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creates the special authority. 2 Stark. Ev. 622, 2d ed. Thus upon an indictment for perjury against a bankrupt, in passing his last examination, Lord Ellenborough ruled that it was necessary to give strict proof of the bankruptcy, which went to the authority of the commissioners to administer an oath, for unless the defendant really was a bankrupt, the exami nation was unauthorized. Punshon's case, 3 Campb. 96; 3 B. and C. 354 (a).
Where a cause was referred by a judge's order, and it was directed that the witnesses should be sworn before a judge, "or before a commissioner duly authorized," and a witness was sworn before a commissioner for taking affidavits (empowered by stat. 29 Car. 2, c. 5,) it was held that he was not indictable for perjury, the commissioner not being "duly authorized" by the statute to administer an oath for a viva voce examination. Hanks's case, 3 C. & P. 419 (b). So on an indictment for perjury, before a justice, in swearing that J. S. had sworn twelve oaths, where the charge as stated did not import that the oaths were sworn in the county in which the justice acted, Eyre, J., arrested the judgment, because, as the charge did not so import, the justice had no power to administer the oath to the defendant. Wood's case, 2 Russell, 540.
In the case of a trial taking place where the court has no jurisdiction, as where one of several co-plaintiffs dies, and his death is not suggested on the roll, pursuant to the 8 & 9 Wm. 3, c. 11, s. 6, the suit is abated, and for evidence given at the trial a witness cannot be indicted for perjury. Cohen's case, 1 Stark. N. P. C. 511 (c). So a false oath taken in the court of requests, in a matter concerning lands, has on the same ground been held not to be indictable. Baston v. Gouch, 3 Salk. 269. But a false oath taken before commissioners, whose commission is at the time in strictness determined by the death of the king, is perjury, if taken before the commissioners had notice of the demise. Hawk. P. C. b. 1, c. 69, s. 4; 2 Russell, 521.
No oath taken before persons acting merely in a private capacity, or before those who take upon them to administer oaths of a public nature without legal authority; or before those who are authorized to administer some oaths, but not that which happens to be taken before them, or even before those who take upon them to administer justice by virtue of an authority seemingly colorable, but in truth void, can never amount to per[*757] jury in the eye of the law, for they are *of no manner of force. Hawk. P. C. b. 1, c. 69, s. 4; 2 Russell, 521 (1).
The authority by which the party is empowered to administer the oath, must, if specially described, be proved as laid. Therefore where the indictment stated the oath to have been administered at the assizes, before justices assigned to take the said assizes, before A. B., one of the said justices, the said justices having then and there power, &c., and in fact the judge, when the oath was administered, was sitting under the commission of oyer and terminer and gaol delivery, this was held to be a fatal variance. Lincoln's case, Russ. and Ry. 421 (d). But an indictment for perjury at the assizes may allege the oath to have been taken before one of the judges in the commission, though the names of both appear. Alford's case, 1 Leach, 150.
(1) State v. Hayward, 1 N. & M'C. 547. U. S. v. Bailey, 9 Peters, 238. Shaffer v. Kintzer, 1 Binn. 542. See Chapman v. Gillett, 2 Conn. 40. 2 Russell on C. & M. 517, n. A. (a) Eng. Com. L. Rep. x. 459. (b) Id. xiv. 376. (c) Id. ii. 489. (d) 1 Eng. C. C. 421.
On an indictment for perjury alleged to have been committed on the hearing an information under the Beer Act, 1 Wm. 4, c. 64, s. 15, before two justices at petty sessions; Park and Patteson, JJ., held, that it was necessary to aver that the justices were acting in and for the division or place in which the house was situate; but that it was not necessary to allege they were acting in petty session, as every meeting of two justices in one place for business is itself a petty session. Rawlin's case, 8 C. and P. 439 (a).
