county for which the justice acted, Eyre, J., arrested the judgment; because as the charge did not so import the justice had no jurisdiction to administer the oath in question to the defendant. (r) a the indictment was. It is necessary that it should appear on the face of the indictment It must appear that the oath taken was material to the question depending. (s) on the face of But it is not necessary to set forth in the indictment so much of that the oath the proceedings of the former trial as will shew the materiality was material of the question on which the perjury is assigned; and it will be or it must be sufficient to allege generally that the particular question became alleged that it material question. (t) Thus statements, that, at a court of Admiralty session, J. K. was "in due form of law tried upon a certain indictment then and there depending against him" for murder, and that "at and upon the said trial it then and there became, and was made a material question," whether, &c. were holden to be sufficient averments that the perjury was committed on the trial of J. K. for the murder, and that the question on which the perjury was assigned was material on that trial. (u) If the materiality of the question evidently appears upon the record, as where the falsehood affects the very circumstance of innocence or guilt, or where the perjury is assigned on documents from the recital of which it is evident that the perjury was important, the express allegation may, it seems, be omitted.(x) And where, upon an indictment for perjury on a trial for felony, it did not appear that the matter sworn was material nor was it alleged that it was so, the Judges held, upon a case reserved, that if the original indictment had been set out, and it could plainly have been collected that the matter was material it would have been sufficient without an averment of materiality, but that as this was not the case, the indictment was bad. (y) So where upon an indictment for perjury committed in an answer in Chancery the perjury was assigned in defendant's denial in the answer of his having agreed upon forming an insurance company of which he was director &c. to advance 10,000l. for three years to answer any immediate calls, and there was no averment that this was material, nor did it appear for what purpose the bill was filed, or what was the prayer, the judgment was arrested. (2) It therefore seems to be settled that either it must appear upon the indictment that the matter in respect of which the perjury is assigned was material or it must be expressly alleged to have been so. But if the false oath has any tendency to prove or disprove the matter in issue, though but circumstantially; as, if the party wilfully mistake the (r) Rex v. Wood, Exeter, 1723, MS. Bayley, J. (s) Rex v. Aylett, 1 T. R. 69. (x) 2 Chit. Crim. L. 309.; citing Trem. P. C. 139, &c. and 7 T. R. 315. (y) Rex v. M'Keron, East. T. 1792, MS. Bayley, J. (z) Rex v. Bignold, Trin. T. 1824, MS. Bayley, J. The indictment was shewn to Lord Gifford, Master of the The indict ment must expressly contradict the matter sworn to by the de fendant. colour of a man's coat, or speak to the credit of another witness it will amount to perjury. (a) It is also necessary that the indictment should expressly contradict the matter falsely sworn to by the defendant. And the general averment that the defendant falsely swore, &c. upon the whole matter, will not be sufficient: the indictment must proceed by particular averments, (or, as they are technically termed, by assignments of perjury,) to negative that which is false. It may be necessary to set forth the whole matter to which the defendant swore, in order to make the rest intelligible, though some of the circumstances had a real existence: but the word "falsely" does not import that the whole is false; and when the proper averments come to be made, it is not necessary to negative the whole but only such parts as the prosecutor can falsify, admitting the truth of the rest. (b) It is suggested that in negativing the defendant's oath where he has sworn only to his belief, (c) it will be proper to aver that "he well knew" the contrary of what he swore. (d) It seems that an assignment of perjury may, in some instances, be more full than the statement of the defendant, which it is intended to contradict. Thus, where the fact in the affidavit, in which the defendant was charged to have perjured himself, was, that he never did, at any time during his transactions with the commissioners of the victualling-office, charge more than the usual sum of sixpence per quarter beyond the price he actually paid for any malt or grain purchased by him for the said commissioners as their corn-factor; and the assignment in the indictment, to falsify this, alleged that the defendant did charge more than sixpence per quarter for and in respect of such malt and grain so purchased; it was objected that the words in respect of might include lighterage, freight, and many collateral and incidental expences attending the corn and grain jointly with the charge for the corn or grain, and, that bearing such sense, defendant was not guilty of perjury: but the objection was overruled. (e) It has