3 corresponding with his testimony which is charged as false, without also showing that such statements were made before the intent to misrepresent the facts could have been formed.' This is in harmony with the general rule of evidence as to corroborating testimony of the witnesses where an attempt is made to impeach him. For the purpose of proving the wilful falsity of defendant's testimony the prosecution may show that defendant had given expression to malice toward the person against whom the false evidence was given; or that he endeavored to influence another person to give false testimony in the same case. Proof of other perjury than that assigned in the indictment cannot be introduced; but if evidence thereof is legitimately brought out and relates to the subject-matter of the perjury charged, it may be considered in determining defendant's corrupt intent. Where the perjury was committed in a divorce proceeding, the wife, party to such suit, is a competent witness against her husband prosecuted for perjury in testifying against her. A witness may testify directly that the statement in question was false, if he states facts showing it to be so." § 891. Sufficiency of testimony; contradictory statements of accused. Proof that accused has given contradictory testimony under oath at a different time will not be sufficient to establish the falsity of the testimony charged as perjury, for this would leave simply one oath of the defendant as against another, and it would not appear that the testimony charged was false rather than the testimony contradictory thereof. The two statements will simply neutralize each other; there must be some corroboration of the contradictory testimony. McCord v. S., 83 Ga. 521; Parsh, 79 N. C. 610. S. v. 3 Rex v. Munton, 3 C. & P. 491. 4 Heflin v. S., 88 Ga. 151. see 5S. v. Raymond, 20 Ia. 582. It 21 Greenl. Ev., § 469. And Rex v. Parker, 3 Dougl. 242. seems that accused may show that the testimony contrary to his own in the case in which the perjury is alleged to have been committed was false, as tending to prove the correctness of his own testimony, although such evidence is not directly corroborative of what he swore: S. v. Jones, 91 N. C. 629. 6 Dill v. P., 19 Colo. 469. 8 C. v. Parker, 2 Cush. 212; U. S. v. Mayer, Deady, 127; Freeman v. S., 19 Fla. 552; Schwartz v. C., 27 Grat. 1025; Dodge v. S., 24 N. J. 455; S. v. Buckley, 18 Oreg. 228; S. v. Williams, 30 Mo. 364; Brooks v. S., 29 Tex. Ap. 582; Waters v. S., 30 Tex. Ap. 284; Reg. v. Muscot, 10 Mod. 192; Reg. v. Such corroboration, however, may be furnished by evidence aliunde tending to show the perjury independently of the declarations or testimony of the accused.1 § 892. One witness not sufficient.— On a principle analogous to that stated in the last paragraph, it has been held at common law without controversy in the authorities that the testimony of one witness as to the falsity of the statement assigned as perjury is not sufficient, for under such circumstances the oath of the accused and the oath of the witness to its falsity counteract each other.2 This doctrine has sometimes been stated in such language as to indicate that the testimony of two witnesses to the falsity of the oath was necessary to a conviction, but if such ever was the rule, it has been changed by the later decisions, and as now expressly recognized it is only that to warrant a conviction the testimony of one witness as to the falsity of the statement must be corroborated by other testimony or by circumstances which may be shown in evidence tending to prove such falsity. This rule exists in Texas, and perhaps in other states, by statute requiring the falsity of the defendant's testimony to be shown by two credible witnesses, or one credible witness corroborated strongly by other evidence. And under such statute a credible witness is one Wheatland, 8 C. & P. 238; Reg. v. Hughes, 1 C. & K. 519; Reg. v. Braithwaite, 1 F. & F. 638; 2 Bish. Cr. Proc., § 927; 1 Greenl. Ev., § 259. The accused is not estopped from showing that his oath contradictory of that charged as perjury was false: S. v. J. B., 1 Tyler, 269. 1S. v. Buckley, 18 Oreg. 228. Such, for instance, as the books of account and papers relating to the same prosecution: U. S. v. Mayer, Deady, 127. 2 Reg. v. Yates, Car. & M. 132; Reg. v. Boulter, 3 C. & K. 236; Reg. v. Webster, 1 F. & F. 515; Rex v. Lee, 3 Russ. Cr. 78; Champney's Case, 2 Lewin, 258; P. v. Davis, 61 Cal. 536. 