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Averment of

materiality as

to a person insufficiently connected

with a person

named in the matter sworn.

An account

held sufficientthough there

ly referred to,

had been several similar accounts.

An averment that it was material whether the prisoner

of the name of M. Williams. The description therefore in this averment was larger than the description in the assignments of perjury, and comprehended the M. Williams there spoken of. As to the objection relating to the letter, it was contended that it could not possibly be material that the prisoner got Williams to write a letter. But it was held that, as there was an express averment that it was material, that let in evidence to prove that it was so, and when the evidence was looked at it was clear that the letter was material. (h)

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An indictment for giving false evidence before a commissioner of bankruptcy alleged that upon the examination of the prisoner it was material to inquire what was the extent of the dealings of the prisoner with one Mr. Marshall, and how long he had known the said Mr. Marshall,' &c., and then alleged that the prisoner solemnly declared that Mr. Marshall is the landlord of No. 4, York-terrace,' &c. 'I have known Mr. Marshall two or three years,' &c. Whereas the said person so described was the same person as one S. Marshall Legge, and was the father of the prisoner, &c. It was objected, in arrest of judgment, that there was nothing to connect the allegation of materiality with the assignment of perjury, as there was no innuendo that Mr. Marshall meant S. Marshall Legge; and the judgment was arrested as the averment of materiality was insufficient to connect it with the other parts of the indictment. (i)

An indictment for perjury alleged that a cause came on to be tried before a county court judge, and that it became a material question on the trial whether J. H. Bridges had, in the presence of the prisoner, signed at the foot of a certain bill of account, purporting to be a bill of account between a certain firm called Bridges and Co.' and J. Webster, a receipt for the payment of the said bill, and that the prisoner falsely swore that J. H. Bridges did in her presence sign the said receipt; and it was proved that on the trial the prisoner produced an invoice of goods, at the foot of which was a receipt, which purported to bear the signature of Bridges, and the prisoner swore that he in her presence wrote and signed that receipt. Bridges had on other occasions signed receipts in the presence of the prisoner at the foot of invoices. It was objected that the indictment did not sufficiently specify the account and receipt to which the evidence on which the perjury was assigned related; but, on a case reserved, it was held that the indictment was sufficient, as it was only necessary to refer to the receipt as introductory to making out the materiality of the perjury. (j)

Where an indictment for perjury alleged that the defendant swore that he had not written certain words in the presence of one Dipple, and alleged that it was a material question whether the defendant had so written such words in the presence of some words in Dipple; the Court of Queen's Bench held that the indictment was sufficient; for the question whether the words were written

had written

the presence of

D.

(h) Reg. v. Bennett, 2 Den. C. C. 240; 3 C. & K. 124; 5 Cox, C. C. 207. It is trusted that the text represents substantially the grounds of the decision on the two points; but all three reports are very

unsatisfactory. No express notice was taken of the other points.

(i) Reg. v. Legge, 6 Cox, C. C. 220. The Recorder, after consulting Parke, B. (j) Reg. v. Webster, Bell, C. C. 154.

in the presence of Dipple might have been material; and it was impossible to assume the contrary against the record. (k)

on the

An indictment for perjury on the taking of an inquisition be- An averment fore a coroner alleged that it was, upon the taking of the said that' inquisition, a material question whether,' &c., and it was urged taking of an inquisition,' it that this statement did not sufficiently show that the question was was material, material to the inquiry; but Parke, B., held that the statement &c. sufficiently imported that the question was material to the subjectmatter of the inquisition. (1)

an agreement.

An indictment for perjury alleged that it was a material ques- Question as to tion whether, before the execution of a bond, it was agreed between the materiality certain persons that the prisoner should lend W. Winder 1500l. of the terms of before the title to certain premises was investigated by the prisoner, and before any mortgage thereof was executed to secure repayment thereof, and that they should execute the bond to secure the prisoner the repayment of the said sum and interest in case the title should turn out to be defective, or the mortgage should not be duly executed; but if the title turned out to be good, and the mortgage was executed, they were not to be liable on the bond; and then alleged that the prisoner falsely swore that nothing was said by him or in his hearing about the bond being a temporary security, or a security until the mortgage was prepared, or anything of the kind.' It was objected that, according to the agreement as stated, the bond would be binding until the title turned out to be good, which would not necessarily be when the mortgage was executed, so that the bond would not necessarily be a temporary security. But Erle, J., held that the exact terms of the alleged agreement were not material; for the prisoner swore that there was no agreement' of the kind.' (m)

apparent on

The indictment must show on the face of it that the matter was Ann Bird's material; it is not sufficient if it only shows that it might or might case. not have been material. An indictment for perjury alleged that, Materiality not on the trial of an indictment for an assault, with intent to commit necessarily a rape, and for a common assault, upon one Ann Bird, the said the face of the Ann Bird swore that she was the wife of one J. Bird, and had indictment. been married to him at such a time and such a place, whereas she was not the wife of the said J. Bird, and had never been married to him; and the indictment contained an allegation of materiality, which was insensible in consequence of an error in copying it from the draft; it was, nevertheless, contended that it sufficiently appeared on the face of the indictment, that the evidence on which the perjury was assigned was material on two grounds. First, that on any indictment for an assault, with intent to commit a rape, it was most material, not only as affecting the credit of the witness, but as going to the very gist of the charge itself, whether the party assaulted had falsely sworn that she was a married woman. Secondly, that by swearing that she was the wife of J. Bird, the prosecutrix supported the allegation that the assault was upon Ann Bird,' which would have failed if she had admitted that she was not married to J. Bird. But Cresswell, J., held that it did not sufficiently appear that the evidence was

(k) Reg. v. Schlesinger, 10 Q. B. 670. (7) Reg. v. Kimpton, 2 Cox, C. C.

