the offense charged. This indictment is not helped out by the act of April 30, 1790, in reference to the forms of indictments for perjury, since this statute does not dispense with the necessity of setting out the true and proper designation of the court, or the name and official title, designation and character of the officer before whom the oath was administered. United States v. Wilcox, §§ 2512-15.

§ 2508. An indictment for perjury based on the act of March 3, 1825, must show that the proceeding in which false testimony was given was one in which an oath was required. It is not enough to allege that the persons against whom the proceedings were had were charged with a crime against the United States, but the particular charge should be stated. Ibid.

§ 2509. It must appear in an indictment for perjury what charge was under investigation in the proceeding in which the oath was taken, in order that the court may see that the testimony alleged to have been falsely given was material. Ibid.

§ 2510. Subornation of perjury is in its essence but a particular form of perjury itself: United States v. Dennee, §§ 2516-19. See § 2532.

§ 2511. An indictment for subornation of perjury is bad which does not aver that the testimony which the defendant instigated the witnesses to give was false, and that the defendants knew that the witness knew that the testimony which he was instigated to give was false. Ibid.

[NOTES.-See §§ 2520-2532.]

UNITED STATES v. WILCOX.

(Circuit Court for New York: 4 Blatchford, 391-393. 1859.)

Indictment for perjury. Demurrer to the indictment.

§ 2512. An indictment for perjury committed on an examination before a commissioner, but failing to state how, or by whom, or for what purpose, or under what statute, such commissioner was appointed, is bad on demurrer. Opinion by HALL, J.

The indictment alleges the perjury to have been committed on "an examination of certain persons charged with crimes or offenses against the laws of the United States," before Aurelian Conkling, Esq., "a commissioner of the United States, duly appointed according to law, and having competent authority and power to arrest offenders for any crime or offense against the United States, and to examine the same and to imprison or hold the same to bail, and, in the proceedings and matters before him, in relation to offenses and offenders, as aforesaid, to administer oaths and examine witnesses, and in the matters and proceedings relating to and concerning the offenses and crimes charged against" the persons, etc., named in the indictment; but the indictment does not state how, or by whom, or under what statute, or for what purpose, such commissioner was appointed. The case of United States v. Stowell, 2 Curt., 153, is in point to show that this is not a sufficient common law averment of the legal authority and jurisdiction of Commissioner Conkling to administer the oath under which it is alleged the defendant committed the offense charged; and, unless such an averment is rendered unnecessary by the act of congress of April 30, 1790 (1 U. S. Stat. at Large, 116, 117, §§ 19, 20), in reference to the forms of indictment for perjury and subornation of perjury, the indictment is clearly bad for that reason.

§ 2513. An indictment for perjury should state the official title of the officer before whom the oath was taken.

I have examined, with some care, the question whether the statute referred to authorizes this form of pleading, and my conclusion is that it does not. The allegation is, that Mr. Conkling was a commissioner of the United States; not of the circuit court of the United States, or appointed by the circuit court of the United States. Commissioners of the United States, in the ordinary sense of that term, have not the powers alleged to have been possessed by this

commissioner. Although the language of the statute referred to is very broad, I do not think it dispenses with the necessity of setting out the true and proper designation of the court, or the name and official title, designation or character of the officer before whom the oath was administered. This, it strikes me, is of the substance of the offense, and not mere matter of form. The setting forth of the commission, or the particular powers and authority of the officer, and the source whence they are derived, is not necessary, if he is alleged to hold an office which apparently confers upon him the authority to administer the oath in the particular case specified. This being done, the general allega tion, that he had competent authority to administer the oath, is declared to be sufficient. People v. Phelps, 5 Wend., 9, 19; The Queen v. Overton, 4 Ad. & Ell., N. S., 83. But there is no distinct and precise allegation that this commissioner had competent authority to administer the particular oath stated, and, therefore, the requirement of the statute has not been complied with; and, certainly the indictment would be bad at common law.

§ 2514. An indictment for perjury is bad which fails to state the particular crime or offense with which the parties named were charged.

