55

when he thinks or believes the contrary, or to swear that a fact exists where he knows nothing about it.50 For a witness to equivocally use words which in one sense are true, but which he intends to be, and which are, understood in another and an untrue sense, was held perjury in an old English case. According to the weight of authority, drunkenness is a defense, as it may negative the existence of such a state of mind as is capable of giving "willfully corrupt,' false testimony; 57 but there are decisions to the contrary.58

Materiality of Testimony

The false testimony must be material to the issue or matter of inquiry. To be material it must be of such a character as would, if believed, tend to affect the verdict of the jury in the particular case. Thus false testimony given at a coroner's inquest, as to the whereabouts of a certain person at the time of the death, such person not being under suspicion as having caused the death, is not perjury; nor is it perjury to testify falsely that one lived near the place where a certain sale took place, the fact of the sale not being

60

55 Rex v. Pedley, 1 Leach, 327; Reg. v. Schlesinger, 10 Q. B. 670; Com. v. Edison (Ky.) 9 S. W. 161.

56 State v. Gates, 17 N. H. 373.

572 Bish. New Cr. Law, § 1048; Lyle v. State, 31 Tex. Cr. R. 103, 19 S. W. 903; McCord v. State, 83 Ga. 521, 10 S. E. 437.

58 People v. Willey, 2 Parker, Cr. R. (N. Y.) 19.

59 People v. Collier, 1 Mich. 137, 48 Am. Dec. 699; State v. IIattaway, 2 Nott & McC. (S. C.) 118, 10 Am. Dec. 580; State v. Whittemore, 50 N. H. 245, 9 Am. Rep. 196; Wood v. People, 59 N. Y. 117; Rump v. Com., 30 Pa. 475; Com. v. Pollard, 12 Metc. (Mass.) 225; State v. Smith, 40 Kan. 631, 20 Pac. 529; Jennings v. State (Miss.) 7 South. 462; People v. Perazzo, 64 Cal. 106, 28 Pac. 62; People v. Ah Sing, 95 Cal. 657, 30 Pac. 797; Martin v. Miller, 4 Mo. 47, 28 Am. Dec. 342; Leak v. State, 61 Ark. 599, 33 S. W. 1067; State v. Brown, 68 N. H. 200, 38 Atl. 731.

60 Nelson v. State, 32 Ark. 192.

61

material. So, if the question at issue is whether a certain person brought a certain number of sheep from one town. to another, it is not perjury to testify that he brought them all at one time, when in fact he brought them partly at one time and partly at another.62 So, when the question at issue was only whether A. beat B., it was not perjury for a witness to swear that A. drew his dagger and beat and wounded B.63

But the materiality of the testimony must in all cases depend on the facts and circumstances of the particular case. If material, the extent of the materiality is unimportant. Thus, it is perjury to testify to facts affecting the credibility of the witness himself, as on cross-examination, or the credibility of other witnesses. It makes no difference that the testimony was legally inadmissible if it was material; 65 nor that defendant was not a competent witness; 66 nor that he could not have been compelled to testify; 7 and it is not necessary that the testimony shall have been believed or have had any influence. The testimony need not necessarily be material to the principal issue in the proceeding, but it is sufficient if it is material to any collateral inquiry

68

67

61 State v. Hattaway, 2 Nott & McC. (S. C.) 118, 10 Am. Dec. 580. 62 Hawk. P. C. (6th Ed.) 323.

63 Hawk. P. C. (6th Ed.) 323.

64 Com. v. Grant, 116 Mass. 17; Wood v. People, 59 N. Y. 117; State v. Brown, 79 N. C. 642; State v. Hattaway, 2 Nott & McC. (S. C.) 118, 10 Am. Dec. 580; Washington v. State, 22 Tex. App. 26, 3 S. W. 228; Williams v. State, 28 Tex. App. 301, 12 S. W. 1103. 65 2 Whart. Cr. Law, §§ 1279, 1280.

66 Chamberlain v. People, 23 N. Y. 85, 80 Am. Dec. 255.

67 Mackin v. People, 115 Ill. 312, 3 N. E. 222; Mattingly v. State, 8 Tex. App. 345. One may be convicted of perjury in falsely testifying in his own behalf on the trial for a criminal offense. Allen v. U. S., 194 Fed. 664, 114 C. C. A. 357, 39 L. R. A. (N. S.) 385.

68 Hoch v. People, 3 Mich. 552; Pollard v. People, 69 Ill. 148.

in the course of the proceeding." Thus a false affidavit, made to secure the continuance of a suit, is perjury.70

The materiality of the testimony must be proved by the prosecution; it will not be presumed from the fact that the testimony was admitted in the trial."1

BRIBERY

71

144. Bribery at common law is defined by Blackstone to be where a judge or other officer connected with the administration of justice receives any undue reward to influence his behavior in office; 72 but high authorities define it as the giving or receiving of a reward to influence any official act, whether of a judicial officer or not.73

Mr. Bishop states that the gist of the offense of bribery is the tendency of the bribe to pervert justice in any of the governmental departments, executive, legislative, or judicial, and defines the crime as "the voluntary giving or receiving of anything of value in corrupt payment for an official act done or to be done." " The crime is committed by

69 State v. Keenan, 8 Rich. (S. C.) 456; State v. Shupe, 16 Iowa, 36, 85 Am. Dec. 485. The crime of making a false oath in a bankruptcy proceeding in violation of Bankr. Act July 1, 1898, c. 541, § 29b, 30 Stat. 554 (U. S. Comp. St. 1913, § 9613), is not of equal enormity with perjury, and the ancient rule of the common law requiring two witnesses to convict of perjury does not apply. Kahn v. U. S., 214 Fed. 54, 130 C. C. A. 494.

