time, during his transactions with the victualling office, charge more than the usual sum per quarter, beyond the price he actually paid for any grain purchased by him for the said commissioners as their cornfactor," and this assertion be contradicted by an averment that " he did charge more than the usual sum per quarter, for and in respect of such malt or grain," the indictment will not be vitiated by the introduction of the words," and in respect of," Rex. v. Atkinson. Cro. C. A. 437 to 451. Bac. Abr. Perjury, [*312] C. Saund. 249. a. note 1. S. C. If there be several assignments of perjury in one count it will suffice to prove one of them, and though some be bad, judgment will be given for the crown, on the sufficient assignments, 2 Ld. Raym. 886. 2 Campb. 138, 9. Cro. C. C. 7 Ed. 622. The truth of the defendant's oath is usually negatived in different ways, see forms post, 319, &c. and when the defendant swears only to belief it may be proper to aver, "that he well knew," the contrary of what he swore, as in 4 Wentw. 231, and post, 320*. Evidence. After the perjury has been assigned, the indictment usually concludes, "that so the defendant did commit wilful and corrupt perjury," 2 Leach, 860. Starkie, 195; but it should seem that this conclusion of law from the premises is immaterial, see 2 Leach, 856. ante 1 vol. 232. The court will, in general, refuse to quash an indictment for perjury, however defective, and compel the defendant either to plead or demur, Hawk. b. 2. c. 25. s. Nor will they grant a certiorari to remove it, unless strong ground be shown for the application, Hawk. b. 2. c. 27. s. 28.— And the lord chancellor will not grant leave to amend an answer in Chancery, where an indictment for perjury is even threatened, though the party, having no interest, could not be supposed to make the false oath with a corrupt design, 1 Brown, Ch. Rep. 146. 419. EVIDENCE. In perjury, the accusation must be proved by two witnesses, 10 Mod. 194. 2 Stra. 1230. 13 Ves. J. 134. 2 Bridgman, Index 395. ante 1 vol. 562, 3. because if a person could be found guilty on the testimony of a single witness, there would only be one oath against another, 4 Bla. Com. 358; but see ante 1 vol. 562, 3. When the perjury is set out continuously, it must be proved accordingly, although the count contains several distinct assignments of perjury, 2 Campb. 134. And it has been holden that the prosecutor must prove the whole of the defen dant's evidence, because he might in one part have corrected any mistake made in another, though when the perjury was committed, on a cross-examination respecting a fact, not connected with the general merits of the case, proof of all the cross-examination will suffice, Peake, 37. 170. But it should seem that this doctrine of compelling the prosecutor to prove more than a prima facie, establishes the defendant's guilt, in an anomaly in the criminal law, for, in general, the party indicting is not bound to anticipate matters of defence, which it lies on the prisoner to bring forward; we have, therefore, seen that it is not necessary to negative the exceptions in a distinct section of a statute, or to aver that the defendant had no excuse for the breach of any positive duty. Nor does it seem that, in this case, the party indicted would sustain hardship in being compelled to shew that he had corrected the part of his evidence assigned, as was done in 1 Sid. 418. In an indictment for perjury, in answer to a bill in chan- [*313] cery, it is sufficient evidence of the identity of the prisoner with the party who actually took the oath in question, if his hand-writing be proved, as well as that of the master, before whom the answer was sworn, 2 Burr. 1189. 1 Leach, 50; for if this were not taken to be sufficient it would be extremely difficult to prove any judicial proceedings, 2 Campb. 509. (as to the proof of identity, see also 1 Leach, 327.) It is also sufficient to prove, in the first instance, that the person before whom the oath was taken, acted in the capacity of an officer, to raise a presumption that he had competent authority to receive it, for it is the general presumption of law, that an individual acting in a public capacity is duly authorized so to do, 3 Campb. 433. 4 T. R. 366; but the defendant is at liberty to rebut this prima facie inference, by positive testimony that the appointment was defective; and if he succeed in so doing, he will be entitled to an acquittal, 3 Campb. 435. On an indictment at common law for perjury, in an affidavit sworn before the court of K. B., it is not necessary to prove that the affidavit was filed or exhibited, or in any manner used by the party, 7 T. R. 315. PUNISHMENT.-See ante 1 vol. Index, tit. perjury. The pu- Punishnishment for perjury at common law, is fine, imprisonment, and ment. pillory, at the discretion of the court, before whom the offender is convicted. It was anciently capital, afterwards banishment or cutting out of the tongue, 4 Harg. St. Tr. 103. the last of which penalties is one of the few instances of characteristic punishments which have been somewhat fancifully recommended by an ingenious modern writer. Instances, where this offence has been visited with very great severity, are to be found in times comparatively recent. Of these the judgment upon Titus Oates is the most remarkable. He was sentenced to pay a fine of 2000 marks-to be whipped from Aldgate to Newgate, and from Newgate to Tyburn, to be imprisoned for life, and to stand four times every year in the pillory, 4 Harg. St. Tr. 105, 6. But this judgment was declared to be unjust and illegal, and Oates was pardoned the residue of his punishment, 7 Harg. St. Tr. 455, 8 id. 476. When perjury has for its object the destruction of the life of another, it is a crime of as deep a dye as the most aggravated murder; for it aims not only to take away the life of its victim, but to cause his whole property to be forfeited, and his character to be covered with infamy. But the reason why, in this country, a capital punishment is not inflicted