the same principle, it is conceived, will apply to any other case of accidental obstruction. The navigable or public character of the river or highway, may also be controverted by evidence.1

1 Commonwealth v. Chapin, 5 Pick. 199.

PERJURY.

§ 188. THIS crime is the subject of statute provisions, to a greater or less extent, in all the United States; and in some statutes it is particularly defined; but cases, not provided for by statute, are understood to remain offences at common law. The crime, as described in the common law, is committed when a lawful oath is administered, in some judicial proceeding, or due course of justice, to a person who swears wilfully, absolutely, and falsely, in a matter material to the issue or point in question.1 Where the crime is committed at the instigation or procurement of another, it is termed subornation of perjury, in the party instigating it; and is equally punishable, by the common law. And though the person thus instigated to take a false oath, does not take it, yet the instigator is still liable to punishment.2

§ 189. The indictment for perjury will of course specify all the facts essential to this offence; namely, 1st, the judicial proceedings, or due course of justice, in which the oath was taken; 2dly, the oath, lawfully taken by the prisoner; 3dly, the testimony which he gave; 4thly, its materiality to the issue or point in hand; and, 5thly, its wilful falsehood.

§ 190. 1st. In regard to the character of the proceeding in which the oath is taken, it may be stated, as the general principle, that wherever an oath is required, in the regular administration of justice, or of civil government, under the

1 3 Inst. 164; 4 Bl. Comm. 187; 1 Hawk. P. C. ch. 69, § 1; 2 Russ. on Crimes, 596; Whart. Am. Crim. L. 650.

2 1 Hawk. P. C. ch. 69, § 10.

general laws of the land, the crime of perjury may be committed. It has therefore been held sufficient, if it be proved that the crime was committed by the prisoner, in his testimony orally as a witness in open Court, or in an information or complaint to a magistrate, or before a commissioner or a magistrate, in his deposition;1 in any lawful Court whatever, whether of Common Law, or Equity; 2 or Court Ecclesiastical; of record, or not of record; and whether it be in the principal matter in issue, or in some incidental or collateral proceeding, such as before the Grand Jury, or in justifying bail, or the like; and whether it be as a witness, or as party, in his own case, where his testimony or affidavit may lawfully be given. And where, upon qualification for any office or civil employment, of honor, trust, or profit, an oath is required of the person, stating some matter of fact, a wilful and corrupt false statement in such matter, is perjury. It is sufficient, if it appear primâ facie, that the Court had jurisdiction of the matter, and that the Judge, Magistrate, or Officer, before whom the oath was taken was de facto in the ordinary exercise of the office; 8 such evidence, on the part of the pro

1 1 Hawk. P. C. ch. 69, § 3; 2 Chitty, Cr. L. 443, 445; Regina v. Gardiner, 8 C. & P. 737; Carpenter v. The State, 4 How. Miss. R. 163. Or, before a State magistrate, under an act of Congress. U. States v. Bailey, 9 Pet. 238.

2 Ibid.; 5 Mod. 348; Crew v. Vernon, Cro. Car. 97, 99; Poultney v. Wilkinson, Cro. El. 907.

3 Shaw v. Thompson, Cro. El. 609; Hawk. P. C. ch. 69, § 3.

4 2 Roll. Abr. 257, Perjury, pl. 2; 1 Hawk. ub. supra; 5 Mod. 348; People v. Phelps, 5 Wend. 10.

The

5 Regina v. Hughes, 1 C. & K. 519; 1 Roll. Abr. 39, 40; Royson's case, Cro. Car. 146; Commonwealth v. White, 8 Pick. 455; The State v. Offutt, 4 Blackf. 355; The State v. Fassett, 16 Conn. 457; The State v. Moffatt, 7 Humph. 250.

61 Hawk. P. C. ch. 69, § 5; Respublica v. Newell, 3 Yeates, 407; The State v. Steele, 1 Yerg. 394; The State v. Johnson, 7 Blackf. 49.

7 Rex v. Lewis, 1 Stra. 70; Report Commrs. Mass. on Crim. Law, tit. Perjury, 13; The State v. Wall, 9 Yerg. 347, was the case of a juror, examined as to his competency.

