case decided by Yates, J., at the Lancaster assizes in 1764, and the ruling approved by Lord Mansfield. The other is the case of Rex v. Knill, 5 Barn. & Ald. 929, note. It is shown however in 2 Russell on Crimes, 652, that in each of these cases there were corroborating circumstances in addition to the contradictory oath. But if these cases even go to the extent which is claimed for them, they are overruled by the later English decisions. And it is now held by those courts that the defendant's own evidence upon oath is not sufficient of itself to disprove the evidence on which the perjury is assigned. In Reg. v. Wheatland, 8 Car. & P. 238, Mr. Baron Gurney held that it was not sufficient to prove that the defendant had, on two different occasions, given direct contradictory evidence, although he might willfully have done so; but that the jury must be satisfied, affirmatively, that what he swore at the trial was false, and that would not be sufficiently shown to be false by the mere fact that the defendant had sworn contrary at another time; it might be that his evidence at the trial was true, and his deposition before the magistrate false. There must be such confirmatory evidence of the defendant's deposition before the magistrate as proved that the evidence given by the defendant at the trial was false. In Reg. v. Hughes, 1 Car. & K. 519, Tindall, Ch. J., said: "If you merely prove the two contradictory statements on oath, and leave it there, non constat, which statement is the true one." See also Jackson's Case, 1 Lew. C. C. 270; Roscoe, Crim. Ev. 767, 768. In the United States there are but few decisions bearing upon the question. The writers on criminal law, however, lay down the rule in conformity with the English cases. 3 Whart. Am. Crim. L. § 2275; 2 Bishop, Crim. L. § 1005; 1 Greenl. Ev. 259. Schwartz v. Com. 27 Gratt. 1025, 21 Am. Rep. 365. "The principle that one witness with corroborating circumstances is sufficient to establish the charge of perjury, leads to the conclusion that circumstances, without any witness, when they exist in documentary or written testimony, may combine to the same effect; as they may combine, altogether unaided by oral proof, except the evidence of their authenticity, to prove any other fact, connected with the declarations of persons or the business of human life. The principle is, that circumstances necessarily make a part of the proofs of human transactions; that such as have been reduced to writing, in unequivocal terms, when the writing has been proved to be authentic, cannot be made more certain by evidence aliunde, and that such as have not been reduced to writing, whether they relate to the declarations or conduct of men, can only be proved by oral testimony. Accordingly, it is now held that a living witness of the corpus delicti may be dispensed with, and documentary or written evidence be relied upon to convict of perjury,-first, where the falsehood of the matter sworn by the prisoner is directly proved by documentary or written evidence springing from himself, with circumstances showing the corrupt intent; secondly, in cases where the matter so sworn is contradicted by a public record, proved to have been well known by the prisoner when he took the oath,the oath only being proved to have been taken; and, thirdly, in cases where the party is charged with taking an oath, contrary to what he must necessarily have known to be true; the falsehood being shown by his own letters relating to the fact sworn to, or by any other written testimony existing and being found in his possession, and which have been treated by him as containing the evidence of the fact recited in it. If the evidence adduced in proof of the crime of perjury consists of two opposing statements of the prisoner, and nothing more, he cannot be convicted. 1 Greenl. Ev. §§ 258, 259. NOTE.-Perjury, sufficiency of evidence to convict. When oral testimony is relied upon to establish perjury, the general rule is that there must be the testimony of two witnesses, or of one witness corroborated by circumstances. Two witnesses are generally required. Reg. v. Muscot, 10 Mod. 194; Rex v. Broughton, 21Strange, 1230; Clifford v. Brooke, 13 Ves. Jr. 134; 2 Bridgman, Index, 395; 2 Stark. Ev. 262; Rex v. Mayhew, 6 Car. & P. 315, note. Because if a person could be found guilty on the testimony of a single witness, there would only be one oath against another. 4 Bl. Com. 358. But where the defendant himself, in one part of his affidavit, states a fact, and afterwards, in another part, contradicts it, then one witness would be sufficient to prove the falsity of the statement first made. Rex v. Harris, 5 Barn. & Ald. 926, 929, note. On an indictment for perjury, two witnesses are not necessary to disprove the facts sworn to by the defendant; but where there is but one witness, some other evidence must be adduced independent of, and in addition to his testimony. State v. Hayward, 1 Nott & McC. L. 547; Woodbeck v. Keller, 6 Cow. 118; Rex ▼. Mayhew, 6 Car. & P. 315; Coulter v. Stuart, 2 Yerg. 225; Merritt's Case, 4 City Hall Rec. 58; Francis' Case, 4 City Hall Rec. 12; 2 Russell, Crimes, 544, The oath of one witness and the declarations of the defendant inconsistent with the oath in which perjury is assigned are sufficient. State v. Molier, 12 N. C. 263; Woodbeck v. Keller, supra. This strong proof in cases of perjury seems to be required not only as to the falsity of the oath, but as to the facts sworn to. State v. Howard, 4 McCord, L. 159. On a trial for perjury, the testimony of one witness is sufficient to prove that the defendant swore as is alleged in the indictment. Com. v. Pollard, 12 Met. 225. The testimony of one witness, corroborated by the letters of the defendant to him, is competent and sufficient evidence of the falsity of the statement alleged as the perjury. Com. v. Parker, 2 Cush. 212. Subornation of perjury may be proved by the testimony of one witness. Com. v. Douglass, 