It was also objected, upon the argument of the demurrer, that the indictment does not show that the proceeding before the commissioner was one in which an oath was required, so as to bring the case within the thirteenth section of the act of March 3, 1825 (4 U. S. Stat. at Large, 118), on which the indictment is founded. In this respect, also, the indictment is bad. It is not enough to allege that the persons named were charged with a crime or offense against a law of the United States, for that is a conclusion of law, but the particular charge should be stated. The act of congress, before referred to, does not dispense with this statement. The Queen v. Overton, 4 Ad. & Eil., N. S., 83. § 2515. the charge under investigation must be stated.

It was also objected that it does not appear from the indictment what charge was under investigation before the commissioner, and that, therefore, the court cannot see that the testimony alleged to have been falsely given was material. In this respect, also, the indictment is defective. The indictment was evidently drawn during the disorder and hurry of the circuit, and is in other respects uncertain and defective. The demurrer must be allowed and judgment rendered thereon for the defendant.

UNITED STATES v. DENNEE.

(Circuit Court for Louisiana: 3 Woods, 39-43. 1877.)

STATEMENT OF FACTS.-This was an indictment for subornation of perjury in inducing Martha Knight to swear falsely before a United States commissioner in a suit pending in the court of claims between Harriet Mills and the United States. There was a demurrer to the indictment. Further facts appear in the opinion.

§ 2516. What constitutes the crime of subornation of perjury. Opinion by WOODS, J.

The crime of subornation of perjury has several indispensable ingredients which must be charged in the indictment, or it will be fatally defective. 1. The testimony of the witness suborned must be false. 2. It must be given wilfully and corruptly by the witness, knowing it to be false. 3. The suborner must know or believe that the testimony of the witness given, or about to be given,

will be false. 4. He must know or believe that the witness will wilfully and corruptly testify to facts which he knows to be false.

A careful scrutiny of the counts of this indictment fails to reveal any averment that the defendants knew or believed that the testimony of the witness whom they are charged with suborning would be false, or that they knew it was false, or that they knew that the witness knew it was false, or that they knew that she would wilfully and corruptly testify, or had wilfully and corruptly testified, to facts as true, knowing them to be false.

§ 2517. An indictment for subornation of perjury must set out the false swearing.

To make a good indictment for subornation of perjury the false swearing must be set out with the same detail as an indictment for perjury, and the indictment must charge that the defendants procured the witness to testify knowing that the testimony would be false, and knowing that the witness knew that the testimony he had given, or was about to give, was false, and knowing that he would corruptly and wilfully give false testimony. In the case of Commonwealth v. Douglass, 5 Metc., 244, the defendant was indicted for subornation of perjury. On the trial the court below instructed the jury that, "if it was proved to them beyond a reasonable doubt that the defendant, on the former trial for forgery (referred to in the indictment), put Fanny Crossman on the stand, or caused her to be put on the stand, as a witness, knowing that she would testify as set forth in the indictment, and intending that she should so testify, and he put her on the stand, or caused her to be put on the stand, for the purpose of her so testifying, and she did so testify, and such testimony was false, and he knew when he put her on the stand that, if she did so testify, her testimony would be false, it would be sufficient to prove that part of the indictment which alleged that defendant suborned Fanny Crossman to commit perjury as set forth in the indictment."

This charge was assigned for error, and the supreme judicial court, in passing upon it, said: "The remaining exception to the charge of the presiding judge is of more importance, and is, we think, well founded. The jury were instructed that, if certain facts stated in the exceptions were proved beyond reasonable doubt, it would be sufficient proof of that part of the indictment which charged that the defendant suborned Fanny Crossman to commit perjury. Now we are of opinion that all these facts might exist, and yet the defendant might not be guilty of the crime charged in the indictment. The defendant might know or believe for he could not know with certaintythat the witness whom he called would testify as she did, and he might know that her testimony would be false; but if he did not know that she would wilfully testify to a fact knowing it to be false, he could not be convicted of the crime charged. If he did not know or believe that the witness intended to commit the crime of perjury, he could not be guilty of the crime of suborning her. To constitute perjury the witness must wilfully testify falsely, knowing the testimony given to be false. 1 Hawk., c. 69, sec. 2; Bac. Ab., Perjury, A; 2 Russell on Crimes, 1753. A witness, by mistake or defect of memory, may testify untruly without being guilty of perjury or any other crime." § 2518. Subornation of perjury defined.

