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Entire record should be proved, XIII. FABRICATION OF EVIDENCE, §

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§ 1244. PERJURY, as the offence, modified by statute, is now generally defined, is the corrupt assertion of a falsehood, Definition. under oath, or affirmation, and by legal authority, for

the purpose of influencing the course of law. Or, to give a definition drawn from the older common law authorities, it is the wilful assertion as to a matter of fact, opinion, belief, or knowledge, made by a witness in a judicial proceeding as part of his evidence, either upon oath or in any form allowed by law to be substituted for an oath, whether such evidence is given in open court, or in an affidavit, or otherwise, such assertion being known to such witness to be false, and being intended by him to mislead the court, jury, or person holding the proceeding. Perjury is at common law a misdemeanor.2

1 This definition is substantially that given by the English Commissioners in their draft report made in 1879, and to sustain it may be cited: 1 Hawk. c. 69, s. 1; 3 Inst. 164; Bac. Ab. tit. "Perjury;" Burn's Justice, tit. "Perjury;" Step. Dig. C. L. art. 135; 2 Russ. on Cr. 5th Am. ed. 596; State v. Tappan, 1 Foster, 56; Pickering's Case, 8 Grat. 628; State v. Brown, 79 N. C. 642; State v. Dodd, 3 Murph. 226; State v. Ammon, 3 Murph. 123;

Martin v. Miller, 4 Mo. 47; Pankey v. People, 1 Scam. 80; De Bernie v. State, 19 Ala. 23; Jackson v. State, 1 Carter (Ind.), 184; McGregor v. State, Ibid. 232; People v. Collier, 1 Mich. 137; Nelson v. State, 32 Ark. 193.

23 Inst. 163-5; R. v. Johnson, 2 Show. 1; Steph. C. L. note vii. In R. v. Hodgkiss, L. R. 1 C. C. 212, Kelly, C. B., held that false statutory affidavits made as a prerequisite to obtaining a legal status, as distinguished from false

And false swearing, when not technically perjury, may nevertheless be at common law indictable as an independent misdemeanor, when the oath is taken to affect a juridical right.1

Offence must be

I. WILFUL.

1245. The offence consists in swearing falsely and corruptly, without probable cause of belief; not in swearing rashly or inconsiderately, according to belief. The false oath, wilful. if taken from inadvertence or mistake, cannot amount to voluntary and corrupt perjury. Therefore, where perjury is assigned on an answer in equity, or on an affidavit, etc., the part on which the perjury is assigned may be shown to be inadvertent by another part, or even by a subsequent answer.

That the oath is wilful and corrupt must not only be charged in the indictment, but be supported on trial. An oath is wilful when taken with deliberation, and not through surprise or confusion, or a bona fide mistake as to the facts, in which latter cases perjury does not lie."

oaths in court, are not "perjury," and the court consequently struck out from the indictment the averments of perjury, and sentenced for a misdemeanor at common law. But in this country such false statutory oaths are commonly treated as perjury. Infra, § 1270.

1 R. v. Chapman, 1 Den. C. C. 432; T. & M. 90; R. v. Hodgkiss, L. R. 1 C. C. 212. See R. v. O'Brian, 2 Stra. 1143; R. v. De Beauvoir, 7 C. & P. 17; and cases cited infra, §§ 1271, 1274.

4 1 Sid. 419; Com. Dig. Jus. of Peace (B.), 102.

Supra, § 89, and cases there cited. R. v. Stephens, 5 B. & C. 246 ; U. S. v. Moore, 2 Low. 232; Resp. v. Newell, 3 Yeates, 407; Thomas v. Com., 2 Rob. (Va.) 795; Com. v. Cook, 1 Ibid. 729; State v. Garland, 3 Dev. 114; Green v. State, 41 Ala. 419; Miller v. State, 15 Fla. 577; Cothran v. State, 39 Miss. 541. See as to indictment, infra, § 1286.

6 U. S. v. Shellmire, 1 Bald. 370; Com. v. Brady, 5 Gray, 78; Case v.

2 See infra, § 1246; U. S. v. Pass- People, 6 Abb. (N. Y.) N. C. 151; 76 more, 4 Dall. 372.

3 1 Hawk. c. 69, s. 2; 2 Russ. on Cr. 9th Am. ed. 3 et seq. See remarks on this point in Steinman v. M'Williams, 6 Barr, 170.

