Indictmert bad for not showing that of appeal had been given under the a valid notice Tax Acts. the indict ment that the oath was material, or it An indictment for perjury alleged to have been committed on the hearing of an appeal against a surcharge under the Game Acts before commissioners of assessed taxes, stated that a notice of appeal had been given to the assessors, and averred that the commissioners were duly authorized and empowered to hear and determine' the appeal. It was objected that the commissioners had no jurisdiction unless a notice of appeal had been given to the surveyor or commissioners; it was answered that the indictment alleged that the commissioners had authority, and that the want of notice might have been waived; but Patteson, J., held that the want of notice could not be waived; for the 43 Geo. 3, c. 29, enabled the commissioners to hear the appeal, unless such notice shall not have been given,' &c., when they shall dismiss the appeal.' Without such notice, therefore, the commissioners had no authority to hear the appeal, and it could not make the indictment good to show by evidence that the proper notice was given, when the indictment itself showed the notice to have been an improper one. (u) It is necessary that it should appear on the face of the indict- It must appear ment that the oath taken was material to the question depend- on the face of ing. (v) But it is not necessary to set forth in the indictment so much of the proceedings of the former trial as will show the materiality of the question on which the perjury is assigned, and it will be sufficient to allege generally that the particular question became a material question. (w) Thus statements, that, at a court of admiralty sessions, 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 upon the trial of J. K. for the murder, and that the question on which the perjury was assigned was material on that trial. (x) 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. (y) 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. (~) 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 10,0007. to inquire into the truth of the petition in that respect.' (u) Anonymous, 1 Cox, C. C. 50. (r) Rex v. Aylett, 1 T. R. 69. (w) Rex v. Dowlin, 5 T. R. 311; Lavey t. Reg. 2 Den. C. C. R. 504; 3 C. & K. 26. (x) Id. ibid. (y) 2 Chit. Crim. L. 307 a, citing Trem. P. C. 139, &c., and Rex v. Crossley, 7 T. R. 315. Ryalls v. Reg. 11 Q. B. 781. Reg. v. Cutts, 4 Cox, C. C. 435. (2) Rex v. M'Keron, East. T. 1792, MS. Bayley, J. 5 T. R. 316. S. C. must be alleged that it was. The indictment must show either by a statement of the proceedings, or by express aver ment, that the matter sworn was material. 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. (a) It seems to be fully 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. An indictment for perjury alleged that on the trial of a certain issue the defendant was sworn as a witness, and that on such trial certain questions became material, that is to say, 'whether one J. Kenworthy had been arrested by one J. Lister; whether the said J. L. had on the occasion of the said alleged arrest touched the person of the said J. K.; and whether the said J. L. had on the occasion of the said alleged arrest put his arms round the said J. K. and embraced him.' The indictment then charged that the defendant swore falsely to the following effect. Lister (meaning the said J. L.) put his arms round him (meaning the said J. K.) and embraced him (meaning the said J. K., and meaning thereby that the said J. L. had on the occasion to which the said evidence applied, touched the person of the said J. K.). It was further alleged that in answer to a question put to the defendant, 'whether the said J. L. did not put his arms round him (meaning the said J. K.) and embrace him,' the defendant falsely swore as follows: 'he (meaning the said J. L.) did' (meaning that the said J. L. did on the occasion to which the said evidence applied put his arms round and embrace the said J. K. and did touch the person of the said J. K.). The defendant having been convicted, a writ of error was brought, and the error specially assigned was that the materiality of the evidence alleged to have been false was not sufficiently averred in the indictment; and it was contended that in the evidence, on which the perjury was assigned, there appeared neither time, place, nor circumstance to connect the statement with the alleged arrest. The whole might have turned upon some former and entirely different transaction. And the innuendoes did not remove the difficulty: for there was no averment in them that it was on the occasion of the alleged arrest; it merely imported that the evidence was given concerning an occasion, which was not identified with that in question. Bayley, J., An indictment must be good without the help of argument or inference. In the case of perjury the indictment must show, either by a statement of the proceedings or by other averments, that the question to which the offence related was material. That is not shown here in either way. The words on which perjury is assigned, if taken without the innuendoes, have no necessary reference to the occasion of an alleged arrest; nor is there anything in the indictment to connect them with it. It is contended that the inquiry, to which part of the evidence was an answer, would not have been relevant if applicable to any other matter and occasion than those now in question; but we know nothing of the merits of the case except (a) Rex v. Bignold, Trin. T. 