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The day on which a sale took place may be

material.

Materiality of

material question was, whether the dog was the prisoner's or Hewatt's on the 24th of November, the day of the coursing. It had not been disproved that there had been a sale of the dog on the 6th of September; and, if there was, the time of giving the receipt, or even the fact of any receipt having been given, was immaterial. The objection was overruled, and on its being repeated on a case reserved, Lord Abinger, C. B., said, "The whole matter turned on the credit of the witness, and he tries to support his credit by false evidence. The receipt is to confirm his evidence, and he swears it was given before the 12th. If that were true, the proof would be decisive.' Williams, J., 'The time when this receipt was given is a step in the proof.' Lord Denman, C. J., 'Everything is material which affects the credit of the witness.' Lord Abinger, C. B., Every question, in cross-examination, which goes to the credit of the witness, is material. If a witness were asked, in crossexamination, whether he was in such a place at such a time, and he denied it, that would be material if it went to his credit. In the present case, if they could not have contradicted the prisoner by the date of the stamp, the receipt confirming his evidence would have made out the case before the commissioners. (8)

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The prisoner was indicted for perjury before a court of requests, in a proceeding, under the interpleader clause of the Act establishing the court, to ascertain whether a certain pig, which had been seized under an execution issued against him on the 26th of September, had been sold by him on the 5th of August to his brother. The prisoner had sworn that he had sold the pig to his brother on the 5th of August, and the allegation of perjury was, that the pig was not sold by the prisoner to his brother on the said 5th day of August. It was contended that whether or not the pig was sold on the 5th of August was not the material question; the material question was whether or not, at any time before the issuing of execution, there had been a sale of the pig by the prisoner to his brother. It was quite immaterial whether the sale took place on a particular day, if it took place at some time prior to the execution. Maule, J., 'I think that the ultimate question to be decided is one thing, and yet that a material question may be raised upon a matter collateral to that question. I do not at all think that I can confine the law of perjury by making that only perjury which is material to the only question to be tried, otherwise persons might perjure themselves with impunity. It might be a material question in a case of murder what coloured coat a man had on the colour of the pig, as I put it, might be most material; for suppose a person swore that this was a black pig, and another witness swore it was white, it would have been a material question whether the pig was black or white, although the ultimate question would have been whether it was sold at the time when it was alleged to have been sold.' (t) On the hearing of an information against Robinson, under the

(s) Reg. v. Overton, C. & M. 655. 2 M. C. C. R. 263, A.D. 1842. See this case on another point, post, p. 55.

(t) Reg. v. Altass, 1 Cox, C. C. 17, A.D. 1843. A case once occurred at Gloucester where on an indictment for steal. ing a rabbit the question turned on

whether a rabbit found in the prisoner's possession was a buck or doe rabbit, and numerous witnesses were called on each side, and the verdict was, 'We find it was a buck rabbit'-a case well illustrating Mr. J. Maule's remarks.

1 Will. 4, c. 32, s. 30, for committing a trespass in pursuit of evidence as to game on a close in the occupation of T. Warren, a witness having entering a proved that he saw Robinson in Warren's field, and saw him close in pursuit of game. commit the offence there, the prisoner swore, on behalf of Robinson, that he went with Robinson into a lane adjoining the field, and that Robinson shot into the field, but did not enter it, and that he himself went into the field, and fetched off what Robinson killed. It was contended that this evidence was not material; because Robinson was equally guilty of an offence within the 1 Will. 4, c. 32, s. 30, whether he went into the field and shot there, or whether he shot from the lane, and the prisoner in his company went in and brought away the game. But Williams, J., held that the evidence was material. (u)

An indictment alleged that a cause of divorce or separation was pending in the Court of Arches, which was promoted by E. Kelly against her husband J. Kelly, and that J. Worley was examined as a witness on behalf of E. Kelly, and that interrogatories were exhibited to Worley on behalf of J. Kelly, and that Worley falsely swore that he never passed by the assumed names of Abbott or Johnson, and it was proved that Worley was a witness on the part of the wife in the suit, and that interrogatories on behalf of the husband, by way of cross-examination, were exhibited to him, and that one of the questions put to him, with the view of impeaching his credit, was 'Have you not passed by the name of Abbott and also of Johnson?' He answered, 'I never passed by the assumed name of Abbott or Johnson.' He had, however, for several years gone by the name of Abbott, and lived with a woman who took that name, and two of his children by her were christened in that name. Lord Denman, C. J., 'I do not think that the evidence of materiality is sufficient. I do not mean to say that a false answer given, under such circumstances as those proved, might not support a charge of perjury; but I am of opinion that in this case enough has not been shown on the part of the prosecution to connect the false answer with the issue on which the evidence was given. It might have been material, but we cannot clearly see that it was so.' (v)

Materiality of passing by a

different name.