on a criminal stained with guilt so enormous, may be, that its denunciation would overawe and terrify witnesses, however honest, and restrain them from giving evidence in those cases where it is most needed, 4 Bla. Com. 96. [*314] In addition, however, to the penalties of fine, imprisonment, * and pillory, which, in their discretion, the judges have always been authorized to inflict, the 2 Geo. II. c. 25, enables them to order the offender to be sent to the house of correction for a term not exceeding seven years, or to be transported for the same period, and makes it felony, without benefit of clergy, in the convict to escape or return within the time to which his sentence extends. At the present day, as the punishment is thus discretionary, it necessarily varies according to the shades of atrocity with which each individual case is distinguished. There is another circumstance which attends all convictions for perjury, though it forms. no part of the judgment at common law; the incapacity of the offender to bear testimony as a witness. See ante 1 vol. 599*, 600*. When the indictment is framed at common law, a pardon under the great seal restores the competency which the conviction destroyed, 1 Vent. 349. 4 Harg. St. Tr. 682. 1 Esp. R. 94. But where the proceedings are grounded on 5 Eliz. c. 9. this cannot be done without a reversal of the judgment, because it is here made a part of the punishment prescribed, 1 Salk. 289. 5 Esp. Rep. 94. ante 1 vol. 601*, 2*. (1) II. PERJURY ON STATUTE, 5 ELIZABETH, c. 9. Offence. The 5 Eliz. c. 9. s. 6. after directing the punishment Offence of for subornation, (see post, 317*, 8*,) enacts, that if any person or perjury, under 5 persons "wilfully and corruptly commit any manner of wilful per- Eliz. c. 9. jury, by his or their deposition, in any of the king's courts therein before mentioned, viz. of Chancery, Whitehall, or elsewhere within any of the king's dominions of England or Wales, or the marches of the same, where any person or persons shall have authority by virtue of the king's commission patent, or writ to hold plea of land, or to examine, hear, or determine any title of lands or any matter or witnesses concerning the title, right, or interest of any lands or tenements or hereditaments, or in any of the king's courts of record, or in any leet, view, of frank pledge or law-day, ancient demesne court, hundred court, court baron, or in any court or courts of the stannary in the counties of Devon or Cornwall, or being examined ad perpetuam rei memoriam ; every such offender shall forfeit twenty pounds, half to the party aggrieved, and have imprisonment by the space of six months, without bail or mainprize; and the oath of such offender shall not from thenceforth be received in any court of record in England or Wales, until such judgment shall be reversed, &c. on which reversal the party grieved *shall recover damages against the party who did [*315] procure the said judgment so reversed to be first given.” (2) In (1) [By the laws of the several states, perjury is punished by fine, imprisonment, &c. &c. In Pennsylvania, it has been decided that persons convicted of perjury are liable to fine and imprisonment at hard labour, but not to any particular kind of treatment, as to diet or discipline. A sentence which adjudged the convict to be confined, fed, cloathed, and treated as the laws direct, is erroneous. 3 Binney Rep. 577.] (2) [By an act of Congress passed April 30, 1790, it is provided that, "If any person shall wilfully and the construction of this statute it has been laid down, that no one can be guilty of perjury within its meaning, who might not be guilty of subornation of perjury under its provisions; because it punishes the latter offence with greater severity than the former, and, therefore, could not intend to enlarge the purview as to what it treats as the smaller offence, beyond its scope with respect to the latter. And, therefore, as under this act, subornation can only be committed in " matters depending in suit by writ, action, bill, plaint, or information, in any wise concerning lands, tenements, or hereditaments, or goods, chattels, debts, damages, &c." the commission of perjury itself comes under the same restric tion, 5 Co. 99. a. And, on this ground, it is easy to account for the decision in Price's case, Cro. Jac. 120. where it is said generally, that no indictment will lie against a witness for the crown, for any thing he may depose, because the king cannot prosecute his own witness; for that was the case of an information on the statute for some thing sworn on an indictment, and the position in its broadest sense, can never for a moment be supported, Hawk. b. 1. c. 69. s. 19. And as the clause in the statute respecting perjury committed by persons in their examinations ad perpetuam rei memoriam, or in their depositions in some of the courts there mentioned, is taken to relate only to the oath of a witness; and, therefore, no one can be indicted under this statute for perjury committed in an answer in chancery, in exhibiting articles of peace, in a presentment made as a homager of a court baron, or in waging law, or making oath before commissioners appointed to investigate title, 3 Inst. 166. 2 Rol. Abr. 77. Hawk. b. 1. c. 69. s. 20. It seems also questionable whether any affidavit in a court of justice, or deposition before the sheriff, on a writ of enquiry, can be made the subject of prosecution under this statute, Hawk. b. 1. c. 69. s. 21. There is also this distinction between perjury at common law and upon this act, that the former may be brought though the perjury is at once detected, and does not succeed in injuring any individual, but no indictment can be sustained for the latter, unless some one was actually aggrieved by the offence, 3 Inst. 166, 167. It is, therefore, much stand in the pillory one hour, and be thereafter rendered incapable of giving testimony in any of the courts of the United States, until such time as the judgment so given shall be reversed. Laws U. S. vol. 2. page 96.] |