296.

(m) Reg. v. Smith, 1 F. & F. 98.

Apparent materiality of

an affidavit to postpone a trial.

Apparent

materiality of evidence set out in an indictment.

material; it might or might not be material, and that was not sufficient. (n)

Where an indictment for perjury stated that a cause was set down for trial, and appointed for a particular day, and that the defendant in that cause, before that day, made an affidavit before a judge, in which he stated that he had a good defence to the action, which he would be able to prove at the trial, and that some of the bills on which it was brought were void for usury, and then assigned perjury on these allegations; it was objected that the indictment was clearly bad: the only manner in which such an affidavit could be in a judicial proceeding, or the matters contained in it become material, would be upon an application to postpone the trial of the cause; but the indictment did not show that any such application was made or intended. Lord Tenterden, C. J., however, thought that the occasion, on which the affidavit was intended to be used, might be sufficiently collected from the indictment, and refused to stop the trial, as the defendant, if there was any weight in the objection, might have the benefit of it after he was convicted. (0)

An indictment alleged that an action came on to be tried in a county court, in which the plaintiff claimed to recover a sum for the expenses of a journey, and another sum for wages, and it was thereupon proved, on the part of the plaintiff, that the defendant had made certain statements, which were set out, and by which the debt to the plaintiff was sought to be proved; and afterwards averred that the defendant swore that he had not made any of the said statements; whereas he had made them; but there was no averment of materiality. Byles, J., held that such an averment was not necessary; but that it would suffice if the materiality could be gathered from the whole indictment, and if the assignments of perjury showed upon the face of the indictment that they were material to the issue. And here it appeared, on the face of the indictment, that the statements alleged to be falsely made were material to the issue. (p)

(n) Reg. v. Ann Bird, Gloucester Spr. Ass. 1842. The indictment for the assault simply stated the assault to be upon Ann Bird, without any further description. The learned judge expressed an opinion that the indictment was insufficient before the case went to the jury, but he left it to them, and after they had found the prisoner guilty, arrested the judgment, in order that the prosecutor might bring a writ of error if he thought fit. No writ of error was brought, the prosecutor being unable to incur the expense of such a proceeding. It sometimes happens that upon an objection taken to an indictment before verdict, the judge who tries the case, if he considers the objection valid, directs an acquittal; but the course adopted by the learned judge in this case is certainly the better course, as, if the decision be incorrect where the judgment is arrested, it may be reversed upon error; whereas if the prisoner is acquitted, and the decision is incorrect, there is no means of correcting the error, and as the verdict

of the jury has been taken, it may be very questionable whether if a fresh indictment were preferred a plea of autrefois acquit might not be successfully pleaded. See per Lord Tenterden, C. J., Rex v. Fowle, 4 C. & P. 592, post. In Reg. v. Purchase, C. & M. 617, tried at the same assizes, Patteson, J., after consulting Cresswell, J., refused to allow any objection to be taken to an indictment for embezzlement, except upon demurrer or in arrest of judgment, and it seems most in accordance with the regular course of proceeding that such a course should be adopted in all cases. C. S. G.

(0) Rex v. Abraham, 1 M. & Rob. 7. The defendant was convicted, but did not appear to receive judgment when called upon, and no motion in arrest of judg ment was made.

(p) Reg. v. Harvey, 8 Cox, C. C. 99. It was urged that the omission of an averment of materiality was a mere formal defect, and amendable under the 14 &

tradict the

fendant.

It is also necessary that the indictment should expressly con- The indicttradict the matter falsely sworn to by the defendant. And the ment must exgeneral averment that the defendant falsely swore, &c., upon the pressly conwhole matter, will not be sufficient: the indictment must proceed matter sworn by particular averments (or, as they are technically termed, by to by the deassignments of perjury), to negative that which is false. It may be necessary to set forth the whole matter to which the defendant swore, in order to make the rest intelligible, though some of the circumstances had a real existence: but the word 'falsely' does not import that the whole is false; and when the proper averments come to be made, it is not necessary to negative the whole, but only such parts as the prosecutor can falsify, admitting the truth of the rest. (q) It is suggested that in negativing the defendant's oath where he has sworn only to his belief, (r) it will be proper to aver that 'he well knew the contrary of what he swore. (s) It seems that an assignment of perjury may, in some Assignment instances, be more full than the statement of the defendant, which fuller than the it is intended to contradict. Thus, where the fact in the affidavit, the defendant. in which the defendant was charged to have perjured himself, was, that he never did, at any time during his transactions with the commissioners of the victualling-office, charge more than the usual sum of sixpence per quarter beyond the price he actually paid for any malt or grain purchased by him for the said commissioners as their corn-factor; and the assignment in the indictment, to falsify this, alleged that the defendant did charge more than sixpence per quarter for and in respect of such malt and grain so purchased; it was objected that the words in respect of might include lighterage, freight, and many collateral and incidental expenses attending the corn and grain jointly with the charge for the corn or grain, and, that bearing such sense, the defendant was not guilty of perjury; but the objection was overruled. (t)

statement of

cards between certain hours.