An indictment for perjury committed before a magistrate, stated, that the defendant went before the magistrate and was sworn, and that being so sworn, he did falsely, &c. " say, depose, swear, charge, and give the said justice to be informed," that he saw, &c.; it was held by the judges that this sufficiently showed that the oath was taken in a judicial proceeding. Gardiner's case, 8 C. and P. 737 (b).
In a previous case, where the indictment merely stated that the defendant, intending to subject W. M. to the penalties of felony, went before two magistrates, and “did depose and swear," &c. (setting out a deposition, which stated, that W. B. had put his hand into the defendant's pocket, and taken out a 5l. note) and assigning perjury upon it; Coleridge, J., held that the indictment was bad, as it did not show that any charge of felony had been previously made, or that the defendants then made any charge of felony, or that any judicial proceeding was pending before the magistrates. Pearson's case, 8 C. and P. 119 (c).
It is not necessary in the indictment to show the nature of the authority of the party administering the oath. Callanan's case, 6 B. and C. 102 (d).
Proof of the occasion of administering the oath.] The occasion of administering the oath must be proved as stated. Thus, if the perjury were committed on the trial of a cause at Nisi Prius, the record must be produced in order to show that such a trial was had; 2 Stark. Ev. 622, 2d ed.; and for this purpose the Nisi Prius record is sufficient (1). Iles' case, Cases temp. Hardw. 118, ante, p. 188. The occasion, and the parties before whom it came on to be tried, must be correctly stated, and a variance will be fatal, as where it was *averred that a cause came [*758] on to be tried before Lloyd, Lord Kenyon, &c., William Jones being associated, &c., and it appearing that Roger Kenyon was associated, it was ruled to be a fatal variance. Eden's case, 1 Esp. 97.
With regard to the occasion upon which the oath is administered, it is not merely before courts of justice, even at common law, that persons taking false oaths are punishable for perjury. Any false oath is punishable as perjury, which tends to mislead a court in any of its proceedings relating to a matter judicially before it, though it in no way affects the principal judgment which is to be given in the cause; as an oath made by a person offering himself as bail. And not only such oaths as are taken on judicial proceedings, but also such as any way tend to abuse the administration of justice, are properly perjuries, as an oath before a justice to compel another to find sureties of the peace; before commissioners appointed by the king to inquire into the forfeiture of his tenants' estates, or com
(1) Resp. v. Goss & al., 2 Yeates, 479.
(a) Eng. Com. L. Rep. xxxiv. 470. (b) Id. 611. (c) Id. 321. (d) Id. xiii. 109.
missioners appointed by the king to inquire into defective titles. Hawk. P. C. b. 1, c. 69, s. 3. A false oath in any court, whether of record or not, is indictable for perjury. 5 Mod. 348. And perjury may be assigned upon the oath against simony, taken by clergymen at the time of their institution. Lewis's case, 1 Str. 70.
A man may be indicted for perjury in an oath taken by him in his own cause, as in an answer in Chancery, or to interrogatories concerning a contempt, or in an affidavit, &c., as well as by an oath taken by him as a witness in the cause of another person. Hawk. P. C. b. 1, c. 69, s. 5 (1). Perjury cannot be assigned upon a false verdict, for jurors are not sworn to depose the truth, but only to judge truly of the depositions of others. Id.
Where the prisoner was indicted for taking a false oath before a surrogate to procure a marriage licence, being convicted, the judges, on a case reserved, were of opinion that perjury could not be charged upon an oath taken before a surrogate. They were also of opinion that as the indictment in this case did not charge that the defendant took the oath to procure a licence, or that he did procure one, no punishment could be inflicted. Foster's case, Russ. and Ry. 459 (a); and see Alexander's case, 1 Leach, 63; see also 1 Vent. 370, and Deacon's Observations, 2 Dig. C. L. 1001.
