If the same person swears contrarily at different times, it should be averred on which occasion he swore wilfully, falsely, or corruptly. (s) The matter falsely sworn to need not be prefaced by words requiring an exact recital; but it should rather be "in substance and to the effect following; "(t) or, "in manner and form following, that is to say," which allows greater latitude. (u) But accuracy is requisite in what is set out. (v) Thus if a word were accidentally omitted in an affidavit, it must not be supplied as if sworn, but must be explained by an innuendo.(w) Where perjury is assigned upon several parts of an affidavit, those parts must be set out as if continuous, though in fact separated by other matter. (x) If any use is made of an innuendo which is imperfect, it cannot be rejected as surplusage, nor will it be cured by verdict; but where the innuendo and the matter which it introduces are altogether impertinent and immaterial, it may be rejected.(y) An innuendo is defined to be a mode of explaining some matter already expressed. It serves to point out where there is precedent matter, but can never introduce a new charge. It may elucidate what is already averred, but cannot add to, enlarge, or alter its sense.(z) The indictment must expressly contradict the matter falsely sworn to by the defendant. And a general averment that the defendant falsely swore, &c. upon the whole matter, is not sufficient; but the indictment must proceed by particular averments to negative that which is false. (a) And where an indictment for perjury committed in the insolvent debtors' court alleged that the defendant falsely, &c. swore that his schedule contained a full, true and perfect account of all debts owing to him, whereas in truth the schedule did not contain," &c. without specifying any debts omitted, it was held that this indictment was bad. (b) If there are several assignments of perjury in one count, it will suffice to prove one of them, and though some be bad, judgment will be given against the defendant on the sufficient assignments.(c) Where the defendant has sworn only to belief, it may be proper to aver that he well knew the contrary of what he swore. (d) Two defendants cannot be joined in an indictment for perjury.(e) (8) 5 Barn. & Adol. 926. 1 Dowl. & Ryl. 578. Cro. Clr. Comp. 404. (z) 2 Chit. Cr. L. 310. 2 Salk. 513. (t) Cro. Cir. Comp. 404. 2 Camp. 138. 385. 1 Car. & P. 608. 1 T. R. 70. (b) 1 Ry. & Moo. N. P. Rep. 210. 5 Wend. 10, 271. (c) 2 Chit. Cr. L. 311. (d) Id. ib. Matth. Dig. 343. (e) 2 Yeates, 479. 2 Str. 921. 2 Burr. 985. Evidence.] All such introductory parts of the indictment as cannot be rejected as surplusage, must be proved in substance as laid; and, generally, the evidence of one witness is not sufficient to convict for perjury, for that would be only oath against oath.(f) But one witness and circumstances strongly corroborative are enough, though the circumstances are not in themselves sufficient to prove a fact.(g) Evidence merely probable, however, is not sufficient. It must be strong and clear and the witnesses must be more numerous, or the weight of testimony greater for the prosecution than for the defence.(h) But where the evidence consists of the contradictory oaths(i) or declarations(k) of the party accused, this rule does not apply. This strong proof seems to be required not only as to the falsity of the oath, but as to the facts sworn to.(1) Documents and collateral circumstances often stand in the place of witnesses for the purpose of proving the contradictory statements of the defendant. Thus, to prove perjury, it is sufficient if the matter alleged to have been falsely sworn be disproved by one witness, if in addition to his testimony there is proof of an account or letter written by the defendant contradicting his statements on oath. (m) The party injured by the perjury is, it seems, a competent witness to prove the perjury.(n) And if a party is indicted separately for perjury with others, in swearing to the same fact, either of them, before conviction, may be a witness on the trial of the other.(0) If the false matter sworn is in writing, it must be produced, or sufficiently accounted for, as in other cases. Where perjury is assigned upon an answer to a bill in equity, it is sufficient after producing the bill or a copy of it,(p) to produce the answer, and prove either that the defendant was sworn to it, or that the signature to it is the defendant's hand-writing, and that the name subscribed to the jurat is the name and hand-writing of a master or other person having authority for that purpose.(g) And the same as to depositions in equity, and other similar cases, so as at least to throw upon the defendant the burden of proving that he was personated.(r) And it is necessary to prove, in substance, the whole of what is set out in the indictment as having been sworn to by the defendant. Proving a (f) 2 Russ. on Cr. 545. 2 Chit. Cr. L. 312. (E) 6 Cowen, 118. 1 Nott & McCord, 546. 2 Chit. Cr. L. 312, note (A). (h) 10 Mod. 194. 2 Str. 1229. (i) 2 Russ. on Cr. 545. 2 Chit. Cr. L. 312. 5 Barn. & Ald. 929, n. (k) 1 Dev. Law Rep. 263. 6 Cowen, (1) 4 McCord, 159. (m) Crown Cir. Comp. 405. 6 Car. & P. 315. (n) 2 Russ. on Cr. 546. (0) 2 Chit. Cr. L. 312, c. 2 Hale, 280 (4) 2 Burr. 1189. 2 Camp. 508. part only, it seems, is not sufficient. (s) Also it must be proved literally or substantially as set out. (t) Any variance in substance between the indictment and evidence in this respect will be fatal.(u) To prove that the person who administered the oath had authority to do so, it is merely necessary to show that he performed the duties of a certain office, without showing his appointment; (v) and, (if the court will not judicially notice it,) that the person lawfully exercising the duties of that office has authority to administer an oath in such a case.(w) But the defendant is at liberty to rebut this prima facie evidence, by positive testimony that the appointment was defective; and if he succeed in so doing, he will be entitled to an acquittal.(x) A variance in stating the occasion of the making of the oath would be fatal.(y) As the perjury assigned must be material to the matter in question, so the materiality of the perjury must be proved.