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forming their several duties. The majority of the judges were of opinion, that an overseer cannot be indicted for not relieving a pauper, unless there has been an order of justices for such relief, or unless in a case of immediate and urgent necessity. Meredith's case, Russ. and Ry. 46 (a). But where the indictment stated that the defendant (an overseer) had under his care a poor woman belonging to his township, but neglected to provide for her necessary mcat, &c. whereby she was reduced to a state of extreme weakness and afterwards, through want, &c. died, the defendant was convicted, and sentenced to a year's imprisonment. Booth's case, Ibid. 47 (n.) (b. And in a case where an overseer was indicted for neglecting, when required, to supply medical assistance to a pauper laboring under dangerous illness, it was held that the offence was sufficiently charged and proved, though the pauper was not in the parish workhouse, nor had previously to bis illness received or stood in need of parish relief. Warren's case, coram Holroyd, Ibid. p. 48 (c).
By the 11 Geo. 1, c. 4, the chief officers of corporations, absenting themselves on the charter day for the election of officers, shall be imprisoned for six months. Such offence, however, is not indictable within the statute unless their presence is necessary to constitute a legal corporate assembly. Corry's case, 5 East, 372.
Proof of extortion.] One of the most serious offences committed by persons in office is that of extortion, which is defined to be the taking of money by an officer by color of his office, either where none at all is due, or not so much is due, or where it is not yet due. Hawk. P. C. b. 1, c. 68, s. 1. So the refusal by a public officer to perform the duties of his office, until his fees have been paid, is extortion. 3 Inst. 149; Hescott's case, 1 Salk. 330; Hutt. 53. So it is extortion for a miller or a ferryman to take more toll than is due by custom. Burdett's case, infra. So when the farmer of a market erected such a number of stalls 'that the market people had not space to sell their wares, it was held that the taking money from them for the use of the stalls was extortion. Burdett's case, 1 Ld. Raym. 149.
The prosecutor must be prepared to prove, first, that the defendant fills the office in question. For this purpose it will be sufficient to show, that he has acted as such officer; and secondly, the fact of the extortion. This must be done by showing what are the usual fees of the office, and proving the extortion of more. Several persons may be indicted jointly, if all are concerned ; for in this offence there are no accessaries, but all are principals. · Atkinson's case, 2 Lord R. 1248; 1 Salk. 382; Log. gen's case, 1 Str. 75.
The indictment must state the sum which the defendant received, but the exact sum need not be proved, as where he is indicted for extorting twenty shillings, it is sufficient to prove that he extorted *one [ *754 | shilling. Burdett's case, 1 Ld. Raym. 149; Gillham's case, 6 T. R. 267; Higgins's case, 4 C. and P. 247 (d).
The offence of extortion is punishable as a misdemeanor at common law, by fine and imprisonment, and by removal from office. Hawk. P. C. b. 1, c. 68, s. 5. Penalties are likewise added by the statute of Westm. 1, c. 26.
(a) 1 Eng. C. C. 46. (6) Id. 47. (c) Id. 48. (d) Eng. Com. L. Rep. xix. 368.
It is also an indictable offence to persuade another to extort' monet from a person, whereby money actually was extorted from him. Tracy's case, 3 Salk. 192 (1).
Proof on prosecutions for refusing to execute an office.] A refusal to execute an office to which a party is duly chosen, is an indictable offence, as that of constable ; Lone's case, 2 Str. 920; Genge's case, Cowp. 13; or overseer. Jones's case, 2 Str. 1145; 7 Mod. 410.
The prosecutor must prove the election or appointment of the defendant, his liability to serve, notice to him of his appointment, and his refusal. It must appear that the persons appointing him had power so to do. Thus on an indictment for not serving the office of constable on the appointment of a corporation, it must be stated and proved that the corpo ration had power by prescription to make such an appointment, for they possess no such power of common right. Bernard's case, 2 Salk. 52; i Ld. Rayın. 94. The notice of his appointment must then be proved, Harpur's case, 5 Mod. 96, and his refusal, or neglect to perform the duties of the office, from which a refusal may be presumed.