70 State v. Shupe, supra.

71 Com. v. Pollard, 12 Metc. (53 Mass.) 225.

72 4 Bl. Comm. 139. See, also, 3 Inst. 145; 2 Russ. Crimes, 122. 732 Bish. New Cr. Law, § 85; Har. Cr. Law, 84.

741 Bish. Cr. Law, § 85; STATE v. ELLIS, 33 N. J. Law, 102; 97 Am. Dec. 707, Mikell Illus. Cas. Criminal Law, 242. Bribery is the

one who gives the bribe, as well as by him who receives it. A mere present to an officer after the act is not bribery if

giving, offering, or receiving of anything of value, or any valuable service, intended to influence one in the discharge of a legal duty. 2 Am. & Eng. Encyc. Law (2d Ed.) 907. The thing offered as a bribe must be something of some value to the receiver, not something imaginary, illusive, or amounting to nothing more than the gratifi cation of a wish or hope on his part. People v. Hyde, 156 App. Div. 618, 141 N. Y. Supp. 1089. A., a city treasurer, requested a bank with which he had deposited city funds to loan another city deposi tory sufficient money to tide it over an investigation. The bank acceded to A.'s request under a threat by him to withdraw the city funds from it in case of a refusal. It was held that A.'s threat did not amount to a bribe, in the absence of proof that he was personally interested in the assisted bank. People v. Hyde, supra. The giving of entertainments for the purpose of unduly influencing legislation has been held not to constitute bribery. Randall v. Evening News Ass'n, 97 Mich. 136, 56 N. W. 361. The giving of a present to an officer after the act desired is not bribery, if not the result of a previous understanding. Hutchinson v. State, 39 Tex. 293. If the thing offered is of some value, it is sufficient; the amount of its value is immaterial. State v. McDonald, 106 Ind. 233, 6 N. E. 607. Bribery cannot be predicated on an offer of a reward not to perform duties for the performance of which there is no legal or constitutional warrant. U. S. v. Boyer (D. C.) 85 Fed. 425. A prisoner held under an illegal arrest cannot be convicted of offering to bribe an officer to allow him to escape. Ex parte Richards, 44 Tex. Cr. R. 561, 72 S. W. 838; Moore v. State, 44 Tex. Cr. R. 159, 69 S. W. 521. Under a statute making it a crime to offer money to a public officer with intent to influence his decision "on any matter which may by law be brought before him in his official capacity," it was held that the defendant was not guilty of the crime where he offered a member of the board of health a bribe to vote in favor of an award of a contract, the power to award which was committed to the board by an ordinance which was illegal and void; "for," said the court, "the matter could not legally come before Chapman in his official capacity." State v. Butler, 178 Mo. 272, 77 S. W. 560. Where the defendant offered the state's attorney a bribe if he would drop certain criminal proceedings, and the state's attorney, in order to trap the defendant, accepted the money, it was held that the defendant was not guilty of bribery, but could be convicted only for an attempt.

76

there was no prior understanding.75 An offer of a bribe, or an offer to accept a bribe, is a crime, though probably an attempt at bribery rather than bribery. A voter, in casting his vote, performs an official act; and bribery of voters is a crime at common law." An offer by a candidate for a county office, made to the voters, that he would, if elected, return part of his salary into the county treasury, was held to constitute bribery; 78 though it was held otherwise where a note was given to induce the people to vote for the removal of the county seat.79 One who conveys an offer to bribe from a third person is himself guilty, though the money is to be paid by the third person; so and the third person in such case is also guilty.81 The offense is generally defined by statute.

80

The Criminal Code provided that whoever corruptly gives money to a state's attorney with intent to influence him in his official capacity is guilty of bribery. People v. Peters, 265 Ill. 122, 106 N. E. 513. 75 Hutchinson v. State, 36 Tex. 293.

76 Walsh v. People, 65 Ill. 58, 16 Am. Rep. 569; STATE v. ELLIS, 33 N. J. Law, 102, 97 Am. Dec. 707, Mikell Illus. Cas. Criminal Law, 242. Cf. State v. Miles, 89 Me. 142, 36 Atl. 70.

77 Reg. v. Lancaster, 16 Cox, Cr. Cas. 737; State v. Jackson, 73 Me. 91, 40 Am. Rep. 342; Com. v. McHale, 97 Pa. 397, 39 Am. Rep. 808; State v. Ames, 64 Me. 386. Bribery of member of nominating convention. Com. v. Bell, 145 Pa. 374, 22 Atl. 641, 644. Offer of money to legislator to vote for candidate for United States senator is bribery at common law. State v. Davis, 2 Pennewill (Del.) 139, 45 Atl. 394. 78 State ex rel. Newell v. Purdy, 36 Wis. 213, 17 Am. Rep. 485. 79 Dishon v. Smith, 10 Iowa, 212.

80 People v. Northey, 77 Cal. 618, 19 Pac. 865, 20 Pac. 129. 81 People v. Kerr (O. & T.) 6 N. Y. Supp. 674.

CLARK CR.L.3D ED.-29