Eliz. 428. 1 Bla. Com. 137. Ld. Raym. 257. 889. Holt, 535. 1 Term R. 67. 69. And it always lies on the prosecutor to prove that the perjury was material, id. ibid. Hawk. b. 1. c. 69. s. 8. n. (3). In the application of this rule some difficulty seems to have arisen. It is, however, clear that if the subject matter is entirely foreign to the purpose, not tending either to extenuate or increase the damages or the guilt, nor likely to induce the jury to give a more easy credit to the substantial part of the evidence, the party will not be liable to an indictment, Hawk. b. 1. c. 69. s. 8. It is indeed urged by Hawkins, with great appearance of truth, that this must be intended where the question is put in such a manner that the witness might reasonably apprehend that the sole design of putting it was to acquire information on the substantial part which might induce him through inadvertency to take no notice of the circumstantial part of his story, for he argues that the minuteness of a narrative is frequently a great inducement with a jury to give it credit, Hawk. b. 1. c. 69. s. 8. Something perhaps might be urged against this reasoning; it seems to put the legal guilt of perjury on a wrong footing by confounding it with the moral; and indeed does away entirely the distinction between material and immaterial averments, and sets aside the rule the author has just before endeavoured to establish; for it goes to prove that every man is legally guilty of perjury, when he swears falsely before a competent officer, and confounds the impertinency of the false evidence with the absence of an intention of deceiving; we have already seen that where there is no intention to mislead, even though the false statement be ever so material, the party cannot be punishable, because the perjury loses all its legal guilt by the absence of a bad design. To resolve one established rule into another is rather suspicious. It is, however, more easy to decide on each particular case [*306] than to establish any general principle. To swear falsely as to the character of a witness is sufficiently material, Comyn. Rep. 43. 1 Ld. Raym. 258. And in general it is sufficient if the matter be circumstantially material to the issue, or affect the ultimate decision, 1 Ld. Raym. 258. 2 id. 889. 2 Roll. R. 369. Thus perjury may be committed by falsely swearing that another witness is entitled to credit if such assertion conduce to the proof of the point in issue, 2 Ld. Raym. 258. And it is, certain that there is no necessity that the false evidence should be sufficient to render the party on whose behalf it is given successful, but it will suffice if that is its evident tendency, 2 Ld. Raym. 889. or in a civil action it has the effect of increasing or extenuating the damages, comme semble Wood's Inst. 435.

To constitute perjury at common law it is not necessary that the false oath should obtain any credit or occasion any actual injury to the party against whom the evidence is given; for the prosecution is not grounded on the inconvenience which an

Process.

Indictment

at common

law.

[*307]

individual may sustain, but on the abuse and insult to public justice, 2 Leon. 211. 3 Leon. 230. 7 T. R. 315.

PROCESS. Though there does not seem to be any difference in the power of magistrates and judges to issue their warrants in cases of misdemeanour, and they have therefore a power so to do in perjury, as well as in other cases (see 1 vol. p. 13, 14.) in the practice of the London police offices, no warrant is usually granted to apprehend a party accused of this offence, before an indictment has been found against him. But by 23 Geo. II. c. 11. any justices of assize, nisi prius, gaol delivery, or of a court of great sessions in Wales or a county palatine, is authorized during the sitting of the court or within twenty four hours after its rising, to direct any person examined as a witness upon a trial before him, to be prosecuted for perjury, and to assign the party injured, or other person undertaking to conduct the prosecution, counsel who must discharge their duty without remuneration. Proceedings thus instituted are also, by the same act, exempted from taxes, duties and fees of court, by a certificate which the clerk of assize, &c. must give to the person selected to conduct them. Justices of the peace have no jurisdiction over perjury at common law, though they have under the statute; it is, therefore, most usual to commence prosecutions for this offence in the king's bench, or at the assizes, Hawk. b. 1. c. 69. s. 14. n. 5. and id. b. 2. c. 8. s. 38. ante 1 vol. 139, 140.