Evidence by a woman on a

trial for rape as to a letter

Where on a trial for rape the prosecutrix swore that she had never got one Williams to write a letter for her, which was shown to her, and on a trial for perjury in so swearing, it was proved that she had got Williams to write a letter to the person she had sent by her to charged with the rape, saying, 'I will do all I can to clear you.' the prisoner. 'I should not have went to the police about the matter at all, if

I had not been persuaded by' two persons whom she named, &c.; it was held that the evidence relating to the writing of this letter was clearly material. (w)

The prisoner was indicted for perjury committed by him on the Where statute hearing of a summons, which he had taken out against the merely colprosecutor before the justices at petty sessions, for using language lateral.

(u) Reg. v. Scotton, 5 Q. B. 493, A.D. 1844. The question was argued in the Q. B., but not decided, the case going off on another point. See ante, p. 10.

(v) Reg. v. Worley, 3 Cox, C. C. 535, A.D. 1849. As no part of the evidence, except the single question and answer, is

stated, it is impossible to see what this
decision amounts to.

(w) Reg. v. Bennett, 2 Den. C. C. 240,
A. D. 1851. Talfourd, J., on the trial, and
approved by the judges on a case reserved
on other points.

If a witness gives false

evidence as to a document in order that it may be admitted in

evidence, this evidence is material, though the document be inadmissible, or not put in evidence.

calculated to incite him to commit a breach of the peace. The language used by the prosecutor was in consequence of the prisoner, as the prosecutor alleged, having kicked and struck a horse, and several witnesses were called who proved this. The prisoner's attention was then called to what the witnesses had said, and he was asked on cross-examination whether it was true; he, however, denied that he had ever kicked or struck the horse, and the justices thereupon committed him for trial for perjury. Held, that no perjury could be assigned, as the statement by the prisoner that he had never kicked or struck the horse was merely collateral. (x)

Upon the trial of Doe d. Richard v. Griffiths, a copy of the will of William Joseph was tendered, and on objection to its admissibility, the prisoner, who was then attorney for the lessor of the plaintiff, swore that he had examined the copy produced with the original will, in the registry at Llandaff; and upon further objection that the original will was inoperative in respect of a chattel interest, and that, therefore, either the probate ought to be produced or the Act Book be proved, the prisoner further deposed that he had examined the memorandum at the foot of the copy of the will, with the entry in the Act Book at the same registry. Upon this evidence the judge offered to receive the document in evidence, but the plaintiff's counsel withdrew it. Upon the trial for perjury, it was proved that the defendant had not made either of the examinations which he had so deposed to, and he was found guilty of perjury; but Erle, J., reserved the question, whether the false oath was relevant and material to the issue then being tried, so as to amount to perjury; as to which the following were the facts:-On the trial of the ejectment, the lessor of the plaintiff claimed to be entitled to a term, which had been granted to William Joseph and Rees Morgan jointly; and his title was that Morgan had survived Joseph, and assigned the term to Catherine, the widow of Joseph, who married Saunders, and on her marriage made a settlement, under which the term vested in him. The will of Joseph was irrelevant to this title; but the time of his death was a material fact, in order to prove that Morgan survived him, and proof of the probate of the will of Joseph would thus have been relevant evidence towards establishing the plaintiff's title. The purpose of the plaintiff's counsel in tendering the evidence, was to clear a doubt respecting the interest of Joseph in the term, which was expected to be raised by the defendant, and after the document was withdrawn, the survivorship of Morgan to Joseph was clearly proved by other evidence for the plaintiff; but the purpose for which the document was offered was not stated on the trial of the ejectment. In the registry at Llandaff it was the practice to indorse the act of probate on the original will, and the book called 'The Act Book' contained a daily account of the matters of business completed in the registry, and the memorandum at the foot of the document in question was a copy of the entry in this book relating to the probate of the will of Joseph, and not a copy of the act of probate indorsed on the original will. It follows that the examination of the document tendered with the entry in the book called

(x) R. v. Holden, 12 Cox, C. C. 166.