been decided in a recent case that perjury cannot be legally charged and assigned by shewing that the defendant did on two different occasions make certain depositions contradictory to each other with an averment that each of them was made knowingly and deliberately, but without avering or shewing in which of the two depositions the falsehood consisted. The information stated that the defendant, before a committee of the House of Commons, being duly sworn, deliberately and knowingly, and of his own act and consent, did say, swear, and give in evidence, &c.: setting out the evidence so given. And then the count averred that the said defendant, at the bar of the House of Lords, being duly sworn, deliberately and knowingly, and of his own act and consent did say, swear, and give in evidence, &c.: setting out in like (a) Rex v. Griebe, 12 Mod. 142. Rex v. Muscot, 10 Mod. 195. Stark. Evid. 1144. (b) Rex v. Perrott, 2 M. & S. 385, 390, 391, 392. And see ante, 309, 310. (c) Ante, 518. (d) 2 Chit. Crim. L. 312. 1785. manner the latter evidence which was directly contrary to that given before the House of Commons, and concluded (after averments as to the identity of the persons and places referred to in the evidence on both occasions), and so the jurors aforesaid, do say that the said Edward Harris did commit wilful and corrupt perjury. And this was holden to be bad on motion in arrest of judgment. (f) : endo. If there be any doubt on the words of the oath, which can be Of the innumore clear and precise by a reference to some former matter, it may be supplied by an innuendo; the use of which is, by reference to preceding matter, to explain and fix its meaning more precisely (g) but it is not allowed to add to, extend, or change the sense. (h) We have seen that, in a case of perjury committed in an affidavit, it was holden that a word which had been omitted by accident in the original document was improperly stated in the indictment, as though it had been in the original document, and that such word ought to have been inserted and explained by an innuendo. (i) In a case where an objection was taken to an indictment, that it added, by way of innuendo to the defendant's oath, "his house situate in the Haymarket in St. Martin in the fields;" without stating by any averment, recital, or introductory matter, that he had a house in the Haymarket; or, (even admitting him to have such a house,) that his oath was of and concerning the said house, so situated, the objection was over-ruled; on the ground that the innuendo was only a more particular description of the same house which had been previously mentioned. (j) And, in the same case, the oath of the defendant being that he was arrested upon the steps of his own door, an innuendo that it was the outer door was holden good. (k) Where an innuendo is introduced contrary to the rules which have been mentioned, and any use is made of it in the indictment, it cannot be rejected as surplusage, and it will be bad after verdict. (1) But if the innuendo, and the matter introduced by it, are altogether impertinent and immaterial, and can have no effect in enlarging the sense, it seems that they may be rejected as superfluous. (m) In general the court will oblige the defendant to plead or demur to a defective indictment for perjury. (n) And they are also very cautious in granting a certiorari to remove it. (o) And it appears that Lord Thurlow refused permission to amend an answer where an indictment for perjury had only been threatened, even where the party, having no interest, could not be supposed to take the false oath intentionally. (p) In a late case, Abbott, Ld. C. J., said (f) Rex v. Harris, 5 B. & A. 926, It should have been averred and shewn in which of the two depositions the falsehood consisted. (g) Rex v. Aylett, 1 T. R. 70. Rex v. Taylor, 1 Campb. 404. (h) Rex v. Griepe, 1 Lord Raym. 256. 2 Salk. 513. And see as to the use of an innuendo, 1 Saund. 243, note (4). 1 Chit. on Plead. 382, 383. 1 Stark. Crim. Plead. 108, el sequ. The court will, oblige the defendant to plead or de in general, mur to a defective indict ment. Plea of autrefois acquit. Trial. Jurisdiction of quarter sessions. Summary proceeding. Evidence. One witness not sufficient. that, inasmuch as the objection taken to an indictment for perjury appeared upon the record, he did not feel himself warranted in taking notice of it at nisi prius. (q) The right of the defendant to plead a plea of autrefois acquit came under the consideration of the Court of King's Bench in the following case. The defendant was indicted in Middlesex, for perjury committed in an affidavit; which indictment, after setting out so much of the affidavit as contained the false oath, concluded, with a prout patet, by the affidavit filed in the Court of King's Bench, at Westminster, &c. and on this he was acquitted; after which he was indicted again in Middlesex, for the same perjury, with this difference only, that the second indictment set out the jurat of the affidavit, in which it was stated to have been sworn in London; which was traversed by an averment that, in fact, the defendant was so sworn in Middlesex, and not in London : and the Court of King's Bench held, that