without going into details so long as the act is sufficiently set out to show the particular transaction referred to.1 § 845. Fraud perpetrated. It is necessary to allege and prove that in some way the parties named as those intended to be defrauded were or could have been prejudiced by the act charged; for instance, where the charge is of mortgaging property to defraud creditors, it must be averred that the property was not exempt from levy. But it is not necessary to show that the creditor was in a position to seize the property at the time the fraudulent act is charged to have been done, and an immediate or prospective, absolute or contingent, right on the part of the creditor is sufficient." § 846. Removal or disposal of property covered by chattel mortgage. In various states there are statutes making it criminal to dispose of or to remove out of the state personal property which is covered by chattel mortgage without the written consent of the mortgagee. And such a statute covers a transfer by exchange as well as a sale. But where it is disposal which is prohibited, taking out of the state is not criminal. Where the statute prohibits the disposal of personal property, having knowledge of any mortgage or lien thereon, without written consent, etc., or without paying the mortgage, it is criminal for the holder of a junior mortgage or lien to dispose of the property without such consent and without providing for the payment of the prior mortgage or lien. It is immaterial that the defendant had no title to the property.9 The mortgage must be valid at the time of the act complained of. If given by a minor and not ratified no offense is committed, for the sale is a disaffirmance of the mortgage." A mortgage on unplanted crops constitutes a valid and lawful claim thereon when planted; 12 and a mortgage on cows covers 1S. v. 10 Miller, 98 Ind. 70. 2S. v. Chapman, 68 Me. 477; Day v. Lown, 51 Ia. 364; S. v. Robinson, 29 N. H. 274. 3 S. v. Collins, 62 Vt. 195. 4 S. v. Johnson, 33 N. H. 441. 5 Conley v. S., 85 Ga. 348; Williams v. S., 27 Tex. Ap. 258; Moye v. S., 9 Tex. Ap. 88; S. v. Harberson, 43 Ark. 378; Cooper v. S., 37 Ark. 412. 6 Johnson v. S., 69 Ala. 593. 7S. v. Rice, 43 S. C. 200; S. v. Julien, 48 Ia. 445. 8 S. v. Reeder, 36 S. C. 497. 9 S. v. Williams, 32 Minn. 537. 10 S. v. Plaisted, 43 N. H. 413. 11 Jones v. S., 31 Tex. Ap. 252. 12 Varnum v. S., 78 Ala. 28; Hamilton v. S., 94 Ga. 770. Contra, Hardeman v. S., 16 Tex. Ap. 1. A cropper's right to his share may be mortgaged, and the sale of such interest may their increase. It is not usually criminal to purchase the mortgaged property from the mortgagor. But some statutes are broad enough to cover the purchaser as well as the seller.3 § 847. Consent of mortgagee.- While the statutes require the consent of the mortgagee to be in writing, yet a consent given before the execution of the mortgage may perhaps constitute a continuing consent and prevent an act done in accordance with such consent from being criminal. Such consent may lead the mortgagor to naturally suppose that he could rightfully do the act. Where consent is given it does not constitute a waiver of the mortgagee's lien on the property. Some statutes make it criminal to sell without the written consent of the mortgagee, or without informing the person to whom the sale is made that the property is mortgaged, and under such statutes compliance with one of the conditions is sufficient." § 848. Selling or removing property subject to lien.- An offense analogous to that above described with reference to property covered by chattel mortgage is that provided for by some statutes of selling or removing property subject to a lien without satisfying the lien or obtaining consent of the lienholder, or giving previous notice of the intention to sell or remove. These statutes are applicable mainly to cases of landlords' liens.7 § 849. The intent.- While it may be said that intent to defraud is material, yet it is the wrongful doing of the prohibited act which constitutes the crime, and therefore it is generally held that the intent to defraud may be inferred from the intentional making of the sale without consent, etc.; and under this view it is not necessary to charge that the act was done with intent to defraud. But it has been held that, where only constitute a crime: Beard v. S., 43 Ark. 284. 1 Dyer v. S., 88 Ala. 225. ? McDonald v. Norton, 72 Ia. 652. Therefore a subsequent mortgage on the same property by the mortgagor is not void: Tootle v. Taylor, 64 Ia. 629. 3S. v. Woods, 104 N. C. 898. 6 C. v. Damon, 105 Mass. 580. 7 Money v. S., 89 Ala. 110; Smith v. S., 84 Ala. 438; S. v. Turner, 106 N. C. 691; S. v. Smith, 106 N. C. 653; S. v. Williams, 106 N. C. 646; S. v. Johnson, 20 S. C. 387. 8 C. v. Cutler, 153 Mass. 252; Beard v. S., 43 Ark. 284; S. v. Reeder, 36 S. C. 497. 9 S. v. Hurds, 19 Neb. 316. Contra, Satchell v. S., 1 Tex. Ap. 438. a part of the mortgaged property was disposed of, it is improper to charge that the intent will be presumed from wilfully and knowingly doing the prohibited act, inasmuch as in such cases the act would not naturally and necessarily result in injury to the mortgagee. It is essential that there be knowledge of the existence of the mortgage or lien.2 § 850. Venue.- Where the offense consists in removing property from the state it is one which cannot be committed wholly within the state, and therefore it falls within statutory provisions such as are found in Texas relative to the place of prosecuting crimes committed wholly or partly without the state and made punishable by law within it. Under such provisions the prosecution is to be had in the county where the defendant is found and not in the county from which the property was removed. A prosecution for fraudulent sale of property under a lien should be commenced in the county where the sale was made.