5 Met. 241. The better opinion is that one who swears in honest belief, although without probable cause, is not guilty. Browne, Crim. L. 86. Citing Com. v. Brady, 5 Gray, 78; State v. Chamberlain, 30 Vt. 559; Com. v. Thompson, 3 Dana, 301. Whether materiality is a question of fact or of law is mooted. Browne, Crim. L. 86; 2 Bishop, Crim. L. § 1039, a. To establish perjury requires two witnesses, or circumstances corroborating a single witness. Com. v. Pollard, 12 Met. 225; Williams v. Com. 91 Pa. 493. To constitute a valid oath, for the falsity of which perjury will lie, there must be an unequivocal and present act in some form in the presence of an officer authorized to administer oaths, by which the affiant consciously takes upon himself the obligation of an oath. The mere delivery of an affidavit, signed by the person presenting it, to the officer for his certificate, is not such an act. O'Reilly v. People, 86 N. Y. 154, 40 Am. Rep. 525. To sustain a conviction, it was necessary to show that the oath had been legally administered and taken in due form of law. People v. Tuttle, 36 N. Y. 431; State v. Morris, 9 N. H. 96; Dodge v. State, 24 N. J. L. 455. While it is perjury for one knowingly and willfully to swear to a fact as true about which he knows nothing, the swearing to an affidavit, the contents of which the deponent does not know, is not necessarily perjury; to constitute the crime he must have willfully made the affidavit, knowing that he did not know its contents or the facts alleged. Byrnes v. Byrnes, 102 N. Y. 5. To sustain a conviction of perjury, it is essential that the testimony given should be false, and known to be such, or not known to be true, though so alleged. If the witness testified under an honest mistake or misapprehension and honestly believed what he testified to be true, a conviction cannot be had. People v. Dishler, 4 N. Y. Crim. Rep. 188. CHAPTER LVII. BIGAMY. § 506. What Constitutes the Crime. 507. What Evidence is Admissible. 508. The Case of Reg. v. Lumley Examined. 512. Actual Marriage must be Shown. 513. First Marriage may be Proved by Confession. riage. 515. What must be Shown by the Prosecution. 516. Legal Wife not a Competent Witness. § 506. What Constitutes the Crime.-"A person who, having a husband or wife living, marries another person, is guilty of bigamy, and is punishable by imprisonment in a penitentiary or state prison for not more than five years. "The last section does not extend, "1. To a person whose former husband or wife has been absent for five years successively then last past, without being known to him or her within that time to be living, and believed by him or her to be dead; or, "2. To a person whose former marriage has been pronounced void, or annulled, or dissolved, by a judgment of a court of competent jurisdiction, for a cause other than his or her adultery, or, "3. To a person who being divorced for his or her adultery has received from the court which pronounced the divorce, permission to marry again, or, "4. To a person whose former husband or wife has been sentenced to imprisonment for life." N. Y. Penal Code, §§ 298, 299. § 507. What Evidence is Admissible.-As to what evidence is admissible, and what evidence is sufficient, to establish a prior valid marriage, there seems to exist a contrariety of opinion and decision in the books. A valid marriage must be proved, and some statutes say "mere reputation" is not sufficient proof of the fact. Not that reputation is not admissible as evidence to be taken in connection with other proofs to establish the fact, but that in and of itself alone and without other evidence, it is insufficient to establish the fact. § 508. The Case of Reg. v. Lumley Examined. The judgment in Reg. v. Lumley, L. R. 1 C. C. 196, sustains this rule, and in fact goes further, and holds that the law makes no presumption that a person continues to live, from the proof of his or her existence at a former date. In that case, which was a prosecution for bigamy, the facts were as follows: The prisoner married one Victor at St. Helier's in the island of Jersey, in the year 1836, and lived with him in England until the middle of 1843, when they were separated, and she was taken by her parents back to Jersey, where she resumed her maiden name. On the 9th of July, 1847, she describing herself as a spinster, married Lumley, with whom she lived until March, 1864. Nothing was heard of Victor from the time the prisoner left him in 1843. No evidence was given of the age of Victor, by which it might be reasonably inferred that death had supervened. The learned judge (Lush) before whom the trial was had, directed the jury that there being no circumstances leading to any reasonable inference that he had died, "Victor must be presumed to have been living at the date of the second marriage." The question whether this direction was right or not was reserved for the opinion of the court. The case was argued before a court composed of Kelly, C. B., Cleasby, B., Byles, Lush and Brett, JJ. Lush, J., delivered the opinion of the court. He said: "We are of opinion that the direction to the jury in this case (stating it as given above) was erroneous. In an indictment for bigamy it is incumbent upon the prosecution to prove, to the satisfaction of the jury, that the husband or wife, as the case may be, was alive at the date of the second marriage. That is purely a question of fact. The existence of the party at an antecedent period may or may not afford a reasonable inference that he was living at the subsequent date. If for example, it were proved that he was in good health on the day preceding the second marriage, the inference would be strong, almost irresistible that he was living on the latter day, and the jury would in all probability find that he was so. If on the other hand, it were proved that he was then in a dying condition, and nothing further was proved, they would probably decline to |