118

N. Y. 220 (infra, § 1257); Com. v. Cor-
nish, 6 Binn. 249; Com. v. Cook, 1
Rob. (Va.) 729. See R. v. Muscot, 10
Mod. 192; R. v. Moreau, 11 Q. B. 1028;
Steinman v. M'Williams, 6 Barr, 178.

II. FALSE AND CORRUPT.

2

is know

§ 1246. It is perjury where one swears wilfully and corruptly to a matter which he, according to his own lights, has no probable cause for believing,' since a man is guilty of "Falsely" perjury if he knowingly and wilfully swears to a par- ingly af firming ticular fact, without knowing at the time that the asser- without probable. tion is true, supposing that his purpose is corrupt. cause. Hence it is held a good assignment of perjury that the defendant swore that he "thought" or "believed" a certain fact, whereas in truth and fact he "thought" or "believed" the contrary, and had no probable grounds for what he swore. Nor is it a defence that the fact to be inferred is true, if the defendant swear corruptly to false circumstances as a basis for inference.

1 Ibid.

2 R. v. Edwards, 3 Russ. on Cr. 1; U. S. v. Neale, 14 Fed. Rep. 767; Com. v. Halstat, 2 Bost. Law. Rep. 177; State v. Gates, 17 N. H. 373.

Per Lord Mansfield, in R. v. Pedley, 1 Leach, 327; R. v. Schlesinger, 10 Q. B. 670; State v. Knox, Phil. (N. C.) L. 312; though see 2 Russ. on Cr. 9th Am. ed. 527; 1 Sid. 419; U. S. v. Shellmire, 1 Bald. 370; U. S. v. Atkins, 1 Sprague, 558; 19 Law Rep. 95, explained by Lowell, J., in U. S. v. Moore, 2 Low. 232. Infra, § 1250. For other cases see supra, § 80.

In Lambert v. People, 76 N. Y. 220, 6 Abb. New Cas. 181, an affidavit, appended to a statement by a life insurance company, stated that deponents were the officers of the company, "and on the 31st of December last all the above described assets were the absolute property of the company, free and clear from any liens or claims, except as above stated; that the foregoing statement, with the schedules and explanations hereunto annexed and by them subscribed, are a full and correct exhibit of all liabilities, on the said 31st day of December last,

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with the year ending on that day, according to the best of their knowledge, information, and belief respectively." It was held by a majority of the court, that all the statements contained in the affidavit were on information and belief, as well as those preceding the semicolon as those after it. Perjury, it was said, "can only be imputed upon full knowledge of the falsity, and cannot be predicated where wilfulness, corruption, and malice are not manifest. A possible conception, or a mistake in swearing to the construction of a written instrument, is not enough to warrant a conviction of perjury. R. v. Crespigny, 1 Esp. 280; U. S. v. Conner, 3 McLean, 573; U. S. v. Stanley, 6 Ibid. 409; 3 Whart. C. L. (7th ed.), §§ 2199, 2200; Steinman v. M'Williams, 6 Penn. St. 170, 178. There is no fair inference that the accused intended to swear unqualifiedly as to the portion preceding the semicolon, and otherwise as to the remainder." See abstract in 19 Alb. L. J. 200; and see infra, §§ 1247, 1283.

1 Hawk. c. 69, s. 6; 3 Inst. 166; Palmer, 294. Infra, § 1302. In an action on a contract before a justice of

instance, if a man swear that J. N. revoked his will in his presence, though he really had revoked it, it is perjury if it were unknown to the witness that he had done so. And it is perjury for a person knowingly and corruptly to swear that he is ignorant of a particular fact of which he is cognizant,2 or cognizant of a fact of which he is ignorant.3