Perjury cannot be assigned upon an affidavit sworn in the Insolvent Debtors' Court by an insolvent respecting the state of his property and his expenditure, for the purpose of obtaining an extended time to petition under the 10th section of the 7 Geo. 4, c. 57, without proving that the court by its practice requires such an affidavit. And such proof is not given by an officer of the court producing printed rules, purporting to be rules of the court, which he has obtained from the clerk of the rules, and is in the habit of delivering out as rules of the court, but which are not otherwise shown to be rules of the court, the officer professing to have no knowledge of the practice, except from such printed rules. Koops's case, 6 Ad. and E. 198 (b).
[*759] *Lord Tenterden, C. J., held that an indictment for perjury would not lie under the 71st section of the 7 Geo. 4, c. 57, against an insolvent debtor for omissions of property in his schedule, such offence being made liable to punishment under the 70th section as a substantive misdemeanor. Mudie's case, 1 Moo. and R. 128.
The object with which the oath was taken need not be carried into effect, for the perjury is complete at the moment when the oath is taken, whatever be the subsequent proceedings. Thus where the defendant was indicted for perjury in an affidavit which could not, from certain defects in the jurat, be received in the court for which it was sworn; Littledale, J., was of opinion that nevertheless perjury might be assigned upon it. Hailey's case, Ry. and Moo. N. P. C. 94 (c). So it was ruled by Lord Tenterden that a party filing a bill for an injunction, and making an affidavit of matters material to it, is indictable for perjury committed in that affidavit, though no motion is ever made for an injunction. White's case, Moody and Malkin, 271 (d).
(1) Resp. v. Newell, 3 Yeates, 414.
(a) 1 Eng. C. C. 459. (b) Eng. Com. L. Rep. xxxiii. 51. (c) ld. xi. 383. (d) Id. xxii. 304.
Proof of the taking of the oath.] It is sufficient in the indictment to state that the defendant duly took the oath (1). M'Arther's case, Peake, N. P. C. 155. But where it was averred that he was sworn on the Gospels, and it appeared that he had been sworn according to the custom of his own country, without kissing the book, it was held a fatal variance, though the averment was afterwards proved by its appearing that he was previously sworn in the ordinary manner. Id.
The mode of proving that the defendant was sworn, in an indictment for perjury in an answer in chancery, is by producing the original answer signed by him, and proving his handwriting, and that of the Master in Chancery to the jurat, together with proof of the identity of the defendant. Morris's case, 1 Leach, 50; 2 Burr. 1189; Benson's case, 2 Campb. 508. The making of an affidavit is proved in the same manner by production and proof of the handwriting. Ante, p. 189.
Where the affidavit upon which the perjury was assigned, was signed only with the mark of the defendant, and the jurat did not state that the affidavit was read over to the party, Littledale, J., said, "As the defendant is illiterate, it must be shown that she understood the affidavit. Where the affidavit is made by a person who can write, the supposition is that such person is acquainted with its contents, but in the case of a marksman it is not so. If in such a case a master by the jurat authenticates the fact of its having been read over, we give him credit, but if not, he ought to be called upon to prove it. I should have difficulty in allowing the parol evidence of any other person." Hailey's case, 1 C. and P. 258 (a).
It is incumbent upon the prosecutor to give precise and positive proof that the defendant was the person who took the oath. Brady's case, 1 Leach, 330; but this rule must not be taken to exclude circumstantial evidence. Price's case, 6 East, 323; Stark. Ev. 624, 2d ed.
It must appear that the oath was taken in the county where the venue *is laid; and the recital in the jurat of the place where the oath [ *760 ] is administered, is sufficient evidence that it was administered at the place named. Spencer's case, Ry. and Moo. N. P. C. 98 (b). But though the jurat state the oath to be taken in one county, the prosecutor may show that it was in fact taken in another. Emden's case, 9 East, 437. A variance as to the place of taking in the same county, will not be material; thus, if it be alleged to be taken at Serjeants' Inn, in London, and it appear to have been taken in Cheapside, this is not material. Taylor's case, Skinner, 403.