Subornation of perjury is in its essence but a particular form of perjury itself. 2 Bish. Cr. L., sec. 1197. See, also, Whart. Prec. of Indict., pp. 598, 599, forms e and d; see, also, form of indictment in Archb. Cr. Pl. and Ev., 575, 577; see same form, 2 Bish. Cr. Proc., sec. 878; State v. Carland, 3 Dev. (Law), 114.

$2519. Essentials of an indictment for subornation of perjury.

Tested by these authorities, both counts of the indictment are bad, first, because they do not aver that the defendants knew that the testimony which they instigated the witnesses to give was false, and, second, because there is no averment that the defendants knew that the witness knew that the testimony she was instigated to give was false. Demurrer sustained.

$2520. Materiality.— An indictment for perjury is good without any averment of materiality, when it appears upon its face that the fact alleged to have been falsely sworn to was a material one. United States v. McHenry,* 6 Blatch., 503.

$2521. An indictment for perjury must aver the materiality of the facts, or must aver facts from which materiality may be inferred. United States v. Cowing,* 4 Cr. C. C., 613. § 2522. In bankruptcy.- An iudictment for false swearing in a proceeding in bankruptcy, which alleges that the proceeding was before a judge sitting in bankruptcy," sufficiently describes the judge. United States v. Deming,* 4 McL., 3.

§ 2523. An indictment for perjury, in making a false affidavit to a petition in bankruptcy, need not set out the petition; a mere reference to its character and object is sufficient. Ibid. § 2524. An indictment for perjury in making a false schedule in bankruptcy need not set out the schedule at large. United States v. Chapman,* 3 McL., 390.

§ 2525. On an indictment for perjury in swearing to a false schedule in bankruptcy, it is sufficient to allege that the property was withheld to defraud one of the creditors, naming him, and others. It is not necessary to name all the creditors. Ibid.

§ 2526. Time.- An indictment for perjury must allege the day on which the trial took place in which the defendant was sworn; for want of such allegation the judgment will be arrested. United States v. Bowman,* 2 Wash., 328.

§ 2527. Variance as to matter sworn to.- In an indictment for perjury, any discrepancy between what the defendant swore to in the deposition alleged to have been falsely sworn to, and what is set out in the indictment as having been sworn to by him, is fatal to a conviction. United States v. Coons,* 1 Bond, 1.

§ 2528. Variance as to time.- Where an indictment for perjury charged the offense to have been committed at a trial before the circuit court of the United States on the 19th day of May, 1811, and the record of the trial showed that it was held on the 20th day of May, the variance was held to be fatal. United States v. McNeal,* 1 Gall., 387.

§ 2529. Knowingly and corruptly. An indictment for perjury, either under the thirteenth section of the act of March 3, 1825, or the third section of the act of March 1, 1823, must aver that the defendant knew that he swore falsely and that his motive was corrupt. United States v. Babcock,* 4 McL, 113.

§ 2530. Stating the law. It is not necessary to aver, in an indictment for perjury, what act or acts of congress required the oath to be taken. That the oath was taken, the description of the oath and its occasion, are the only matters of fact necessary to be alleged to show the materiality of the oath, and that it was required by law. United States v. Nickerson,* 17 How., 204. § 2531. Must state court in which committed.— An indictment for perjury, which declares the offense to have been committed on the hearing of a certain complaint against a certain person for piracy "depending before the honorable John Davis, then and ever since being judge of the district court of the United States for the aforesaid district of Massachusetts, and a magistrate of the said United States," is insufficient, because it does not charge the offense to have been committed in any court of the United States, nor in any deposition pursuant to its laws, as is required by the act of April 30, 1790, on which the indictment is founded, and which punishes any person who “shall wilfully and corruptly commit perjury, in any controversy, matter or cause, depending in any of the courts of the United States, or in any deposition taken pursuant to the laws of the United States." United States v. Clark,* 1 Gall., 497.

..