Probable cause is to be estimated from

§ 1247. It has just been seen that falsity consists in knowingly affirming a condition without probable cause. But what is probable cause? Here we must again accept a position so often vindicated in these pages, that probable defendant's cause must be estimated, not from the jury's standpoint, standpoint. nor from the judge's, but from the defendant's. On the one hand, the fact sworn to may have been true, but if the defendant swore to it wilfully and corruptly, not knowing it to be true, or not having probable cause, according to his own lights, for believing it to be true, he is guilty, as stated in the last section, of perjury. On the other hand, if he swore honestly to a fact or belief, with probable cause, according to his own lights, to the best of his belief, he is not guilty of perjury, though his oath was really untrue.5 § 1248. Hence it is admissible to prove reception of such information by the defendant as gave him probable ground for his oath. A witness stating evidence truly to the writer of an affidavit, and swearing to it when drawn up, is not guilty of perjury if the statements are written representa erroneously by the amanuensis. Upon an indictment against the defendant for a misdemeanor in falsely swearing that he bona fide had such an estate in law or equity

Admissible to prove a mistake of fact in

duced by

erroneous

tions of

others.

the peace,
the making of the contract
was in issue. A witness testified that
he went to a field with the parties to
the contract, no other persons than
the parties and himself being present,
and that he heard the contract agreed
to by the parties. In point of fact he
did not go to the field, was not present
when the contract was made, and had
no knowledge of the making. The
contract was made, nevertheless; but
it was held that the prisoner, having
wilfully sworn to a thing he did not
know to be true, although it was true,

was guilty of perjury. People v. McKinney, 3 Parker C. R. 510.

Hetley, 97.

Wilson v. Nations, 5 Yerg. 211. See U. S. v. Atkins, 1 Sprague, 558.

State v. Gates, 17 N. H. 373; State v. Knox, Phillips, N. C. L. 312.

4 See Com. v. Cook, 1 Rob. (Va.) 729; Jesse v. State, 20 Ga. 156.

R. v. De Beauvoir, 7 C. & P. 17; R. v. Moreau, 11 Q. B. 1028; Com. v. Brady, 5 Gray, 78; Smith v. Myers, 41 Md. 425; Flemister v. State, 48 Ga. 170. Jesse v. State, 20 Ga. 156.

of the annual value of £300 above reprises, as qualified him to be a member of parliament for a borough, a surveyor stated that the fair annual value of the property was about £200 a year, but another witness stated that it was badly let, and that he believed it was worth more than £300 a year, and that he told the defendant so, and that he did not think that the defendant had any reason to believe that the qualification in point of value was not sufficient. It was held that the jury must be satisfied beyond all doubt that the property was not of the value of £300 a year, and that at the time the defendant made the statement he knew that it was not of that value.1

And so

when ad

vised by

counsel.

§ 1249. An honest oath taken under advice of counsel, therefore, is not perjury. Thus a bankrupt who submits the facts in regard to his property fairly to the advice of his counsel, and acting under the advice thus given withholds certain items from his schedule, is not guilty of perjury; the fraudulent intent being wanting. Nor is it perjury when a party swears erroneously to a written statement which his counsel tells him is substantially correct.1

General

evil intent stitute cor

may con

ruption.

§ 1250. It has been already seen that where there is a general intent to do mischief, and a specific overt act follows in causal connection with such general intent, then the general intent applies to the specific act, so as to complete the offence. Hence it is perjury if a witness, from general recklessness and a depraved determination to hurt, fall the consequences where they may, swears knowingly to a falsehood. Even a drunkard, swearing falsely, may be convicted of perjury, if his intent in rendering his testimony were evil, though his conception of what he was doing was not exact; and in fact if we require proof of the exact perception of the falsification to convict of perjury, there would be few convictions of perjury, since there are few cases of perjury in which such an exact conception 1

1 R. v. De Beauvoir, 7 C. & P. 17— Lord Denman, C. J.

2 U. S. v. Stanley, 6 McLean, 409; State v. McKinney, 42 Iowa, 205. As to advice of counsel in other matters, see supra, § 85 b; Jesse v. State, 20 Ga. 169; Hood v. State, 44 Ala. 81.

3 U. S. v. Conner, 3 McLean, 573.
See U. S. v. Dickey, 1 Morris, 412.
4U. S. v. Stanley, ut sup.

See supra, §§ 101 et seq.
People v. Willey, 2 Park. C. R. 19.
See, for other cases, supra, § 53.

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