The making of a false affirmation by a Quaker or Moravian, must be proved in the same manner as the taking of a false oath. By the 22 Geo. 2, c. 46, s. 36, if any Quaker making the declaration or affirmation therein mentioned, shall be lawfully convicted of having wilfully, falsely, and corruptly affirmed and declared any matter or thing, which, if the same had been deposed in the usual form, would have amounted to wilful and corrupt perjury, every person so offending shall incur and suffer the pains, penalties, &c., inflicted on persons convicted of wilful and corrupt perjury. The 9 Geo. 4, c. 32, 3 & 4 Wm. 4, c. 49, 3 & 4 Wm. 4, c. 82, and 1 & 2 Vict. c. 77, which admit the evidence of Quakers, Moravians, and Separatists, in all cases whatsoever, criminal or civil, contain similar clauses.
(1) Resp. v. Newell, 3 Yeates, 414.
See ante, p. 121; and there are various other statutes by which false affirmations are subjected to the penalties inflicted on perjury.
Although the taking of a false oath required by statute is a misdemeanor, it is not perjury, unless made so by the statute. Mudie's case, ante, p. 759; and see De Beauvoir's case, 7 C. and P. 20 (a); and see also Harris's case, Id. 253 (b), and Dodsworth's case, 8 C. and P. 218 (c); as to giving false answers at an election.
By the 5 & 6 Wm. 4, c. 62, abolishing unnecessary oaths and substituting declarations in lieu thereof (but which, by s. 9, does not extend to proceedings in courts of justice, or before justices of the peace), persons making false declarations shall (s. 21) be guilty of a misdemeanor.
Proof of the substance of the oath.] In proving the substance of the oath, or the matter sworn to by the defendant, it was long a question how far it was incumbent on the prosecutor to prove the whole of the defendant's statement relative to the same subject matter, as where he has been both examined and cross-examined; or whether it was sufficient for him merely to prove so much of the substance of the oath as was set out on the record, leaving it to the defendant to prove any other part of the evidence given by him, which qualified or explained the part set out. Thus Lord Kenyon ruled, that the whole of the defendant's evidence on the former trial should be proved, for if in one part of his evidence he corrected any mistake he had made in another part, it would not be perjury. Jones's case, Peake, N. P. C. 33; see also R. v. Dowlin, Id. 170; 2 Chitty, C. L. 312, 2d ed.; Anon. cor. Lord Gifford, cited Ry. and Moo. N. P. C. 300 (d), vide post, 763.
[*761] *It was formerly thought that an oath did not amount to perjury unless sworn in absolute and direct terms, and that if a man swore according as he thought, remembered, or believed only, he could not be convicted of perjury. 3 Inst. 166. But the modern doctrine is otherwise. It is said by Lord Mansfield to be certainly true, that a man may be indicted for perjury in swearing that he believes a fact to be true, which he knows to be false. Pedley's case, 1 Leach, 327. De Grey, C. J., also, in Miller's case, 3 Wils. 427; 2 Bl. 881, observed, that it was a mistake mankind had fallen into, that a person cannot be convicted of perjury who swears that he thinks or believes a fact to be true, for that he certainly may, and it only renders the proof of it more difficult. The same question was agitated in the Common Pleas, when Lord Loughborough and the other judges were of opinion, that belief was to be considered as an absolute term, and that an indictment might be supported on it. Anon.; Hawk. P. C. b. 1, c. 69, s. 7, (n) (1).
So perjury may be committed by swearing to a statement which in one sense is true, but which, in the sense intended to be impressed by the party swearing, is false, as in a case mentioned by Lord Mansfield. The witness swore that he left the party whose health was in question, in such a way that were he to go on as he then was, he would not live two hours. It afterwards turned out that the man was very well, but had got a bottle of gin to his mouth, and true it was, in a sense of equivocation,
(1) Commonwealth v. Cornish, 6 Binn. 249.
(a) Eng. Com. L. Rep. xxxii. 422. (b) Id. 253. (c) Id. xxxiv. 360. (d) Id. xxi. 445.