The provisions of this dictments. "Court, or person or persons to have a competent authority to "administer the same) together with the proper averment or "averments to falsify the matter or matters, wherein the perjury "or perjuries is or are assigned, without setting forth the bill, answer, information, indictment, declaration, or any part of any "record or proceeding, either in law or in equity, other than as "aforesaid; and without setting forth the commission or autho"rity of the Court, or person or persons before whom the perjury was committed." And the second section enacts, "that in "every information or indictment for subornation of perjury, or "for corrupt bargaining or contracting with others to commit "wilful and corrupt perjury, it shall be sufficient to set forth the "substance of the offence charged upon the defendant, without "setting forth the bill, answer, information, indictment, declara"tion, or any part of any record or proceeding, either in law or "equity, and without setting forth the commission or authority "of the Court, or person or persons before whom the perjury was "committed, or was agreed or promised to be committed." It was lamented by a very great Judge, that the party prosestate should cuting for perjury, did not more frequently avail himself of this be attended to excellent law, made for the purpose of obviating difficulties in in drawing in- drawing the indictments. (h) In the case in which this remark was made, the commission at the Admiralty session had been unnecessarily set forth in the indictment; and it was admitted that where a prosecutor undertakes to set out in the indictment more of the proceedings than he need under this statute, he must set them forth correctly; but it was holden that the commission at the Admiralty session being set forth as directed to A., B., and C., and others not named, of which number A., B., and C., amongst others, should always be one, the Court must take it to mean that if either of the persons, named of the quorum, were present, it would be sufficient. (i) Several per sons not to be joined in an indictment for perjury. Venue. It has been holden, on motion in arrest of judgment, that several persons cannot be joined in one indictment for perjury, the crime being in its nature several.(k) But this does not apply to subornation of perjury.(1) With respect to the venue in an indictment for perjury it may be briefly observed that the parish or place, unless used as giving some specific local description, will not be material; and that it will be sufficient to shew the offence committed any where within the county. But it seems to be necessary that a place should be stated in the indictment to which a venue may be properly awarded and an indictment was holden to be bad for laying the offence to have been committed "at the Guildhall of the city of : (h) By Lord Kenyon, C. J., in Rex v. Dowlin, 5 T. R. 317. And a case is mentioned in which the Court of K. B. referred an indictment for perjury, which had been removed from Hick's Hall, to the master, to see what part of the record was unnecessary; and made an order that the clerk of the peace should pay the expence incurred by such unnecessary part. The indictment was drawn to an exorbitant length, by stating all the continuances on the former prosecution, &c. 1 Leach 201. (i) Rex v. Dowlin, 5 T. R. 311. (k) Rex v. Philips and another, 2 Str. 921. (1) Reg. v. Rhodes and another, 2 Ld. Raym. 886. London," without stating any parish or ward.(m) In a case where perjury had been committed in the booth-hall within the limits of the city of Gloucester, which is a county of itself, on the trial of a cause before a jury of the county at large, it was holden that the indictment might be found and tried by juries of the county at large. (n) A sufficient venue was holden to be laid on the act of taking the false oath in a case where perjury was assigned on an affidavit of an attorney of the Court made in answer to a summary application against him, and where it was objected that it was not stated where the Court was holden when the original application was made, or when the rule was made, calling upon the defendant to answer the charge. (0) In the instance of making an affidavit in the country, the party is not to be indicted where the affidavit may happen to be used, but in the county where the offence was complete, by making the false oath.(p) dictment. The indictment must also contain an allegation of time; which Allegation of is sometimes material and necessary to be laid with precision, and time in the insometimes not.(g) Where it is not material, it need not be positively averred; and, if under a videlicet, may be rejected. (r) In a case where an indictment for perjury, charged to have been committed in the defendant's answer to a bill of discovery filed in the Court of Exchequer, alleged that the bill was filed on a day specified, it was holden that the day was not material, as it was not alleged as part of the record; and, therefore, that it was no variance, though the bill, when produced, appeared to be entitled generally of a preceding term.(s) But in the same case where an assignment of perjury alleged that the defendant, at the time of effecting a policy of insurance purporting to have been underwritten by A., B., C., and others, on a day specified, well knew, &c. and it appeared on producing the policy that A. underwrote it on a different day, the defect was holden to be fatal, although it appeared that B., C., &c. did underwrite the policy on that day (1) Where the perjury was assigned in answer to a bill alleged to have been filed in a particular term, and a copy produced was of a bill amended in a subsequent term, by order of the Court, it was held to be no variance, the amended bill being part of the original bill.