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that the posteu is ever made up here differently, when a judge of the court sits for the chief justice. Coppard's case, Moody and Malk. 118 (a).

But where an indictment for perjury assigned on an affidavit made for the purpose of setting aside a judgment since the rule of H. T., 4 Wm. 4, alleged, that the judgment was entered up in or as ofTrinity Term, 5 Wm. 4, and the record of the judgment, when produced, was dated “June the 26th, 5-Wm. 4.” Patleson, J., held this to be a variance, and refused to annend under the 9 Geo. 4, c. 15. Cooke's case, 7 C. and P. 559 (6). [*769) *An allegation that the defendant made bis warrant of attorney, directed to R. W. and F. B., “then and still being attornies” of the K. B., is proved by putting in the warrant. Ibid.

Where in an indictinent for perjury against C. D. it was averred, that a cause was depending between A. B. and C. D. ; Lord Denman, C. J., held that a notice of set-off intituled in a cause A. B. against C. D., was not sufficient evidence to support the allegation. Stoveld's case, 6 C. and P. 486 (c).

Proof of the falsity of the matter sworn.] Evidence must be given to prove the falsity of the matter sworn 10 by the defendant; but it is not necessary to prove that all the matters assigned are false ; for, if one distinct assignment of perjury be proved, the defendant ought to be found guilty. Rhodes's case, 2 Lord Raym. 986; 2 W. Bl. 790; 2 Stark. Ev. 627, 2d ed. And where the defendant's oath is as to his belief only, the averment that he “ well knew to the contrary” must be proved. See 2 Chitty, C. L. 312; 2 Russell, 542.

An assignment of perjury that the prosecutor did not at the time and place sworn to, or at any other time or place, commit bestiality with a donkey (as sworn to) or with any other animal whatsoever, is sufficiently proved by the evidence of two witnesses falsifying the deposition which had been sworn to by the defendant. Gardiner's case, 8 C. and P. 737 (d).

Where the prosecutor gave no evidence upon one of several assignments of perjury, Lord Denman, C. J., refused to allow the defendant to show that the matter was not false. Ilemp's case, 5 C. and P. 468 (e).

Proof of the corrupt intention of the defendant.] Evidence is essential, not only to show that the witness swore falsely in fact, but also, as far as circumstances tend to such proof, to show that he did so corruptly, wilfully, and against his better knowledge. 2 Stark. Ev. 627, 2d ed. In this, as in other cases of intent, the jury may infer the motive from the circumstances. Knill's case, 5 B. and A. 929, (n.) (f).

There must be proof that the false oath was taken with some degree of deliberation ; for if, under all the circumstances of the case, it appears that it was owing to the weakness rather than the perverseness of the party, as where it is occasioned by surprise or inadvertance, or by a mistake with regard to the true state of the question, this would not amount to voluntary and corrupt perjury. Hawk. P. C. b. 1, c. 69, s. 2; 2 Russell, 518; 4 Bl. Com. 137.

(a) Eng. Com. L. Rep. xiv. 210. (b) ld. xxxii. 629. (c) Id. xxv. 504. (d) Id. xxxiv.

611. (e) Id. xxiv. 410. (f) Id. vii. 306.

Witnesses-number requisite.] It is a general rule, that the testimony of a single witness is insufficient to convict on a charge of perjury. This is an arbitrary and peremptory rule, founded upon the general apprehension that it would be unsafe to convict, in a case where there would be merely the oath of one man to be weighed against that of another. 2 Stark. Ev. 626, 2d ed. ; 2 Russell, 544. *Hawk. P. C. b. 1, c. [ *970 ) 69; 4. Bl. Com. 358. But it is said that this rule must not be understood as establishing that two witnesses are necessary to disprove the fact sworn to by the defendant; for, if any other material circumstance be proved by other witnesses, in confirmation of the witness who gives the direct testimony of perjury, it may turn the scale and warrant a conviction. Lee's case, 2 Russell, 545. So it is said by Mr. Phillipps, that it does not appear to have been laid down that two witnesses are necessary to disprove the fact sworn to by the defendant; nor does that seem to be absolutely requisite; that at least one witness is not sufficient; and, in addition to his testimony, some other independent évidence ought to be produced (1). 1 Phill. Ev. 141, 6th ed.

A distinction, however, appears to be taken between proving the positive allegations in the indictment, and disproving the truth of the matter sworn to by the defendant; the latter, as it is said, requiring the testimony of two witnesses. Thus Mr. Sergeant Hawkins says, that it seems to be agreed that two witnesses are required in proof of the crime of perjury; but the taking of the outh and the facts deposed may be proved by one witness only. Hawk. P. C. b. 2, c. 46, s. 10." So it is said by Mr. Starkie (citing the above passage from Hawkins), that it seems the contradiction must be given by two direct witnesses ; and that the negative, supported by one direct witness and by circumstantial evidence, would not be sufficient. He adds that he had been informed that it had been so held by Lord Tenterden. 2 Stark. Ev. 626, (n.)

