her a pension improperly, and thus defraud the government. necessary to prove this purpose or intent.1

It was

4. The district attorney offered in evidence, in succession, the three affidavits mentioned in the indictments, to the introduction of each of which the respondents objected on the ground of immateriality, and because it was not alleged or attempted to be proved that the justice of the peace before whom they were sworn to was qualified to take affidavits or administer oaths. To decide this point intelligently and correctly it is necessary to examine the statute on which these indictments are founded, and to ascertain its scope, meaning and intent. If "the false making" there mentioned be false swearing, and the offense be in the nature of perjury, then very clearly it should have been averred in the indictment that they were sworn to before a person competent to administer an oath, naming such person or court; but if the false making be forgery then it was not necessary to allege anything about the oath. The crime might have been completed without taking an oath at all. The signatures of the party and magistrate, and the jurat, might all have been forged and the offense completed the false making accomplished.

What, then, is this statute? What is the offense described in it? Is it perjury or forgery, or both? It is in these words: "That if any person or persons shall falsely make, alter, forge or counterfeit, or cause or procure to be falsely made, altered or counterfeited, or willingly aid or assist in the false making, altering, forgery or counterfeiting, any bond, bid, proposal, guaranty, security, official bond, public record, affidavit, or other writing, for the purpose of defrauding the United States," etc.

The indictments in this case seemed to have been framed upon the idea that the false making mentioned in the statute was in the nature of perjury, because, after reciting the affidavits, they go on to allege in what particulars they are false. But we are satisfied that it is not the true construction of the statute. A little analysis and attention to its language makes this quite apparent. It says, "if any person shall falsely make, alter, forge or counterfeit." Now, the arrangement and connection of these words, putting the "false making" with other apt words to describe forgery, to wit, altering, forging, counterfeiting, indicate its true intent and meaning that it is aimed at forgery and not at perjury. Again, "if any person shall falsely make, alter, forge or counterfeit any bond," bid, etc. Now, what is the false making of a bond or bid? Certainly not taking a false oath, because the execution of a bond or bid requires no oath. To falsely make an affidavit is one

1 Archb. 98; 1 Whart. 631.

SUBORNATION OF PERJURY-TESTIMONY TO BE GIVEN MUST BE FALSE-KNOWLEDGE.

UNITED STATES v. DENNEE.

[3 Woods, 39.]

In the United States Circuit Court, Louisiana, 1877.

An Indictment for Subornation of Perjury must aver that the testimony which the defendant instigated the witnesses to give was false, and that the defendants knew that the witness knew that the testimony which he was instigated to give was false.

This was an indictment for subornation of perjury in inducing Martha Knight to swear falsely before a United States commissioner in a suit pending in the Court of Claims between Harriet Mills and the United States. There was a demurrer to the indictment. Further facts appear in the opinion.

WOODS, J. The crime of subornation of perjury has several indispensable ingredients which must be charged in the indictment, or it will be fatally defective. 1. The testimony of the witness suborned must be false. 2. It must be given willfully and corruptly by the witness, knowing it to be false. 3. The suborner must know or believe that the testimony of the witness given, or about to be given will be false. 4. He must know or believe that the witness will willfully and corruptly testify to facts which he knows to be false.

A careful scrutiny of the counts of this indictment fails to reveal any averment that the defendants knew or believed that the testimony of the witness whom they are charged with suborning would be false, or that they knew it was false, or that they knew that the witness knew it was false, or that they knew that she would willfully and corruptly testify, or had willfully and corruptly testified, to facts as true, knowing them to be false.

To make a good indictment for subornation of perjury the false swearing must be set out with the same detail as an indictment for perjury, and the indictment must charge that the defendants procured the witness to testify knowing that the testimony would be false, and knowing that the witness knew that the testimony he had given, or was about to give, was false, and knowing that he would corruptly and willfully give false testimony. In the case of Commonwealth v. Douglass,1 the defendant was indicted for subornation of perjury. On the trial the court below instructed the jury that, "if it was proved to them beyond a reasonable doubt that the defendant, on the former trial for forgery

15 Metc. 244.

SUBORNATION OF PERJURY - REQUISITES OF CRIME.

UNITED STATES v. WILCOX.

[4 Blatchf. 393.]

In the United States Circuit Court, New York, 1859.

An Indictment for Subornation of perjury, under section 13 of the Act of March 3d, 1825,1 averred that the defendant did feloniously, knowingly, and willingly procure B. to swear falsely, in the taking of an oath, etc., but did not aver that B. knowingly and willingly swore falsely: Held, on demurrer, that the indictment was bad.

Indictment for subornation of perjury. The defendant demurred to the indictment. Further facts appear in the opinion of the court. HALL, J. The indictment contains twelve counts, but they are substantially in the same form, and the objections urged apply with equal force to all of them.