1824. MS. Bayley, J. The indictment was shown to Lord Gifford, M. R., and Mr. Bell, K. C., who both thought that upon the face of the indictment it could not be said whether the question was material or not; and the materiality of all questions in a chancery suit depending upon the purpose for which the suit is instituted, the court held that the indictment could not be supported. MS. Bayley, J. from the indictment. The innuendoes rather introduce greater doubt than greater certainty, and lessen the force of the argument that only one occasion could have been contemplated. I am, therefore, of opinion that the indictment is defective, and the judgment ought to be reversed.' (b) materiality. Where an indictment stated that a suit was pending in the Hewins's case. Court of Chancery, and that a commission was issued to certain Imperfect commissioners to examine witnesses upon interrogatories, and then allegation of set out the ninth interrogatory, and averred that, 'upon the examination of the defendant upon the said interrogatories, it became, and was, material to ascertain the truth of the matters hereinafter alleged to have been sworn to and deposed by the defendant, upon. his oath, in answer to the said ninth interrogatory;' it was objected that the averment of materiality was insufficient, there being no statement of the alleged perjury being material to the chancery suit, or to any question in that suit; and Coleridge, J., expressed some doubt whether the averment of materiality was sufficient, and would have reserved the point if it had become necessary. (c) And where an indictment for perjury, after alleging that an infor- Goodfellow's mation was exhibited before two magistrates, and that the same information came on to be heard before M. G. and J. S., two justices, and that upon the hearing of the said information before the said M. G. and J. S., so being such justices as aforesaid, it became and was material to ascertain the truth of the matter hereinafter alleged to have been sworn to and stated by the said J. S. upon his oath; it was held that this averment of materiality was insufficient. (d) case. and of the matter sworn. falsity of the An indictment stated that, on the trial of an action of Meek v. Burraston's Knight, it became and was a material question, whether a certain case. Insufficient bill of exchange, bearing date,' &c. (here the bill was described) averments of 'was accepted by the said J. Meek, for the accommodation of the materiality said W. Knight, and without valuable consideration to the said J. Meek from the said W. Knight; and whether a certain paper writing or memorandum, then and there produced, by and in the handwriting of the defendant, J. Burraston, was really and truly executed by the said W. Knight, by affixing his mark thereto, at the time of the making of the said bill of exchange. (The indictment then set out the memorandum.) And whether the said memorandum was read over by the said J. Burraston to the said W. Knight, at the time of making the said bill of exchange as aforesaid.' The indictment then alleged that the defendant swore that the said paper writing or memorandum was duly executed by the said W. Knight, by affixing his mark to the same, in the presence of the said J. Burraston, on the day on which the same bears date and at the time of the making of the said bill of (b) Rex v. Nicholl, 1 B. & Ad. 21. Littledale, J., and Parke, J., concurred, and Parke, J., added, It is part of the definition of perjury that the false swearing is on some point material to the question in issue. In an indictment this may appear either from the matter of the suit, as shown on the record, or by direct averment.' (c) Reg. v. Hewins, 9 C. & P. 786. The defendant was acquitted. The form (d) Reg. v. Goodfellow, Patteson, J., An averment that it then and there be came material' is insufficient. An averment exchange, and that the said memorandum was then and there read over by the said J. Burraston to the said W. Knight. 'Whereas, in truth and in fact, the said W. Knight did not execute the said paper writing or memorandum by affixing his mark thereto, in the presence of the said J. Burraston, on the day on which the same bears date, nor was the said memorandum read over by the said J. Burraston to the said W. Knight at the time of the making of the said bill of exchange, nor was the said memorandum produced or shown to the said W. Knight by the said J. Burraston, at the time of making the said bill of exchange.' Upon a writ of error, brought after a general verdict of guilty, the errors assigned were, that no perjury was assigned upon the question alleged to have been a material question upon the trial, and that no perjury was assigned upon any question alleged to have been a material question upon the trial; and the Court of Queen's Bench held that the indictment was bad. The assignment of perjury, that the bill was not executed on the day on which the same bears date, departed from the statement of the evidence, and the allegation of the materiality. And the assignment of perjury, that the paper was not executed at the time of the making of the bill, bore no relation to the allegations of the evidence of the defendant. The statement of the evidence of the defendant, as well as the allegation of the falsehood, were uncertain. The words 'then and there' might refer to the two dates, the date of the memorandum and the day of the making of the bill, and it might consist with the fact that it never was read over on both days, or the defendant might never