INDICTMENT.-In former times, indictments for perjury for perjury were exceedingly prolix and dangerous. Thus, an information on the statute of Elizabeth, set forth the statute itself, the pleadings in an action* of ejectment, the issue joined, the proceedings on the trial, the whole evidence, and the assignment of perjury upon it. Co. Ent. Inform. 367. But in order to facilitate prosecutions for perjury, which have frequently been unsuccessful, in consequence of formal defects, it was enacted by 23 Geo. II. c. 11. that in every indictment and information for wilful and corrupt perjury, it shall be sufficient to set forth the substance of the offence charged upon the defendant, and by what court, or before whom the oath was taken, (averring such 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 equity, other than as aforesaid; and without setting forth the commission or authority of the court or "person or persons before whom the perjury was committed." See observations on the statute 5 T. R. 317, 2 M. and S. 385. and a clear and succinct summary of the usual parts of an indictment for this offence. 2 Leach 859, 860. It is usual, however, to set forth so much at least of the matter sworn, as is alleged to be untrue, in order to render the assignment of

perjury intelligible and consistent; beyond this, it is certainly advisable to take advantage of this statute; which Lord Kenyon regretted, so few prosecutors seemed inclined to observe. 5 T. R. 317.-and the court will censure unnecessary prolixity, as settting out continuances in the former prosecution, and make the party pay the expense, 1 Leach, 201. If, however, the prosecutor sets forth the commission on which the authority of the court was founded, the proceedings will not be vitiated by a clerical error in the recital. 5 T. R. 311. 2 Campb. 139. 1 Leach, 192. 1 Campb. 404. The statute requires only the substance of the offence, the name of the court, a simple averment of the court's authority to administer the oath, and proper averments of the falsity of the defendant's assertions. The substance of the charge is intended in opposition to its details; and, therefore, it is sufficient if all the circumstances, necessary to describe and render it intelligible in its legal requisites, appear on the face of the proceedings, 5 T. R. 318. It has been held, that though there be two counts in the original proceeding, yet an averment that an issue came on to be tried, will be no variance. Peake, Rep. 37.

In stating the place where the perjury was committed, some place must be alleged, to which a venire may be reasonably awarded, and therefore to charge the offence "at the Guildhall of the city of London," will not suffice, unless some parish or ward be also inserted, though in the case of any other city, it [308] seems it would suffice. 2 Leach, 800. When the perjury is committed in a hall, situate within the limits of a city, which is a county in itself, on the trial of a cause before a jury of the county at large, the indictment may be found and tried at the assizes for the latter. Dougl. 791.-And an indictment for perjury in an affidavit of an attorney, on a summary application against him, need not specify the place where the court was holden, to which the motion was originally addressed, but it will suffice, if a proper venue be laid to the fact of the actual perjury, 7 T. R. 315. A too general statement of place, put absolutely to the fact of false swearing, cannot be aided by an innuendo expressing a parish, and containing a minute description of the place where it was taken, 1 Ld. Raym. 256. It suffices however to show, that the perjury was committed any where in the county, though at a different parish, or place, to that alleged in the indictment, unless there be a variance in some specific local description. Holt, Rep. 534, ante 200, 1. 1 vol.

In stating the substance of the charge, there are several circumstances, which it is necessary to observe. By way of inducement it will suffice to state so much as renders intelligible the assignment of the perjury. Thus it is sufficient to state that a certain cause had arisen, and was depending and came on to be tried in due form of law, or that at such a court I. K. was in due form of law tried on a certain indictment, then and

[*309]

there depending against him for murder, and that the perjury was committed on the trial, either of the civil or criminal proceeding. 5 T. R. 318. Cro. C. C. 7th Ed. 612. n. a. Thus also where a complaint was made ore tenus, by a solicitor to the court of chancery, of an arrest in returning home after the hearing of a cause, it was holden sufficient to state that “ at, and upon the hearing of the said complaint, the defendant swore," &c. and that there was no occasion for any positive averment of the hearing the application, 1 T. R. 74. It is unnecesary to set out the continuances of the former prosecution, 1 Leach, 201, or to state out of what office, process issued, in case of perjury, on a Bill of Middlesex, though if a wrong office be stated, the indictment will be defective, Peake, N. P. 112. Cro. C. C. 339, 56. The statute 23 Geo. II. c. 11. renders it unnecessary to set forth the commission, from which the authority of the court is derived, in which the perjury was committed. But it also makes it necessary to aver concisely, that they had competent authority to administer the oath, which must therefore be pursued in every indictment for this offence. Dougl. 156. If, however, the prosecutor will set forth the unnecessary matter he must do it with legal, though not with literal accuracy.* 5 T. R. 317. 1 Esp. Rep. 97. 9 East, 157. 2 Campb. 139. 1 Ld. Raym. 701. 13 East 547. But it has