1. It was insisted, that the act of swearing falsely, as set forth in the indictment, is not a crime under the laws of the United States. This objection is, I think, well founded. The indictment alleges, that the defendant did feloniously, knowingly, and willingly procure David C. Besse and Wakeman R. Titus to swear falsely, in the taking of an oath, etc., but it does not allege that Besse and Titus, or either of them, did "knowingly and willingly swear or affirm falsely," in the taking of such oath; and, unless they did so, the case is not within the statute. The indictment alleges, that the defendant knew that the statement which Besse and Titus swore to was false, but it does not at all allege that they knew it to be false, or that they willingly, knowingly, or corruptly swore falsely. This is clearly a fatal defect.

2. It was, also, insisted, that the indictment does not show that the oath alleged to be false was taken in a case, matter, hearing, or proceeding where an oath or affirmation was required under any law of the United States, or that it was procured or made for the purpose of being used in any such proceeding. I am inclined to think that this objection also is well taken, but as the defect first noticed is clearly fatal, it is unnecessary to express any very decided opinion upon any other objection.

14 U. S. Stats. at Large, 118.

SUBORNATION OF PERJURY-TESTIMONY TO BE GIVEN MUST BE FALSE-KNOWLEDGE.

UNITED STATES v. DENNEE.

[3 Woods, 39.]

In the United States Circuit Court, Louisiana, 1877.

An Indictment for Subornation of Perjury must aver that the testimony which the defendant instigated the witnesses to give was false, and that the defendants knew that the witness knew that the testimony which he was instigated to give was false.

This was an indictment for subornation of perjury in inducing Martha Knight to swear falsely before a United States commissioner in a suit pending in the Court of Claims between Harriet Mills and the United States. There was a demurrer to the indictment. Further facts appear in the opinion.

WOODS, J. The crime of subornation of perjury has several indispensable ingredients which must be charged in the indictment, or it will be fatally defective. 1. The testimony of the witness suborned must be false. 2. It must be given willfully and corruptly by the witness, knowing it to be false. 3. The suborner must know or believe that the testimony of the witness given, or about to be given will be false. 4. He must know or believe that the witness will willfully and corruptly testify to facts which he knows to be false.

A careful scrutiny of the counts of this indictment fails to reveal any averment that the defendants knew or believed that the testimony of the witness whom they are charged with suborning would be false, or that they knew it was false, or that they knew that the witness knew it was false, or that they knew that she would willfully and corruptly testify, or had willfully and corruptly testified, to facts as true, knowing them to be false.

To make a good indictment for subornation of perjury the false swearing must be set out with the same detail as an indictment for perjury, and the indictment must charge that the defendants procured the witness to testify knowing that the testimony would be false, and knowing that the witness knew that the testimony he had given, or was about to give, was false, and knowing that he would corruptly and willfully give false testimony. In the case of Commonwealth v. Douglass,1 the defendant was indicted for subornation of perjury. On the trial the court below instructed the jury that, "if it was proved to them beyond a reasonable doubt that the defendant, on the former trial for forgery

1 5 Metc. 244.

(referred to in the indictment), put Fanny Crossman on the stand, or caused her to be put on the stand, as a witness, knowing that she would testify as set forth in the indictment, and intending that she should so testify, and he put her on the stand, or caused her to be put on the stand, for the purpose of her so testifying, and she did so testify, and such testimony was false, and he knew when he put her on the stand that, if she did so testify, her testimony would be false, it would be sufficient to prove that part of the indictment which alleged that defendant suborned Fanny Crossman to commit perjury as set forth in the indictment."

This charge was assigned for error, and the Supreme Judicial Court, in passing upon it, said: "The remaining exception to the charge of the presiding judge is of more importance, and is, we think, well founded. The jury were instructed that, if certain facts stated in the exceptions were proved beyond reasonable doubt, it would be sufficient proof of that part of the indictment which charged that the defendant suborned Fanny Crossman to commit perjury. Now we are of opinion that all these facts might exist, and yet the defendant might not be guilty of the crime charged in the indictment. The defendant might know or believe for he could not know with certainty that the witness whom he called would testify as she did, and he might know that her testimony would be false; but if he did not know that she would willfully testify to a fact knowing it to be false, he could not be convicted of the crime charged. If he did not know or believe that the witness intended to commit the crime of perjury, he could not be guilty of the crime of suborning her. To constitute perjury the witness must willfully testify falsely, knowing the testimony given to be false. A witness, by mistake or defect of memory, may testify untruly without being guilty of perjury or any other crime.

Subornation of perjury is in its essence but a particular form of perjury itself.2

Tested by these authorities, both counts of the indictment are bad, first, because they do not aver that the defendants knew that the testimony which they instigated the witnesses to give was false, and second, because there is no averment that the defendants knew that the witness knew that the testimony she was instigated to give was false.

Demurrer sustained.

11 Hawk., ch. 69, sec. 2; Bac. Ab., Perjury, A; 2 Russ. on Cr. 1753.

22 Bish. Cr. L., sec. 1197. See, also, Whart. Prec. of Indict. pp. 598, 599, forms c

and d; see, also, form of indictment in Archb. Cr. Pl, & Ev., 575, 577; see same form, 2 Bish. Cr. Proc., sec. 878; State v. Carland, 3 Dev. (L.) 114.