For the defence, it may be shown that the defendant is not an inhabitant resiant, of the place for which he is chosen. Adlard's case, 4 B. and C, 772 (a); Donne v. Martyr, 8 B. and C. 62(b); and see the other grounds of exception enumerated in Archb. Cr. Pr. 630, 7th ed.
It is not any defence that the defendant resides in the jurisdiction of a leet within the hundred or place for which he is elected. Genge's case, Cowp. 13; or that no constable had ever before been appointed for the place. 2 Keb. 557.
The punishment is fine or imprisonment, or both. See Bower's case, 1 B. and C. 587 (c).
(1) The fees must be wilfully and corruptly demanded. It is not extortion in case of mistake, or for extra trouble in conformity with usage. Commonwealth r. Shed, 2 Mass. 227. There must be the receipt of money or some other thing of value. Taking a promissory note is not enough. Commonwealth v. Corry, 2 Mass. 524. See People v. Whaley, 6 Cow. 661.
(a) Eng. Com. L. Rep. x. 458. (6) Id. xv. 154. (c) Id. vii. 153.
At common law
755 | Proof of the corrupt intention of the deProof of the authority to administer an
769 oath 755 Witnesses, number requisite
- 769 Proof of the occasion of administering the
- 772 oath 757 Statutes relating to perjury
. 773 Proof of the taking of the oath
. 775 Proof of the substance of the oath 760 | Postponing trials for perjury
775 Proof of the materiality of the matter Subornation of perjury
. 776 sworn
Proof of the incitement - - 776 Proof of introductory averments
Proof of the taking of the false. Proof of the falsity of the matter sworn 769
The proofs required to support an indictment for perjury at common law will be first considered, and the statutes creating the offence of perjury in various cases will be subsequently stated.
Perjury at common law.] Perjury at common law is defined to be a wilful false oath by one who, being lawfully required to depose the truth in any proceeding in a court of justice, swears absolutely in a matter of some consequence to the point in question, whether he be believed or not. Hawk. P. C. b. 1, c. 69, s. 1. The proceedings, however, are not confined to courts of justice (1). Vide post, p. 758.
The taking of a false oath required by statute is not perjury, unless so declared by the act, but is a misdemeanor ; see post, p. 760.
To support an indictment for perjury, the prosecutor must prove, 1, the authority to administer an oath ; 2, the occasion of administering it; 3, the taking of the oath ; 4, the substance of the oath ; 5, the materiality of the matter sworn; 6, the introductory averments; 7, the falsity of the matter sworn; and, 8, the corrupt intention of the defendant. 2 Stark. Ev. 621, 2d ed.
Proof of the authority to administer an oath.] Where the oath has been administered by a master in chancery, surrogate or commissioner, having a general authority for that purpose, it is not *necessary [ *756 ] to prove his appointment; it being sufficient to show that he has acted in that character. See the cases cited, ante, p. 7, and p. 16. But as this evidence is only presumptive, it may be rebutted, and the defendant may show that there was no appointment, or that it was illegal. Thus after proof that the oath had been made before a person who acted as a surrogate, the defendant showed that he had not been appointed according to the canon, and was acquitted. Verelst's case, 3 Campb. 432. Where the party administering the oath derives his authority from a special commission, directed to him for that purpose, it is necessary to prove the authority, by the production and proof of the commission which
(1) The definition of Hawkins uses the words “in a course of justice,” which is more accurate than the phrase in the text “in a court of justice.”
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 coinmissioner 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 (6). 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 į 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 admiņister 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 rnay allege the oath to have been taken before one of the judges in the commission, though the names of both appear. Alford's case, I Leach, 150.
(1) State o. Hayward, 1 N. & M'C. 547, U. S. o. Bailey, 9 Peters, 238. Shaffer o. 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. (6) 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 (6).
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 51. 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 surelies of the peace ; before commissioners appointed by the king to inquire into the forfeiture of his tenants' estates, or com
(1) Resp. o. Goss & al., 2 Yeates, 479.