have intended to say that it was. (e) An indictment alleged that E. S. filed his bill in chancery against the prisoner, J. S. S., and J. S., whereby he prayed that a purchase by the prisoner might be declared fraudulent and void, and that he might be decreed to deliver up the contract to be cancelled, and then averred that it then and there became a material question whether the prisoner did advise the said J. S., E. S., and J. S. S., that certain real estate, including the premises described in the said bill, should be sold. It was held that the averment of materiality was insufficient. There might be very good reasons for setting aside the sale as fraudulent, quite independently of any advice given by the prisoner; and that being so, the question was whether there was a sufficient averment of materiality, and the words 'then and there' were not sufficient to supply the omission of the words 'in the said suit,' or words to the same effect. (ƒ) An indictment for perjury alleged that H. L. stood charged bethat a question fore T. Scott, a justice of the peace, with having on the 12th of was material (e) Reg. v. Burraston, 4 Jurist, 697. The court expressed strong doubts whether it was possible to separate the three propositions, which were said to have formed one question; and Littledale, J., said that if it was one assignment of perjury, and part was bad, the whole was vitiated. It was also doubted whether where a matter was stated to be a material question the prosecutor could abstain from stating any swearing as to such matter, or assiguing any perjury upon it. But it became unnecessary for the court to decide either of these points, as the indictment was held bad on the grounds stated in the text. (f) Reg. v. Cutts, 4 Cox, C. C. 435. Q. B. Lord Campbell, C. J., said, 'An indictment for perjury must either show that the evidence alleged to be false was necessarily material to the issue, or there must be a positive averment that it was material.' swore is August committed a trespass by entering in the daytime on cer- at the time tain land in pursuit of game, and that upon the hearing of the the prisoner said charge, the prisoner appeared as a witness for the said H. L., insufficient. and was duly sworn to speak the truth touching the said charge; and that the prisoner upon the hearing of the said charge, falsely swore that he did not see the said H. L. during the whole day of the 12th of August, and that at the time he the said prisoner swore as aforesaid it was material and necessary for the said T. Scott, so being such justice as aforesaid, to inquire of and be informed by the said prisoner whether he did see the said H. L. at all during the said 12th day of August,' and it was held that the indictment was bad; for 'it is not stated that it was a material and necessary question in the inquiry before the said T. Scott, to which the false and corrupt answer was given. It may have been, therefore, consistently with the averments in the indictment, material and important for T. Scott in some other matter, and not in the matter stated to be in issue before him, to have put this question and received this answer. Now as the offence of perjury consists in taking a false oath in a matter stated to be in judgment before a court or person having competent authority to decide it, and as this indictment does not clearly and distinctly charge that, it does not charge the offence of perjury.' (g) Averments as to the materiality of a letter, and identification of a person named in the averments with one named in the assignments of An indictment for perjury committed on a trial for rape alleged that it was a material question whether the prisoner ever got oue M. Williams to write a letter for her, and whether or not she saw the said M. Williams at the house of S. Lewis's father when the said letter was written; and that the prisoner falsely swore that she never got a Mr. M. Williams (he being then present in court during the said trial) to write a letter for her, and that she did not see the said Mr. M. Williams at the said house of the said father of the said S. Lewis. Whereas the prisoner did get the perjury said M. Williams to write a letter for her, &c. At the trial for rape, the prisoner was asked whether she ever 'got Mr. M. Williams (who was pointed out to her in court) to write a letter for her. She replied, 'No, I did not.' The letter was shown to her and the question repeated, and she repeated her denial, and she also denied having ever seen M. Williams at S. Lewis's father's house. The falsity of what she so swore was clearly proved and the letter produced. It was objected, 1st, that the materiality of the matters assigned as perjury was not sufficiently alleged; 2nd, that the reference to the letter was too vague and general, and not properly pointed to the particular letter; 3rd, that the references to M. Williams and Lewis's father's house were not properly introduced by an averment; 4th, that the letter produced was not sufficiently identified with the statements on the record to support them. The objections were overruled, and, on a case reserved, it was urged that all the assignments of perjury were defective in not identifying the M. Williams spoken of in them with the M. Williams spoken of in the allegation of materiality; but it was held that the indictment was sufficient: it averred that it was a material question whether the prisoner got any M. Williams to write a letter. That averment comprehended every person (7) Reg. v. Bartholomew, 1 C. & K. 366. All the judges. |