‘ § 851. Indictment.- The indictment need not set out the mortgage by its tenor, nor aver the amount of the indebtedness which it was given to secure, nor, in case of removal of the property, the value of the property; and it is not necessary that it describe the property as it is described in the mortgage, if the description given is sufficient to identify the property. In case of sale it must allege the value of the property at the time of sale in order to show that there was a wrong done to the mortgagee, and under a statute by which double damages are authorized to be given to the injured party, in order to show the amount of such damage. The indictment should also show that the mortgage was valid, subsisting and unpaid at the time the act complained of was done, the place of the wrongful act so as to show the venue,' and the name of the person to whom the property was sold or disposed of, where that is the wrong alleged; 10 and it should negative the written consent of the mortgagee, naming him." 1S. v. Manning, 107 N. C. 910. 2 Foster v. S., 88 Ala. 182. 3 Williams v. S., 27 Tex. Ap. 258. 4 Robberson v. S., 3 Tex. Ap. 502. 5 Wilson v. S., 43 Neb. 745. 6 Glass v. S., 23 Tex. Ap. 425. As to general requisites of the indictment, see S. v. Pickens, 79 N. C. 652. 7S. v Ladd, 32 N. H. 110. 8 S. v. Gustafson, 50 Ia. 194; Satchell v. S., 1 Tex. Ap. 438. 9S. v. Hinkle, 27 Kan. 308. 10 S. v. Hughes, 38 Neb. 366; Smith v. S., 26 Tex. Ap. 577; Alexander v. S., 27 Tex. Ap. 94; Armstrong v. S 27 Tex. Ap. 462. 11 S. v. Hughes, 38 Neb. 366. IX. THE EVIDENCE III IN A COURT HAVING JURIS VIII. THE INDICTMENT. DICTION. IV. WHERE AN OATH IS AUTHOR IZED. V. MATERIALITY. X. SUBORNATION; ATTEMPT TO I. WHAT CONSTITUTES. § 852. Definition.- Perjury is, in its essence, an attempt to subvert public justice by false swearing. An early English statute on the subject relates only to the perjury of a witness in giving his testimony, and therefore the crime under that statute and others similar to it in terms does not include such cases as false oath to an answer in chancery, or in swearing the peace against another, and the like. But the common law seems to recognize a much broader scope for the offense. the definition is usually given, the crime consists in the taking of a wilful false oath in a judicial proceeding in regard to a matter or thing material to a point involved therein. Doubt 1S. v. Whittemore, 50 N. H. 245. *5 Eliz, ch. 9. Resp. v. Newell, 3 Yeates, 407; Rither's Case, Cro. Eliz. 148; Matthew's Case, 2 Leon. 201; Miller's Case, Yelv. 120; Agar's Case, Moore, 627. 4 Resp. v. Newell, 3 Yeates, 407. 3 C. v. Powell,2 Met. (Ky) 10: Cothran . S., 39 Miss. 541; Hood v. S., 44 3 As Ala. 81; Rex v. Aylett, 1 T. R. 63. The definition from Hawkins is somewhat more elaborate: "A wilful false oath by one who, being lawfully required to depose the truth in any proceeding in a course of justice, swears absolutely in a matter of some consequence to the point in question, whether he be believed or not:" 1 Hawk. P. C., ch. less this definition, as well as the others given in the note, is too restricted to cover the cases which are now by statute included in the crime. The offense is almost universally extended so as to include false swearing in any case where an oath is authorized by law. Many cases of perjury under the statutory definitions do not relate to any judicial proceeding whatever, but it is impossible to form a definition which shall cover all cases, as statutes frequently make particular forms of false oath criminal without regard to or in addition to a general definition. By some statutes there is an offense of false swearing which covers cases outside of common-law perjury. The cases just cited illustrate the fact that under such statutes the taking of a false oath may be criminal although not in any judicial proceeding, and in such cases it is evident that there is not the same requirement as to materiality as in cases arising in a judicial proceeding. At common law, falsehood not strictly amounting to perjury may be an indictable misdemeanor. The offense is a misdemeanor only, unless under the statutes it is made a felony." § 853. Elements of the offense.- From the definition of the offense it will appear that the testimony or statement relied upon as constituting the perjury must be (1) under oath, (2) in a court having jurisdiction, or (3) under circumstances where the taking of an oath is authorized, (4) in a material respect, 69. Blackstone adopts Coke's definition as follows: "A crime committed when a wilful oath is administered in some judicial proceeding to a person who swears wilfully, absolutely and falsely in a matter material to the issue or point in question: " 4 Bl. Com. 137. Bishop's definition is, "The wilful giving under oath in a judicial proceeding or court of justice of false testimony material to the issue or point of inquiry:" 2 Bish. Cr. L., § 1015. 1C. v. Hughes, 5 Allen, 499; S. v. Byrd, 28 S. C. 18; U. S. v. Bedgood, 49 Fed. R. 54; U. S. v. Landsberg, 23 Fed. R. 585; U. S. v. Ambrose, 108 U. S. 336. 2 C. v. Maynard, 91 Ky. 131; C. v. Scowden, 92 Ky. 120; C. v. Still, 83 Ky. 275; S. v. Runyan, 130 Ind. 208; S. v. Baker, 64 Vt. 355; Davidson v. S., 22 Tex. Ap. 372; Steber v. S., 23 Tex. Ap. 176; U. S. v. Dickey, Morris, 412; Rex v. Hodgkiss, L. R. 1 C. C. 212. Though a particular form of false swearing may be made a misdemeanor, it may also constitute perjury: P. v. Platt, 67 Cal. 21. Perjury is not contempt of court: S. v. Laz arus, 37 La. An. 401. 3S. v. Flagg, 25 Ind. 243. Further as to materiality, see infra, § 861. Ex parte Overton, 2 Rose, 257; Reg. v. Chapman, 2 C. & K. 846. Anon., R. M. Charlt. 228. |