been holden that an indictment for perjury at the assizes will be good, though it state the oath to have been taken before one justice only, though the names of two are inserted in the caption. 1 Leach, 150. 14 East, 218. n. a. And when the offence occurred on a trial before the chief baron at Nisi Prius in Middlesex, there is no occasion to mention the associate, and if it be stated "et sic commisit voluntarium perjurium coram the lord chief baron, associato sibi J. S." the proceedings will be valid. 2 Ld. Raym. 1221.

It is undoubtedly necessary that it should appear on the face of the indictment, that the false allegations were material to the matter in issue, 1 T. R. 69. 5 T. R. 318. Comb. 461. Cro. Eliz. 428. Comyns, Rep. 43. 8 Ves. J. 35. 2 Bridgman's Index, 395. 2 Ld. Raym. 889. Holt, 535. Cro. C.C. 7th Ed. 613. n. a. But it is not requisite to set forth all the circumstances which render them material, the simple averment that they became and were so will suffice, 5 T. R. 318. see Ld. Raym. 889. though it will be proper to state any circumstance, to which the assignment of perjury must afterwards refer. 1 T. R. 66. On the other hand, it should seem that if the materiality of the question evidently appears on 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, with safety, be omitted. See Trem. P. C. 139, &c. and 7 T. R. 315.

It must appear that the defendent was regularly sworn. But

it will be sufficient if it be stated that he was in due manner sworn, though he took the oath according to the ceremonies of a particular religion, Peake, N. P. 155. And if he were sworn twice, first in the usual form, and afterwards after his own method, to state that he was sworn on the holy gospel of God will suffice, though had he been sworn only in the latter way, the variance would have been fatal, id. ibid. Cro. C. C. 7. id. 575. n. (c). It is not necessary to state that the justices, &c. were of the quorum, 26 Geo. II. c. 27.

It is proper to aver that the defendant falsely swore, &c. 2 M. and S. 385, but in an indictment for perjury at common law, the word "wilfully," &c. is not necessary, it being implied from the words, falsely, maliciously, wickedly, and corruptly. 1 Leach, 71. The matter on which the assignment of perjury is made need not be prefaced with the words, " to the tenor and effect following," or other expressions which compel an exact recital, but it should rather be " in substance, and to the effect following," 2 Campb. 138.* Cro. C. C. 7th ed. 573. [*310] n. (a), and cases there cited, "or in manner and form following, that is to say," which allow of a greater latitude. (1 Leach 192.) And it seems to be sufficient to state that the defendant did falsely swear, &c. that, &c. Trem. P. C. 139. 1 T. R. 64. and then stating the precise words, with innuendoes, or the substance of what was sworn to; a variance, however, in the latter case, which alters the sense, will be fatal. 1 Leach 133. And in an indictment for perjury in an affidavit if a word were accidentally omitted in the original document it must not be supplied as if sworn, but inserted and explained by an innuendo, see 1 Campb. 404, where lord Ellenborough said "the words ought to be set out exactly as sworn, and if there be any mistake, or ambiguity in the words of the oath, that can only be remedied by an innuendo;" and if in one count the whole of the defendant's evidence be set out continuously, it is reported to have been decided, that the prosecutor must prove it all, though the words," to the substance and effect following," are prefixed to the recital, 2 Campb. 134. So also, if in an indictment for perjury, before a committee of the House of Commons, on an election petition, it be stated, that A. B. and C. D. were returned to serve as burgesses for the said borough of New Malton, and the indenture, when produced, describes them as returned for Malton, without the epithet, "New," the variance will be fatal. 2. Campb. 134. 141. But it would suffice to say that the election was had, "by virtue of a certain precept of the high sheriff of the county, by him duly issued to the baliff of the said borough of New Malton," though the precept varied, because it is said not to be matter of description. 2 Cambp. 140. In setting forth the matter on the record, on which the assignment is made, as well as the perjury, it is frequently necessary to make use of innuendoes, in order to explain the meaning. An innuendo is defined to be a mode of explaining some Crim. Law.

VOL. II.

20