8 See ante, Vol. 1, § 83, 92; The State v. Hascall, 6 N. Hamp. 352; The

secution, devolving on the prisoner the burden of showing the contrary. But this rule is applicable only to public functionaries; and therefore, where the authority to administer the oath was derived from a special commission for that purpose, as in the case of a commission out of Chancery, to take testimony in a particular cause, or where it is delegated to be exercised only under particular circumstances, as in the case of commissioners in bankruptcy, whose power depends on the fact that an act of bankruptcy has been committed, or the like; the commission, in the one case, or the existence of the essential circumstances, in the other, must be distinctly proved.1

§ 191. The competency of the witness to testify, or the fact that he was not bound to answer the question propounded to him, or the erroneousness of the judgment founded upon his testimony, are of no importance; it is sufficient, if it be shown that he was admitted as a witness, and did testify.2 But if he were improperly admitted as a witness, in order to give jurisdiction to the Court, it being a Court of special and limited jurisdiction, his false swearing is not perjury.3

§ 192. 2dly. In proof of the oath taken, under the usual allegation that he "was sworn and examined as a witness," or, "sworn and took his corporal oath," it will be sufficient to give evidence that it was in fact taken in some one of the modes usually practised. But if it be alleged that it was taken on the gospels, and the proof be that it was taken with

State v. Gregory, 2 Murphy, 69; Rex v. Verelst, 3 Campb. 432; Rex v. Howard, 1 M. &. Rob. 187.

1 Rex v. Punshon, 3 Campb. 96.

2 Montgomery v. The State, 10 Ohio, 220; Haley v. McPherson, 3 Humph. 104; Sharp v. Wilhite, 2 Humph. 434; 1 Sid. 274; Shaffer v. Kintner, 1 Binn. 542; Rex v. Dummer, 1 Salk. 374; Van Steenbergh v. Kortz, 10 Johns. 167; The State v. Molier, 1 Dev. 263.

3 Smith v.

Bouchier, 2 Stra. 993; 10 Johns. 167.

4 Rex v. Rowley, Ry. & M. 302; 2 Chitty, Crim. L. 309; Rex. v. McCarther, 1 Peake's Cas. 155; The State v. Norris, 9 N. Hamp. p. 96.

an uplifted hand, the variance will be fatal; for the mode in such case is made essentially descriptive of the oath.1 So, it is conceived, it would be, if the allegation were that the party was sworn, and the proof were of a solemn affirmation; or the contrary. Nor is it a valid objection, that the oath was irregularly taken; as for example, where the witness was sworn to testify the whole truth, when he should have been sworn only to make true answers. Where the oath was made to an answer in Chancery, deposition, affidavit, or other written paper, signed by the party, the original document should be produced, with proof of his handwriting, and of that of the magistrate before whom it was sworn; which will be suffi cient evidence of the oath, to throw on the prisoner the burden of proving that he was personated on that occasion by a stranger. If the affidavit were actually used by the prisoner, in the cause in which it was taken, proof of this fact will supersede the necessity of proving his handwriting. The rule

in these cases seems to be this; that the proof must be sufficient to exclude the hypothesis that the oath was taken by any other person than the prisoner. If the document appears to have been signed by the prisoner with his name, it

1 See ante, Vol. 1, § 65; The State v. Porter, 2 Hill, S. C. R. 611. And see the State v. Norris, 9 N. Hamp. 96; Rex v. McCarther, 1 Peake's Cas.

155.

2 The State v. Keene, 13 Shepl. 33.

3 Rex v. Morris, 2 Burr. 1189; Rex v. Benson, 2 Campb. 508; Cook v. Dowling, 3 Doug. 75; Ewer v. Ambrose, 4 B. & C. 25; Commonwealth v. Warder, 11 Met. 406; Ante, Vol. 1, § 512. Where perjury was assigned upon an answer in Chancery, to a bill filed by A. "against B. and another," and it appeared that in fact the bill was against B. and several others; Lord Ellenborough held it nevertheless sufficient, and no variance in the proof; upon the statute of 23 Geo. 2, c. 11, § 1, which only required that such proceedings be set out according to their substance and effect. Rex v. Benson, supra. The rule, it is conceived, is the same at common law.

4 Rex v. James, 1 Show. 397; Carth. 220, S. C. It was Carthew's report of this case, which was denied by Ld. Mansfield, in Crook v. Dowling, supra; it not appearing that the affidavit, of which a copy only was offered, had been used by the prisoner. And see Rees v. Bowen, M'Cl. & Y. 383. 5 Rex v. Brady, 1 Leach, C. C. 368; Rex v. Price, 6 East, 323.