3 C. v. Parker, 2 Cush. 212; U. S. v. Wood, 14 Pet. 430; Crusen v. S., 10 Ohio St. 258; S. v. Heed, 57 Mo. 252; S. v. Jean, 42 La. An. 946; S. v. Peters, 107 N. C. 876; Crandall v. Dawson, 6 Ill. 556; Mackin v. P., 115 Ill. 312; S. v. Raymond, 20 Ia. 582; S. v. Gibbs, 10 Mont. 213; Gandy v. S., 27 Neb. 707; U. S. v. Hall, 44 Fed. R. 864; Reg. v. Boulter, 3 C. & K. 236; Reg. v. Webster, 1 F. & F. 515; Reg. v. Muscot, 10 Mod. 192. And the corroborating evidence must relate to the testimony adduced in support of the charge, and not to some distinct and immaterial matter: S. v. Buie, 43 Tex. 532. 4 Maines v. S., 26 Tex. Ap. 14; Smith v. S., 22 Tex. Ap. 196. It is error under such statute to fail to instruct the jury accordingly: Gartman v. S., 16 Tex. Ap. 215; Washington v. S., 22 Tex. Ap. 26; Wilson v. S., 27 Tex. Ap. 47; Miller v. S., 27 Tex. Ap. 497; Brookin v. S., 27 Tex. Ap. 701; Grandison v. S., 29 Tex. Ap. 186; Aguierre v. S., 31 Tex. Ap. 519. 2 who, being competent to give evidence, is worthy of belief.' The corroboration required by the general rule may consist of statements made by accused contradictory of the statement which is charged as false; though on this point there are authorities to the contrary. One case has gone so far in mitigating the rule as to the corroboration required as to hold that the manner and nature of the testimony of the accused in his own behalf may be a sufficient corroboration to justify conviction on the testimony of one other witness. And in another case it is said that circumstantial evidence is sufficient in corroboration, which is undoubtedly true. But the circumstantial evidence which is relied on in corroboration must be such as to conclusively demonstrate defendant's guilt. It is said in some cases that the corroborating evidence must be equivalent to the testimony of a second witness. But under the cases already considered, it is evident that this is not the rule, and it is expressly negatived in other cases. The corroboration may consist of documents, entries or other such matter which is competent as to the fact. It must be substantial and not in some particular only; 10 but it need not go to the identical fact sworn to by the contradicting witness, if it is in itself contradictory of the truth of the statement of accused." The evidence corroborating must relate to the same assignment of perjury; proof of one assignment is not corroborated by proof of another, even when all the perjurics as 1Smith v. S., 22 Tex. Ap. 196; Wilson v. S., 27 Tex. Ap. 47; Kitchen v. S., 29 Tex. Ap. 45. Rex v. Mayhew, 6 C. & P. 315; S v. Molier, 1 Dev. 263; S. v. Blize, 111 Mo. 464. Peterson v. S., 74 Ala. 34; Reg. v. Boulter, 3 C. & K. 236. 4S. v. Miller, 24 W. Va. 802. 'Hernandez v. S., 18 Tex. Ap. 134. • Beach V. S., 32 Tex. Ap. 240. Purely circumstantial evidence without the testimony of one witness is under the Texas statute not sufficient: Waters v. S., 30 Tex. Ap. 284. And see P. v. Wells, 103 Cal. 631. 'McClerkin v. S., 20 Fla. 879; Reg. v. Parker, Car. & M. 639, 8 S. v. Peters, 107 N. C. 876; Hendricks v. S., 26 Ind. 493; S. v. Jean, 42 La. An. 946; Rex v. Lee, 3 Russ. C. & M. 78. 9 U. S. v. Wood, 14 Pet. 430. 10 Reg. v. Yates, Car. & M. 132. One witness cannot corroborate himself: Gabrielsky v. S., 13 Tex. Ap. 428. Corroboration in a particular case held sufficient: Flemister v. S., 81 Ga. 768. 11 C. v. Davis, 92 Ky. 460; Reg. v. Roberts, 2 C. & K. 607; Reg. v. Hare, 13 Cox, 174. As to sufficiency in particular cases, see S. v. Hawkins, 115 N. C. 712; P. v. Porter, 104 Cal. 415. signed are committed at the same time and place.1 The rule requiring two witnesses, or one witness corroborated by other evidence, is limited in reason and by weight of authority to the falsity of the oath; the giving of the testimony, or of the making of the statement charged as false, may be proven by one witness without corroboration.2 X. SUBORNATION; ATTEMPT TO PROCURE. § 893. What constitutes. This offense, which is distinct from that of perjury,' is defined as that of procuring another to take a false oath amounting to perjury. And the one who procures the perjury to be committed is an accessory before the fact to that crime." It is essential that perjury be actually committed by the person suborned, and if