he was entitled to plead autrefois acquit, as the jurat was not conclusive as to the place of swearing; and the same evidence as to the real place of swearing the affidavit might have been given under the first as under the second indictment; and, therefore, the defendant had been once before put in jeopardy for the same offence. (r) With respect to the trial of perjury it may be observed, that the courts of quarter sessions have no jurisdiction over the offence at common law, though they have jurisdiction over it under the statute 5 Eliz. c. 9. (s) The difficulties of proceeding upon that statute have been before adverted to;(t) so that the safer and most usual mode of proceeding is by indictment at the assizes, or in the King's Bench. And indictments for perjury at common law, preferred at the quarter sessions, appear to have been quashed for want of jurisdiction. (u) Where a person made an affidavit in the Court of Common Pleas, and afterwards, being summoned to appear in court, came there, and confessed it to be false, the court recorded his confession, and ordered that he should be taken into custody, and put in the pillory. (v) In answer to the objections of the defendant's counsel to this proceeding, it was argued that it was fully justified under the 5 Eliz. c. 9., and that even if the court could not punish the defendant by virtue of that statute, he might be punished at common law, on the ground that any court might punish such a criminal for an offence committed in facie curiæ. (w) The evidence of one witness is not sufficient to convict the defendant on an indictment for perjury; as in such case there would (a) Rex v. Souter, 2 Stark. R. 423. (r) Rex v. Embden, 9 East. 437. v. Higgins, 2 East. R. 18, ante, 871. (u) 3 Burn. Just. tit. Perjury, &c. Rex v. Bainton, 2 Str. 1088. Rex r. Westiness, id. ibid. 1 Chit. Crim. L. 301. (v) Rex v. Thorogood, 8 Mod. 179. (w) Id. Ibid.; and Bushel's case, Vaugh. 152. was cited. be only one oath against another. (x) But this rule must not be understood as establishing that two witnesses are necessary to disprove the fact sworn to by the defendant, for if any material circumstance be proved by other witnesses, in confirmation of the witness who gives the direct testimony of perjury, it may turn the scale, and warrant a conviction. (y) And the rule does not apply where the evidence consists of the contradictory oath of the party accused. Thus, in a case where the defendant had been convicted of perjury, charged in the indictment to have been committed in an examination before the House of Lords, and the only evidence was a contradictory examination of the defendant before a committee of the House of Commons, application was made for a new trial, on the ground that in perjury two witnesses were necessary, whereas in that case only one witness had been adduced to prove the corpus delicti, namely, the witness who deposed to the contradictory evidence given by the defendant before the committee of the House of Commons, and further, it was insisted, that mere proof of a contradictory statement by the defendant on another occasion was not sufficient, without other circumstances, shewing a corrupt motive, and negativing the probability of any mistake. But the Court held that the evidence was sufficient, the contradiction being by the party himself, and that the jury might infer the motive from the circumstances, and the rule was refused.(z) And the same principle appears to have been acted upon in a former case. The defendant had first made his information upon oath before a Justice of the peace, that three women were concerned at a riot at his mill (which was dismantled by a mob on account of the price of corn), and afterwards, at the sessions, when the rioters were indicted, he was examined concerning those women, and (having been tampered with in their favour,) he then swore they were not in the riot. There was no other evidence on the trial of the defendant for this perjury, to prove that the women were in the riot (which was the perjury assigned) but the defendant's own original information on oath, which was produced and read, and by which he had sworn that they were in the riot. And the Judge thought this evidence sufficient, and the defendant was convicted and transported. (a) And with respect to this evidence, it has been observed, that when the same person has by opposite oaths asserted and denied the same fact, the one seems sufficient to disprove the other; and with respect to the defendant (who cannot contradict what he himself has sworn) is a clear and decisive proof, and will warrant the jury in convicting him on either, for whichsoever is given in evidence to disprove the other, it can hardly be in the defendant's (x) Reg. v. Muscot, 10 Mod. 193. 4 Black. Com. 358. Peake on Evid. 10. Phil. on Evid. 112. (y) Rex v. Lee, Mich. 6 Geo. 3. MS. Bayley, J., Phil. Evid. 143. (z) Rex v. Knill, 5 B. & A. 929. note (a). (a) Anon. cor. Yates, J., Lancaster VOL. II. Sum. Ass. 1764. And afterwards, Lord Mansfield, C. J., and Wilmot, J., and Aston, J., to whom Yates, J., stated the reasons of his judgment, concurred in his opinion. Notes to Rex v. Harris, 5 B. & A. 939, 940. MS. Bayley, J. 2 N |