule for a new trial was pending, held, that the nisi prius record was sufficient: Rex v. Browne, 3 C. & P. 572.

4 Reg. v. Goodfellow, Car. & M. 569. Where it is proper to prove the final judgment it may be shown by the production of the book from the proper office: Reg. v. Gordon, Car. & M. 410.

5C. v. Warden, 11 Met. 406; Van Dusen v. P., 78 Ill. 645; Rex v. Benson, 2 Camp. 508; Rex v. Spencer, 1 C. & P. 260. But the administration of the oath must be affirmatively

sufficient: S. v. Madigan, 57 Minn. 425; Rex v. Morris, 2 Burr. 1189. In a particular case, held, that the evidence of the identity of the defendant as the person swearing to the affidavit charged as constituting perjury was not sufficiently established: Reg. v. Barnes, 10 Cox, 539.

6 Woodson v. S.. 24 Tex. Ap. 153. And see supra, § 856.

7 Rex v. Jones, Peake, 37; Rex v. Dowlin, Peake, 170. At any rate, proof of the whole testimony is admissible: Reg. v. Harrison, 9 Cox, 503.

8 U. S. v. Erskine, 4 Cranch, C. C. 299; Rex v. Rowley, Ry. & M. 299. Taylor v. S., 48 Ala. 157.

2

to what the testimony was. The stenographer who took down the evidence may prove what the evidence was by reference to his notes; but the judge's notes of the evidence are not in themselves admissible. To prove false testimony given before a grand jury, persons who were properly present in the grand jury room as officers or otherwise, and who were not as grand jurors subject to the oath of secrecy, may testify. Indeed, even a grand juror who has been sworn to secrecy may properly be required to divulge such testimony.5

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§ 889. Materiality. The general doctrine as to the necessity of showing the materiality of the false statement has already been explained. It is only necessary here to say that there must be some evidence that the statement was material;' and that the fact cannot be left to presumption or inference. For the purpose of showing materiality, it may be proper to show what other testimony was given at the same time, and it will be no objection to doing so that the defendant charged with perjury was not present when such other testimony was given.9

§ 890. Wilful falsity.-The necessity of negativing the truth of the statement set out as constituting perjury has already been explained.10 The whole res gesta of the transaction as to which the testimony was given may be shown for the purpose or proving that this testimony as to some of the particulars was false." The record of the trial upon which the perjury was alleged to have been committed is admissible as inducement, but cannot be considered for the purpose of establishing the falsity of the testimony; thus, where the perjury charged was in giving evidence in behalf of the prosecution of a criminal charge, it was held that the fact that the defendant in that trial was acquitted did not tend to show that the testimony

1 P. v. Curtis, 50 Cal. 95; S. v. Gibbs, charging the materiality in the in10 Mont. 213. dictment, see supra, § 878.

2 P. v. Lem You, 97 Cal. 224; S. v.

Camley, 67 Vt. 322.

7 Lawrence v. S., 2 Tex. Ap. 479.

8 S. v. Aikens, 32 Ia. 403; Nelson v.

Reg. v. Child, 5 Cox, 197; Reg. v. S., 32 Ark. 192; Brooks v. S., 29 Tex. Morgan, 6 Cox, 107.

4 Reg. v. Hughes, 1 C. & K. 519.
Izer v. S., 77 Md. 110.
Supra, SS 861-866.

Ap. 582.

9 P. v. Lem You, 97 Cal. 224.
10 See supra, § 880.

And as to 11 Heflin v. S., 88 Ga. 151.

was false.1 And evidence which might be admissible in the case in which the perjury is claimed to have been committed may not be admissible in the prosecution for perjury; for instance, where the perjury was in a criminal case, admissions of the accused in that case are not admissible to show the falsity of the testimony of the witness, though they were admissible to show defendant's guilt. If the alleged perjury relates to a written instrument, the instrument should be produced in evidence or its absence accounted for. Where the false statement consisted in false entries at the custom-house, made under oath in regard to the cost of imported goods, it was held that the falsity could be shown by documentary evidence and the correspondence of the accused without living witnesses. As to whether the false evidence was wilfully and corruptly given, the accused may show that immediately after the transaction to which his evidence related he gave the same account as in his testimony in regard to what took place. But in general the accused is not allowed to show statements made out of court

1 Kitchen v. S., 26 Tex. Ap. 165; Hutcherson v. S., 33 Tex. Ap. 67; Hemphill v. S., 71 Miss. 877; Reavis v. S., - Wyo., 44 Pac. R. 62. But see U. S. v. Butler, 38 Fed. R. 498, a case in which defendant was accused of perjury committed in a prosecution against him for illegal sale of liquors and in which he tes tified (under statute allowing the defendant in a criminal case to be a witness in his own behalf) that he had not sold any liquor, and a judgment of acquittal was entered. Thereupon it was held that this result was conclusive as to the truth of such evidence and defendant could not be convicted of perjury. The judge disclaims putting this conclusion on the ground of a prior adjudication, but states a doctrine analogous thereto, to the effect that, where a question has once been inquired into, the result is conclusive of the subsequent question between the same parties; citing the case of Coffey v. U. S., 116 U. S. 436, in

which it was held that after acquit tal in a criminal prosecution by the United States for violation of the internal revenue law a civil suit could not be maintained for the forfeiture of property on account of such violation. But this result seems very questionable; the issues in the two cases are not the same, although they happen to involve incidentally the same question of fact. It would be a strange result if, where the defendant having made himself a witness secures his own acquittal by perjury, the state should thereby be cut off by that result from afterwards calling him to account for his false swearing.

2 Reavis v. S., Wyo. - 44 Pac R. 62; Brown v. S., 57 Miss. 424. Contra, Martin v. S., 33 Tex. Ap. 317.

3 Reg. v. Elworthy, L. R. 1 C. C. 103; Reg. v. Milnes, 2 F. & F. 10.

4 U. S. v. Wood, 14 Pet. 430. 5 S. v. Curtis, 12 Ired. 270. Contra, S. v. Hunt, 137 Ind. 537.

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