(z) But where the matters assigned as perjury consist of several particulars, some of which are material and others not, the court will distinguish between the material and, immaterial; and if any one particular be disproved, to which the perjury is alleged to relate, if the charge would remain entire and constitute perjury, without such proof, the court will not consider it to be a variance.(a) The corrupt intention must also be proved; but this is prima facie shown by proving the falsity of the oath; and if the perjury was occasioned by surprise or inadvertency, or by mistake of the true state of the question, this is for the defendant to show.(b) In a prosecution for perjury, proof of the general bad character of the defendant for truth and veracity is inadmissible. (c) Subornation of perjury.] Subornation of perjury, at common law, is the procuring another to commit legal perjury, who in consequence of the persuasion takes the oath to which he has been incited.(d) To render the offence of subornation of perjury complete, either at common law or on the statute, the false oath must be actually taken. And no abortive attempt to induce perjury will bring the offender within the penalties of subornation of perjury.(e) But the criminal solicitation to commit perjury, though unsuccessful, is a misdemeanor at common law. (f) Under the revised statutes, it is a felony, and punishable more severely. Those statutes provide that subornation of perjury shall be punishable, in the same manner as perjury ;(g) and that the mere attempt to suborn a witness shall be punishable with imprisonment for not less than five years.(h) And procuring any person to swear falsely at an election, in taking the election oath, is also declared to be subornation of perjury.(i) Indictment.] It does not seem necessary to set forth the means used by the defendant to effect his design. At common law, it is said to be sufficient to state that he, "by sinister and unlawful labors and means," procured the commission of the perjury.(k) Our statute, in defining the offence where the oath is actually taken, uses the words "unlawfully and corruptly," and "by any means whatsoever," &c. An indictment under this section should probably contain the words "unlawfully and corruptly," but the means used need not be stated. But the section respecting attempts to induce perjury contemplates the offering of some "valuable consideration" to the witness; and it therefore seems necessary that an indictment for this offence should either contain those words, generally, or specify the particular thing offered, and aver that it was valuable. Evidence.] In support of an indictment for subornation, the record of the witness' conviction for perjury is no evidence against the suborners; but the offence of the perjured witness must be again regularly proved.(l) 2. BRIBERY AND CORRUPTION. Bribery is the receiving or offering any undue reward by or to any person whose ordinary profession or business relates to the administration of public justice; in order to influence his behavior in office, and incline him to act contrary to the known rules of honesty and integrity.(m) And it seems that, at common law, this offence may be committed by any person in an official situation who shall corruptly use the power or interest of his place for rewards or promises. (n) And bribery sometimes signifies the taking or giving of a reward for offices of a public nature. (0) (e) 3 Mod. 122. 1 Leach, 455, notes. f) 2 East's Rep. 17. 6 id. 464. 1 Hawk. c. 19, s. 10. (g) 2 R. S. 681, §§ 3, 4. (h) Id. 682, § 8. (i) I id. 149. (k) 2 Ld. Raym. 886. 2 Leach, 796. (1) 1 Leach, 455. Roscoe's Cr. Ev. 691. 2 Chit. Cr. L. 318. (m) 3 Inst. 149. 4 Black. Com. 139 1 Russ. on Cr. 155. (n) 1 Russ. on Cr. 156. This species of bribery will be noticed hereafter under the head of "Buying and selling offices." Attempting to influence an elector, in giving his vote, or to deter him from giving it, is also bribery at common law as well as by statute.(p) And the attempt to influence jurymen, by gifts or promises, is also a species of bribery.(q) And attempts to bribe, though unsuccessful, have in several cases been held to be criminal.(r) By the revised statutes every person who shall promise, offer, or give to the governor, lieutenant governer, or to any member of the legislature, after his election, and either before or after he shall have been qualified; to any commissioner of the land office, canal fund or canal commissioner, to the comptroller, surveyor general, secretary of state, or attorney general; to any judge of a court of record, or any judicial officer-any money, goods, &c. with intent to influence his vote, opinion, or judgment, on any question brought before him in his official capacity, shall, upon conviction, be imprisoned in a state prison not exceeding ten years, or be fined not exceeding $5000, or both. (s) Every officer above mentioned, who shall accept any such gift or promise, &c. under any agreement that his vote, &c. shall be given in a particular manner, &c. shall, on conviction, be forever disqualified from holding any public office, trust, or appointment, under the constitution of this state, forfeit his office and be subject to the same punishment as above prescribed for the offence of offering a bribe.(t) And if any person shall by bribery, menace, or other corrupt means or device, attempt to influence any elector in giving his vote, or to deter him from giving the same, at any election, he shall, on conviction, be adjudged guilty of a misdemeanor, and be fined not more than $500, or imprisoned not more than one year.(u) Jurors, arbitrators, and referees, who shall take any thing to give their verdict, award, or report; or shall receive any gift or gratuity from any party to the suit, &c. in which they are drawn, chosen, or appointed— are punishable by imprisonment in a state prison not more than five years, in a county jail not more than one year, or by a fine not exceeding $1000, or both.(v) Corrupting, or attempting to corrupt jurors, referees, or arbitrators, by giving or offering to give any gift, or gratuity, with intent to bias their (p) 3 Burr. 1338. 1 Russ. on Cr. 156. (q) 1 Russ. 156. (r) Id. ib. 3 Inst. 147. 2 East's P. C. 5. (s) 2 R. S. 682, § 9. |