(u) the indictment. It is proper to make such a statement by way of inducement Necessary as will be sufficient to explain the assignment of perjury, and statements in make it intelligible and consistent. And the statements in the indictment must, in general, be made with great accuracy. An indictment for perjury stating a bill of Middlesex as " issuing out (m) Harris's case, 2 Leach 800. (n) Rex v. Gough, Dougl. 760. In this case a charter had made Gloucester a county of itself, reserving only the trial of matters arising in the county at large within Gloucester as before. The Judges intimated their opinions that the indictment might be in either county, but they were clear that it might be in the county at large. (0) Rex v. Crossley, 7 T. R. 315. ante, 519. (p) By Lord Kenyon, C. J. Id. ibid. (1) Rex v. Hucks, 1 Stark. R. 521. Variances. 66 "of the office of the chief clerk assigned to inrol pleas in the court, &c." has been holden to be bad.(x) And a misrecital of the judgment-roll of the cause, at the trial of which the perjury is alleged to have been committed, is also fatal.(y) And if the oath is stated to have been at the assizes holden before Justices assigned to take the said assize before A. B., one of the said Justices, the said Justice then and there having power, &c. it will be a fatal variance if the oath was administered when the Judge was sitting, under the commission of oyer and terminer and gaol delivery.(z) And where an indictment for perjury, committed in a written deposition before a magistrate, in which deposition a word necessary to the sense had been omitted, set out the substance and effect of the deposition, and supplied a word which the sense required, as though it were actually in the deposition, the variance was holden to be fatal. (a) And where a count in an indictment undertakes to set out continuously the substance and effect of what the defendant swore upon his examination, it must be proved that in substance and effect he swore the whole of what is set out, though several distinct assignments of perjury are made thereon. (b) In an indictment for perjury committed before a select committee of the House of Commons, it was averred that the election was held by virtue of a certain precept of the high sheriff, by him duly issued to the bailiff of the borough of New Malton; and it was holden that this was not matter of description, and that the production of a precept, which in fact issued to the bailiff of the borough of New Malton, though directed to the bailiff of the borough of Malton, was sufficient: but the indictment also stated that A. and B. were returned to serve as burgesses for the said borough of New Malton; and this was considered as a description of the indenture of return, in which the borough was described as the borough of Malton, and the variance was holden to be fatal. (c) But an indictment may be supported upon an answer in a court of equity though the answer is not correctly entitled and the name (x) Rex v. Scoole, cor. Kenyon, C. J., Peake N. P. R. 112. (y) Rex v. Eden, cor. Kenyon, C. J., 1 Esp. R. 97. The indictment alleged that the cause came on to be tried before Lloyd, Lord Kenyon, &c. William Jones being associated, &c.; and from the judgment-roll it appeared that Roger Kenyon was associated, &c.; and the variance was held to be fatal. (2) Rex v. Lincoln, Mich. T. 1820, MS. Bayley, J., and Russ. & Ry. 421. (a) Rex v. Taylor, cor. Ellenborough, C. J., 1 Campb. 104. The deposition should have been set out literally, and the meaning explained by an innuendo. The indictment stated that the defendant went before a Justice of the peace, and swore in substance to the effect following, that is to say, &c., and part of the deposi tion, so set forth, was that a person, therein named, assaulted the deponent with an umbrella, and, at the same time, threatened to shoot her with a pistol; but when the deposition was produced, it appeared that after stating the assault with the umbrella, it proceeded thus," and at the same threatened to shoot," &c. omitting the word time. (b) Rex v. Leefe, cor. Ellenborough, C. J., 2 Campb. 134. post. note (u). It appears, however, that in Reg. v. Rhodes and another, 2 Lord Raym. 886. it was holden, upon an indictment containing only one count, that although all the assignments of perjury but one were bad, judgment should not be arrested. And see Compagnon and wife v. Martin, 2 Black. R. 790. (c) Rex v. Leefe, 2 Campb. 141. of one of the parties be mistaken. Thus where an indictment alleged that Francis Cavendish Aberdeen and others exhibited their bill in the Exchequer, &c., and, on the production of the bill, the complainants on the face of it purported to be J. C. Aberdeen, and others, it was holden that this was not a variance, and that it was competent to the prosecutor to prove, by other means than by the bill itself, the allegation that Francis Cavendish Aberdeen did, in fact, exhibit his bill. (d) And it was further holden not to be a variance, although after the allegation in question, and after setting out such parts of the bill as were necessary, these words were added, " as appears by the said bill, &c. filed of record;" on the ground that these words referred to the last antecedent, and could not be considered as incorporated with the prefatory allegation that Francis Cavendish Aberdeen exhibited his bill. (e) And in an indictment for perjury committed in an answer to a bill in chancery, where the bill was stated to have