§ 2532. Subornation of perjury.-Section 13 of the act of March 3, 1825, provides that "if any person in any case where an oath or affirmation shall be required to be taken or administered under or by any law or laws of the United States shall, upon the taking of such oath or affirmation, knowingly and wilfully swear or affirm falsely, every such person so offending shall be deemed guilty of perjury; .. and, if any person or persons shall knowingly or wilfully procure any such perjury to be committed, any person so offending shall be deemed guilty of subornation of perjury." An indictment, under this section, which alleges that the defendant did feloniously, knowingly and wilfully procure certain persons named to swear falsely in taking an oath, etc., but does not allege that these persons or either of them did knowingly and wilfully swear falsely, is fatally defective. United States v. Wilcox,* 4 Blatch., 393. See $$ 2510-11.

8. Miscellaneous Offenses.

SUMMARY — Defrauding the government; felonious intent, § 2533.— Sending false affidavit to pension office, §§ 2534, 2535.— Smuggling, §§ 2536–2539. — Effecting a false entry of goods, §§ 2540, 2541.

§ 2533. An indictment, under the third section of the act of March 3, 1823, declaring that any person shall be deemed guilty of felony who "shall transmit to or present at, or cause or procure to be transmitted to or presented at, any office or officer of the government of the United States, any deed, . . . or other writing in support of or in relation to any account or claim, with intent to defraud the United States, knowing the same to be false, altered, forged, or counterfeited," is not fatally defective for not charging the acts to have been committed by the defendant feloniously, or with felonious intent. The felonious intent is no part of the description of the offense. Felony is the conclusion of law from the acts done with the intent described. United States v. Staats, §§ 2542-44.

§ 2534. Though a charge in an indictment for sending a false and fraudulent "writing and affidavit” to the pension office might be ambiguous if standing alone, yet where the writing is set out and it appears that it is but one instrument, such description is sufficient and proper. United States v. Corbin, §§ 2545-47.

§ 2535. An indictment for sending a false and fraudulent affidavit to the pension office must describe the particulars wherein such instrument was false and fraudulent, and if it was false in the statement of a fact, it must be shown that that fact was material. Ibid.

§ 2536. In an indictment for smuggling it is not necessary to describe the property with such particularity as will obviate all necessity for proof outside the record to support a plea of once in jeopardy. It is sufficient if the description in the indictment, together with such evidence as the trial must necessarily furnish, will fully protect in any future prosecutions for the same offense. United States v. Claflin, § 2548-54.

§ 2537. If, in an indictment for smuggling, the description of the goods smuggled is insufficient to enable the defendant to prepare his defense, the court, on his sworn application stating that fact, will order a bill of particulars to be furnished him. Ibid.

§ 2538. On an indictment for buying smuggled goods it is not necessary to describe the goods with the same particularity of time, place and circumstance as would be required in an indictment for smuggling. It is sufficient to describe the goods as having been previously smuggled, but it is insufficient to say that they have been imported contrary to law. Ibid. § 2539. The word smuggle is a technical word having a known and accepted meaning -a necessary meaning in a bad sense. It implies something illegal, and is inconsistent with an innocent intent. The idea conveyed by it is that of a secret introduction of goods with intent to avoid payment of duty. Ibid.

§ 2540. The offense of effecting a false entry of goods, and of aiding in effecting such entry, may be committed by different persons, yet they are different stages of the same offense, and may be charged conjunctively against one person in one count of an indictment, and proof of either will sustain the charge. United States v. Bettilini, § 2555-56.

§ 2541. The offense of making a false entry of goods, and aiding in making a false entry of goods, is a misdemeanor where all are principals. Ibid.

[NOTES.-See $$ 2557-2667.]

UNITED STATES v. STAATS.

(8 Howard, 41-47.. 1849.)

CERTIFICATE OF DIVISION from U. S. Circuit Court, Northern District of New

York.

Opinion by MR. JUSTICE NELSON.

STATEMENT OF FACTS. The prisoner was indicted under the third section of the act of congress passed 3d March, 1823, entitled "An act for the punishment of frauds committed on the government of the United States." The section provides that, if any person shall falsely make, alter, forge or counterfeit, etc., ay deed, power of attorney, order, certificate, receipt or other writing, for the purpose of obtaining or receiving, or of enabling any other person or persons, either directly or indirectly, to obtain or receive from the United States, or