In Champney's case, 2 Lew. C. C. 258, Coleridge, J., said, “One witness in perjury is not sufficient, unless supported by circumstantial evidence of the strongest kind ; indeed Lord Tenterden was of opinion, that two witnesses were necessary to a conviction.” See Mudie's case, 1 Moo. and R. 128.

In a case of perjury on a charge of bestiality, the defendant swore that he saw the prosecutor committing the offence, and saw the flap of his trowsers unbuttoned. To disprove this, the prosecutor deposed that he did not commit the offence, and that his trowsers had no flap; and to confirm him, his brother proved that at the time in question the prosecutor was not out of his presence more than three minutes, and his trowsers had no flap. This was held by Patteson, J., to be sufficient corroborative evidence to go to the jury, who found the defendant guilty.. Gardiner's case, 8 C. and P. 737 (a).

But where a statement by the prisoner himself is given in evidence, contradicting the matter sworn to by him, it has been held not to be necessary to call two witnesses to prove the falsity ; one witness, with proof of the admission, being sufficient. The defendant made information, upon oath before a justice of the peace, that three women were concerned in a

(1) State v. Hayward, 1 N. & M'C. 547. Coulter v. Stewart, 2 Yerger, 225. Merrit's case, 4 Rogers' Rec. 58. Case of Francis & al., Id. 12.

(a) Eng. Com. L. Rep. xxxiv. 611.

riot at his mill (which was dismantled by a mob, on account of the price of corn); and afterwards, at the sessions, when the rioters were indicted, he was examined concerning those women, and having been tampered with in their favor, he then swore that they were not at the riot. There was no other evidence on the trial for perjury to prove that the [ *771 ] *women were in the riot (which was the perjury assigned), but the defendant's information, which was read. The judge thought this evidence sufficient, and the defendant was convicted and transported. Anon. cor. Yates, and afterwards Lord Mansfield, and Wilmot and Ashton, JJ., concurred, 5 B. and A. 939, 940, (n.) (a); 2 Russell, 545. So in a case where the defendant had been convicted of perjury, charged in the indictment to have been committed in an examination before the House of Lords, and the only evidence was a contradictory examination of the defendant before a committee of the House of Commons, application was made for a new trial, on the ground that in perjury two witnesses were necessary, whereas, in that case, only one witness had been adduced to prove the corpus delicti, viz. the witness who deposed to the contradictory evidence given by the defendant, before the committee of the House of Commons; and further it was insisted, that the mere proof of a contradictory statement by the defendant on another occasion was not sufficient, without other circumstances showing a corrupt motive, and negativing the probability of any mistake. But the Court held, that the evidence was sufficient, the contradiction being by the party himself; and that the jury might infer the motive from the circumstance; and the rule was refused. Knill's case, 5 B. and A. 929, note (a.) (b). So where, upon an indictment for perjury, in an affidavit made by the defendant, a solicitor, to oppose a motion in the Court of Chancery, to refer bis bill of costs for taxation, only one witness was called, and, in lieu of a second witness, it was proposed to put in the defendant's bill of costs, delivered by him to the prosecutor ; upon which it was objected that this was not sufficient, the bill not having been delivered on oath, Denman, C. J., was clearly of opinion, that the bill delivered by the defendant was sufficient evidence, or that even a letter written by the defendant, contradicting his statement on oath, would be sufficient to make it unnecessary to have a second witness. Maybew's case, 6 C. and P. 315 (c).

There appears, however, to be an objection to this evidence, which is not easily removed, namely, that there is nothing to show which of the statements made by the defendant is the false one, where no other evidence of the falsity is given. Upon this subject the following observations were made by Holroyd, J.: Although you may believe that, on the one or the other occasion the prisoner swore what was not true, it is not a necessary consequence that he committed perjury; for there are cases in which a person might very honestly and conscientiously swear to a particular fact, from the best of his recollection and belief, and from other circumstances at a subsequent time, be convinced that he was wrong, and swear to the reverse, without meaning to swear falsely either time. Again, if a person swears one thing at one time, and another at another, you cannot convict, where it is not possible to tell which is the true and which is the false. Jackson's case, 1 Lewin, C. C. 270. .

So in Harris's case 5 B. and A. 926, the Court of K. B. were of opin

(a) Eng. Com. L. Rep. vi. 308, n. (b) Id. 306.

(c) Id. xxv. 415.

ion (p. 937), that perjury could not be "legally assigned by showing contradictory depositions with an averment that each of *them was [ *772 ] made knowingly and deliberately, but without averring or showing in which of the two depositions the falsehood consisted. So where the defendant was charged with perjury committed on a trial at the sessions ; Gurney, B., held that a deposition made by the defendant before the magistrate entirely different froin what he swore at the trial, was not in itself sufficient proof that the evidence he gave at the sessions was false, but that other confirmatory proof must be adduced to satisfy the jury that he swore falsely at the trial. Strong confirmatory evidence having been given of the truth of the deposition, the defendant was found guilty. Wheatland's case, 8 C. and P. 238 (a).