been filed by A. against B. (the defendant in the indictment,) and another, though in fact it was filed against B., C., and D., the variance was holden not to be fatal; the perjury being assigned on a part of the answer which was material between A. and B. (ƒ) And it has been holden, that though there be two counts in the original proceeding, an averment that an issue came on to be tried is not a variance. (g) And a variance between the affidavit actually sworn, and in which the perjury was charged to have been committed, and the affidavit stated in the indictment, by leaving out the letter s in the word understood, was holden to be immaterial. (h) In a subsequent case, the defendant was tried on an indictment for perjury, committed in giving evidence as the prosecutor of an indictment against A. for an assault; and it appeared that the indictment for the assault charged, that the prosecutor had received an injury, "whereby his life was greatly despaired of;" but that in the indictment for perjury, the indictment for the assault, being introduced in these words "which indictment was presented in manner and form following, that is to say," and then set forth at length, did not recite the above-mentioned passage correctly, but omitted the word "despaired;" upon which the counsel for the defendant admitted that it was not necessary to have recited the indictment for the assault; but he contended that the prosecutor, by the words "in manner and form following, that is to say," had undertaken to recite it; and that, having so done, he was bound to set it forth verbatim. But the learned Judge over-ruled the objection; and said, that the word "tenor" had so strict and technical a meaning as to make a literal recital necessary; but that by the words "in manner and form following, that is to say" nothing more was made requisite than a substan (d) Rex v. Roper, cor. Ellenborough, C. J. 1 Stark. R. 518. (e) Id. Ibid. (f) Rex v. Benson, cor. Ellenborough, C. J. 2 Campb. 509. (g) Peake's N. P. Č. 37. (h) Beech's case, 1 Leach 133. The inspection of a record is within the peculiar province of the court; and therefore, if a doubt arise as to any word upon a record, the court and not the jury must resolve that doubt. By Lord Ellenborough, C. J., in Rex v. Hucks, 1 Stark. R. 521. Averment that was heard, &c. tial recital and that the variance, therefore, in the present case, was only matter of form, and did not vitiate the indictment. (¿) In a case where a complaint having been made ore tenus by the complaint a solicitor, before the Chancellor in the Court of Chancery, of an arrest in returning home after the hearing of a cause, the indictment stated that, "at and upon the hearing of the said complaint" the defendant deposed, &c.; and this was holden to be a sufficient averment that the complaint was heard. (k) And it has been holden, that an indictment for perjury, assigned on an affidavit sworn before the court, need not state that the affidavit was filed of record, or exhibited to the court, or in any manner used by the party. (7) The indictment must state that the defendant was duly sworn, &c. It is sufficient to state in the indictment that the defendant was duly sworn. (m) In a case where it was averred that he was sworn on the gospels, and he appeared to have been sworn according to the custom of his own country, without kissing the book, it was considered as a fatal variance; though it was holden that the averment was proved by its appearing that he was previously sworn in the ordinary mode. (n) An indictment for perjury in a cause tried at the assizes was holden good, although it alleged the oath to have been taken before one only of the Judges in the commission, and the nisi prius record imported that the trial was before the two Judges of assize. (o) An indictment at common law, which charged that the defendant "falsely, maliciously, wickedly, and corruptly swore, &c." was holden sufficiently to imply that the offence was committed wilfully; (p) but it was considered at the same time that, in an indictment on the statute 5 Eliz. c. 9., the offence must be laid expressly to have been wilfully committed. (q) It must appear or be alleged in the indictment that the person by whom the oath was administered had competent power to administer it. Thus upon an indictment for perjury before a justice in swearing that I. S. had sworn twelve oaths, where the charge as stated did not import that the oaths were sworn in the (1) May's case, cor. Buller, J., 1799. The learned Judge cited Beech's case, ante, note (h). (k) Rex v. Aylett, 1 T. R. 70. (1) Rex v. Crossley, 7 T. R. 315. Nor is it necessary to prove such facts. Id. Ibid. But it is otherwise when the proceeding is under the sta tute of Eliz. Stark. Crim. Plead. 121. And see 3 Stark. Evid. 1140. citing Rex v. Taylor, Skin. 403. where it was held that the bare making of the affidavit without producing or using it is not sufficient. (m) Rex v. M'Carthur, cor. Kenyon, C. J., Peake's N. P. C. 155. Rex v. Lincoln, Ante, 538., In Reg. r. Deman, 2 Ld. Raym. 1221., an exception was taken to an indictment; that it stated the trial at which the oath was taken to have been before the Lord Chief Baron and the associate, but stated the oath to have been before the Chief Baron, without the associate; and also, that the assignment of perjury differed from the oath, being before the Chief Baron and associate. But the objections were overruled; and the court held that the associate need not be mentioned in every part of the indictment where the Chief Baron was mentioned. (p) As to the offence being wilful, see ante, 518. (q) Cox's case, 1 Leach 71. |