An indictment alleged that it was material, on the hearing of Imperfect asan information before justices of the peace, to prove that cards signment of playing at were played in the bar of a public-house between the hours of six o'clock and eight o'clock on a certain evening, and that the prisoner falsely swore that he was in the bar of the said house from between the hours of six o'clock and seven o'clock until nine o'clock in the said evening, and that he did not play at any game at all, and that no cards or game of cards at all were or was during all the said last mentioned time or between the hours aforesaid played therein; whereas the prisoner did between the hours of six o'clock and eight o'clock in the said evening play at a certain game of cards. Rolfe, B., held that the indictment was bad. The prisoner might have played at five minutes past six, and yet not have played from between six and seven until nine; the words from between six and seven' might be any time short of seven, five minutes or five seconds to that hour. The indict

15 Vict. c. 100, s. 25, vol. 1, p. 36; but Byles, J., was clearly of opinion that it was matter of substance. It was also urged that sec. 20 of that Act (ante, p. 35), rendered the averment unnecessary; but Byles, J., was clearly of opinion that it did not, as it was not one of the things named in that section.

VOL. III.

(q) Rex v. Perrott, 2 M. & S. 385, 390.
And see ante, vol. 2, p. 585.
(r) Ante, p. 2.

(8) 2 Chit. Crim. L. 312.

(t) Rex v. Atkinson, Dom. Proc. 1785. Bac. Abr. tit. Perjury (C). See Reg. v. Gardiner, ante, p. 52.

A variance

terial date in

the matter sworn and the date in the

ment could not be read as averring that the prisoner swore that he did not play at any time during that evening, but merely that he did not play at a particular period of that evening, namely, from some period before seven until nine. That might be perfectly true, and yet he might have played between six and seven, and so may have played, as is assigned in the indictment, between six and eight. (u)

Where an indictment for perjury committed in an information between a ma- before magistrates, alleged that the prisoner was sworn on an information taken on the 11th of March, 1844, and deposed that on the morning of Thursday last, the 7th day of March (he meaning the 7th day of March in the year 1804),' he met G. C.; whereas the prisoner did not on the morning of Thursday, the 7th day of March, 1844, meet G. C.; it was held that 1804 could not be rejected as surplusage, and that the indictment was bad. (v)

denial of that
matter is
fatal.

The averments negativing the truth of the matter sworn ought to be distinct and precise.

Perjury cannot be assigned on

contradictory depositions without show ing which of them is false.

The averments introduced to negative the matter sworn, ought to be so distinct and definite as to inform the defendant of the particular and precise charges which are intended to be proved against him. An indictment for perjury committed in the Insolvent Debtors' Court alleged, that the defendant swore in substance that his schedule contained a full, true, and perfect account of all debts owing to him at the time of presenting his petition; whereas the said schedule did not contain a full, true, and perfect account of all debts owing to him at that time; and Lord Tenterden, C. J., after consulting the other judges of the Court of King's Bench, held that the indictment was insufficient, as it was quite impossible that the defendant could know, from allegations so vague and indistinct, what was to be proved against him; the allegations conveyed no information whatever of the particular charges, against which the defendant ought to be prepared to defend himself (w)

The indictment charged the prisoner with the offence of making a false declaration before a justice, that he had lost a pawnbroker's ticket, whereas in truth and in fact he had not lost the said ticket, but had sold, lent, or deposited it, as a security to one S. C., &c.' Held, that the allegations but had sold, lent, or deposited it, &c.,' did not render the indictment ambiguous or uncertain, but was pure surplusage, which might be rejected, and need not be proved. (x)

It has been decided that perjury cannot be legally charged and assigned by showing that the defendant did on two different occasions make certain depositions contradictory to each other with an averment that each of them was made knowingly and deliberately, but without averring or showing in which of the two depositions the falsehood consisted. The information stated that the defendant, before a committee of the House of Commons, being duly sworn, deliberately and knowingly, and of his own act and

86.

(u) Reg. v. Whitehouse, 3 Cox, C. C.

(v) Reg. v. Garvey, 1 Cox, C. C. 111. Brady, C. B. This case is very badly reported, and it is very doubtful whether the wrong year was not given as the date of swearing the information.

(w) Rex v. Hepper, R. & M. N. P. R. 210. See Rex v. Mudie, 1 M. & Rob. 128, post, p. 79. R. v. London, 12 Cox, C. C. 50.

(x) R. v. Parker, 39 L. J. M. C. 60. L. R. 1 C. C. R. 225.

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