The following observations on this subject, by an able writer on criminal law, are well deserving of attention. Where depositions, contrary to each other, have been emitted in the same matter by the same person, it may with certainty be concluded that one or the other is false. But it is not relevant to infer perjury in so loose a manner; the prosecutor must go a step further, and specify distinctly which of the two contains the falsehood, and peril his case upon the means he possesses of proving perjury in that deposition. To admit the opposite course, and allow the prosecutor to libel on both depositions, and make out his charge by comparing them together, without distinguishing which contains the truth and which the falsehood, would be directly contrary to the precision justly required in criminal proceedings. In the older practice this distinction does not seem to have been distinctly recognized; but it is now justly considered indispensable that the perjury should be specified as existing in one, and the other deposition referred to in modum probationis, to make out along with other circumstances, where the truth really lay. Alison, Princ. Cr. Law of Scot. 475. These remarks are applicable to the cases in our law, in which the evidence of one witness, viz. the party producing the contradictory statement, and the statement itself, have been allowed as sufficient evidence to prove the falsity of the oath. Such statements may be used as strong corroborations of the prosecutor's case, and as such they are admitted in the Scotch law. A party cannot be convicted (says Mr. Alison) of the perjury, upon the evidence merely of previous or subsequent declarations emitted by him, inconsistent with what he has sworn; because in dubio it must be presumed that what was said under the sanction of an oath was the truth, and the other an error or falsehood, but both such declarations and written evidence under his hand, inconsistent with what he has sworn, form important articles, which, with others, will be sufficient to make the scales of evidence preponderate against him. Principles of Crim. Law of Scot. 481.

Witnesses-competency of.] It was formerly ruled, that the party injured by the perjury was incoinpetent as a witness for the prosecution, where he might obtain relief in equity, on the ground of the perjury. Dalby's case, Peake, N. P. C. 12; Eden's case, 1 Esp. N. P.C. 97. But as it is now an established rule, that a court of *equity will not [ *773 ) grant relief on a conviction which proceeds on the evidence of the prose

(a) Eng. Com. L. Rep. xxxiv. 369.

cutor, there can be no objection to his being admitted as a witness, Bartlett v. Pickersgill, cited 4 Burr. 2255 ; 4 East, 577; Phill. Ev. 63, 8th ed. And, in general, the party prejudiced. is a competent witness to prove the offence. Broughton's case, 2 Str. 1230;. Abraham v. Bunn, 4 Burr. 2255; 2 Russell, 546. Ii is no objection to the competency of a witness, on an indictment for perjury committed in an answer in chancery, that in his answer to a cross bill, filed by the defendant, he has sworn the fact which he is to prove on the indictment. Pepys case, Peake, N. P. C. 138.

If several persons are separately indicted for perjury, in swearing to the samé fact, any of them, before conviction, may give evidence for the other defendants. 2 Hale, P. C. 280.

See further, title Witnesses, ante, p. 128, 181.

Statutes relating to perjury.] The principal statutory enactment re- · specting perjury, is the 5 Eliz. c. 9, the operation of which is, however, more confined than that of the common law; and as it does not (see sec. 13,) restrain in any manner the punishment of perjury at common law, it has seldom been the practice to proceed against offenders by indictment under this statute.

By sec. 3, the procuring any witness to commit perjury in any matter in suit, by writ, &c., concerning any lands, goods, &c., or when sworn in perpetuam rei memoriam, is punishable by the forfeiture of forty pounds.

By sec. 4, offenders not having goods, &c. to the value of forty pounds, are to suffer imprisonment, (and stand in the pillory.]

Sec. 5 enacts, that no person or persons, being so convicted or attainted, be from thenceforth received as a witness to be deposed and sworn in any court of record, (within England, Wales, or the marches of the same,) until such time as the judgment given against the said person or persons shall be reversed by attaint or otherwise ; and that upon every such reversal, the parties grieved to recover his or their darnages against all and every such person and persons as did procure the said judgment so reversed, to be first given against them or any of them by action or actions, to be sued upon his or their case or cases, according to the course of the common laws of the realm.

Sec. 6 enacts, that if any person or persons, either by the subornation, unlawful procurement, sinister persuation, or means of any others, or by their own act, consent, or agreement, wilfully and corruptly commit any manner of wilful perjury, by his or their deposition in any of the courts before mentioned, or being examined ad perpetuam rei memoriam, that then every person or persons so offending, and being thereof duly convicted or attainted by the laws of this realm, shall, for his or their said offence, lose and forfeit twenty pounds, and to have imprisonment by the space of six months, without bail or mainprize ; and the oath of such person or persons so offending, from thenceforth not to be received in any ( *774 ] court of *record within this realm of England or Wales, or the marches of the same, until such time as the judgment given against the said person or persons shall be reversed by attaint or otherwise; and that, upon every such reversal, the parties grieved to recover his or their damages against all and every such person and persons as did procure the said

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