'The Act Book' at Llandaff, did not render the document legally admissible as an examined copy of the act of probate. For the prisoner, it was contended before the judges, that the question was simply whether if a witness swears that he has examined a document, not receivable in evidence, with a certain book, that can be said to be material to the issue? The time of Joseph's death was in issue; how could the fact that the witness swore that he had examined a paper, not receivable in evidence, with a certain book, be material to the issue then being tried? It is not enough that the evidence has relation to the matter in issue; it must be material to the issue. It was contended, when the defendant was tried, that what he had sworn was material for the jury, who were to act on the evidence before them; and, secondly, that it was material for the judge, who was to say whether it was to be put to the jury or not. But it could not be material for the jury; for it was withdrawn from their consideration, and they could not legitimately act upon it; and here the judge was not a judge of fact. This evidence was not on any issue of fact which the judge had to try. It was merely evidence to be given to the jury through the judge. Lord Campbell, C. J., 'I am of opinion that the conviction was right. There was false swearing in a judicial proceeding. How can it be said not to have been material? It was necessary to prove that Joseph died before Morgan. Although the fact of Joseph's death had been proved by parol testimony, if evidence was given to show that probate had been granted of Joseph's will while Morgan was still living, it would have been material in corroboration. With a view to have the copy of the will received in evidence, the defendant swore falsely that he had examined the paper produced with the original will at Llandaff, and the entry on it with the entry in the Act Book; and thereupon the judge said, I will admit it, and if it had been read, it would have gone to the jury with the rest of the evidence in the case. Afterwards the document is withdrawn, but that cannot purge the false swearing committed by the defendant. It has been said that if the judge were wrong in admitting the document in evidence, the defendant could not be convicted, making the offence of perjury depend upon whether a judge were right or wrong in his decision on a question of law, and upon the decision of some nice point in a bill of exceptions, which might ultimately go to the House of Lords. We are all of opinion, as the evidence was given in a judicial proceeding, with a view to the reception in evidence of a document, which was material, and as that evidence was false, that all the ingredients necessary to constitute the crime of perjury are present.' (y)

Where a count stated that it was a material question whether Reading over a bond was obtained by the fraud of the prisoner, and that the a bond before prisoner falsely swore that he read over and explained it to the execution. obligor; it was objected that the omission to read over the bond

(y) Reg. v. Phillpotts, 2 Den. C. C. 302. 3 C. & K. 135, A.D. 1851. In the course of the argument, Maule, J., said, 'Here the defendant by means of a false oath endeavours to have a document received in evidence; it is, therefore, a false oath in a judicial proceeding; it is

material to that judicial proceeding; and
it is not necessary that it should have
been relevant and material to the issue
being tried.' In Reg. v. Gibbon, infra,
Pollock, C. B., said that there was a
great deal of very good sense in Lord
Campbell's judgment in this case.

Evidence of

of accounts on a charge of larceny.

was no evidence of fraud, and therefore the statement was not material; but Erle, J., overruled the objection, as the reading over the bond would be strong evidence to negative fraud. (2) The prisoner was indicted for having falsely sworn before the destruction justices, on a charge against the prosecutor for stealing three books of account, that she saw him destroy another book of accounts, the prosecutor being also charged with embezzlement; and Watson, B., held that the evidence was not material. Its being calculated to influence the minds of the magistrates would not be sufficient. It would be merely bad conduct in one instance, inducing a probability of bad conduct in another. On the charge for embezzlement it would have been material evidence. (a)

Materiality of evidence on a reference of a cause and all matters in difference.

Materiality of evidence be fore a coroner.

An indictment alleged that a cause came on to be tried at the Assizes, and that the cause and all matters in difference between the parties were referred to an arbitrator, and assigned perjury before him as to the signature of a paper. The arbitrator said that it was impossible for him so to distinguish between the matters in the cause and the other matters in difference between the parties, as to say definitively to which head the questions put to and the answers given by the prisoner referred, and there was no other evidence on the point. Gurney, Q. C., 'In all these cases it is necessary to show that the matter alleged to be falsely sworn was material, and that cannot be done in this case without proof that it was material either to the action or to the other matters in difference. The evidence failing to show this distinctly, the defendant must be acquitted.' (b)

An indictment for perjury, committed before a coroner while holding an inquest on the body of J. Conolly, alleged that it was a material question whether the deceased, the prisoner, or another person had drank any intoxicating liquor after they bad left a police barrack and before they had arrived at a guard-room, and that the prisoner falsely swore that none of them had tasted any intoxicating liquor during that interval. This statement was clearly shown to be false, but there were no grounds for supposing that the deceased came to his death from anything except from the effects of having been exposed to the night air. It was objected that the matter so falsely sworn was not material, and Monahan, C. J., was inclined so to hold; but he left the question of materiality to the jury, and they convicted; and, upon a case reserved, it was held that the evidence was material. It was the duty of the coroner to inquire into all the circumstances attending, or which might have caused, the death of the person upon whom the inquiry was held. That being so, it at once became material to ascertain whether or not death had not been caused to some extent by the deceased having been tippling in a public-house, and

(z) Reg. v. Smith, 1 F. & F. 98, A.D. 1858.

(a) Reg. v. Southwood, 1 F. & F. 356, A.D. 1858.

(b) Reg. v. Ball, 6 Cox, C. C. 360, A.D. 1854. Gurney, R., is far too good a criminal lawyer to have made such a decision as this, and I have the best authority for saying that he never did so decide. Probably the evidence failed to

show that the evidence was material in any respect upon the hearing of the matters referred. It is obvious that the paper in this case might have been material both to the matter in issue in the cause, and to the other matters referred, and yet according to this report the evidence would not have been material. C. S. G.

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