he is acquitted of perjury the person accused of subornation should be acquitted of that offense. If the witness testifies truthfully the crime of subornation is not committed by the one who procures him to testify, although the person thus procuring knows that the testimony will be in fact false. The accused must not only know the statements to be in fact false, but also that the witness knew them to be false. It is also essential that the false 1 Lea v. S., 64 Miss. 278; Williams v. C., 91 Pa. St. 493; 1 Greenl. Ev., § 257a. 2 C. v. Pollard, 12 Met. 225; S. v. Wood, 17 Ia. 18; S. v. Hayward, 1 Nott & M. 546; U. S. v. Hall, 44 Fed. R. 864. Contra, S. v. Howard, 4 McCord, 159. The person committing the perjury is not an accomplice of the procurer, and his evidence need not be corroborated as that of an accomplice: U. S. v. Thompson, 31 Fed. R. 331. 41 Hawk. P. C., ch. 69, § 10; 2 Bish. Cr. L., § 1197. Bishop speaks of it as in its essence perjury, but this seems to be inaccurate. Some crimes may be committed by procurement, but to induce another to swear falsely is evidently not the same thing as the direct giving of false testimony, al 8 though it may be equally criminal in its nature. The rule that the perjury and the procuring may be charged in the same indictment (supra, § 884) may seem contrary to this view, but, even if well founded in reason, is perhaps not conclusive. 5 C. v. Smith, 11 Allen, 243. 6 U. S. v. Wilcox, 4 Blatch. 393; U. S. v. Evans, 19 Fed. R. 912. It is subornation of perjury in an attorney to procure false evidence, knowing it to be false, with the intention of deceiving the court: Beattie v. P., 33 Ill. Ap. 651. 7 Maybush v. C., 29 Grat. 857, 3 Am. Cr. R. 292 and note. 8 C. v. Douglass, 5 Met. 241; Coyne v. P., 124 Ill. 17. 9 U. S. v. Evans, 19 Fed. R. 912; U. S. v. Dennee, 3 Woods, 39. evidence as given be material and possess the other requisites. of perjury; that is, it must be given for use under such circumstances as that it will constitute perjury, and must be so used;1 but it is not necessary to allege that the perjury was committed by reason of and in consequence of the subornation of the accused. It is enough to charge the perjury on the part of the person who falsely testified, and then allege that the accused did falsely and maliciously incite such person to commit perjury "in the manner and form aforesaid." Though the technical requirements as to the indictment at common law are mitigated by statute, it must show the essential elements of the offense. If the offense committed in a prosecution for a capital offense is more heavily punishable than in another case, the indictment should show the nature of the case in which the perjury was committed." § 894. Attempt to procure or incite.- Although one who attempts to procure another to commit perjury does not actually commit it and is not technically guilty of subornation of perjury, he is, by both the common law and statute, guilty of a crime. But under statutes which provide only for the punishment of subornation the attempt to suborn is not a crime.7 Under a prosecution for the attempt it must be affirmatively alleged that the testimony attempted to be procured was material. And the charge as to the false testimony attempted to be procured should be specific, definite and certain as in an indictment for perjury. In this offense as in case of subornation it is essential that the party solicited to give the testimony shall know that the testimony which he is solicited to give would be false, so that if given it would have been perjury.10 As to the procurement, it is not sufficient to show that the accused told the person solicited to give the testimony that 7 P. v. Thomas, 63 Cal. 482. 1 Smith v. S., 125 Ind. 440; S. v. Geer, 46 Kan. 529; S. v. Leach, 27 Vt. 317; U. S. v. Wilcox, 4 Blatch. 393. 2 S. v. Geer, 48 Kan. 752. 8 S. v. Tappan, 58 N. H. 152; S. v. Joaquin, 69 Me. 218. 9 Rivers v. S., 97 Ala. 72. But to 3 C. v. Devine, 155 Mass. 224; Stew- the contrary it is said that the in art v. S.. 22 Ohio St. 477. 4 Rivers v. S., 97 Ala. 72. 5 Thompson v. S., 89 Wis. 253. 61 Hawk. P. C., ch. 69, § 10; 2 Bish. Cr. L., § 1197; Ex parte Overton, 2 Rose, 257. dictment need not particularly specify the perjury which the accused is charged with having attempted to suborn: S. v. Holding, 1 McCord, 31. 10 Coyne v. P., 124 lll. 17. |