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Examination

before a justice, &c.

Time of trial

Criminal

Court.

suborning any other person to make a false oath, affirmation, or declaration punishable as perjury, or as a misdemeanor. (u)

By the 22 & 23 Vict. c. 17 (amended by 30 & 31 Vict. c. 35), no indictment for perjury or subornation of perjury can be found by any grand jury, unless the case has been taken before a justice, &c., as therein mentioned. (v)

It may be observed that it is the practice of the Central Crimiat the Central nal Court not to try an indictment for perjury arising out of a civil suit while that suit is in any way undetermined, except in cases in which the Court, where the suit is pending, postpones the decision of it in order that the criminal charge may first be disposed of. (w)

Refusal to

hear a charge of perjury

whilst a suit is pending.

Summary pro ceeding.

Evidence.

One witness not sufficient. One witness and corroborative evidence.

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Where there is
only one
direct witness

Where two justices refused to hear a charge of perjury alleged to have been committed in a suit in the Ecclesiastical Court, on the ground that that suit was still pending, the Court of Queen's Bench refused to grant a mandamus to compel them to hear the charge, and the Court seem to have thought that the course the justices had taken was the most likely to answer the ends of justice. (x)

Where a person made an affidavit in the Court of Common Pleas, and afterwards, being summoned to appear in Court, came there, and confessed it to be false, the Court recorded his confession, and ordered that he should be taken into custody, and put in the pillory. (y) In answer to the objections of the defendant's counsel to this proceeding, it was argued that it was fully justified under the 5 Eliz. c. 9, and that even if the Court could not punish the defendant by virtue of that statute, he might be punished at common law, on the ground that any Court might punish such a criminal for an offence committed in facie curiæ. (2)

The evidence of one witness is not sufficient to convict the defendant on an indictment for perjury; as in such case there would be only one oath against another. (a) But this rule must not be understood as establishing that two witnesses are necessary to disprove the fact sworn to by the defendant; for if any material circumstance be proved by other witnesses, in confirmation of the witness who gives the direct testimony of perjury, it may turn the scale, and warrant a conviction. (b)

Upon an indictment for perjury, Coleridge, J., is reported to have said, 'one witness in perjury is not sufficient, unless supthere must be ported by circumstantial evidence of the strongest kind; indeed, Lord Tenterden, C. J., was of opinion that two witnesses were necessary to a conviction.' (c) In a later case, where the evidence

strong evi

dence to confirm that wit

(u) Rex v. Bainton, 2 Str. 1088. Rex
v. Westiness, id. ibid. 1 Chit. Crim. L.
301. Rex v. Haynes, R. & M. N. P. R.
298, vol. 1, p. 51.

(v) See the Acts, vol. 1, p. 2.
(w) Rex v. Ashburn, and Rex v.
Simmons, 8 C. & P. 50.

(x) Reg. v. Ingham, 14 Q. B. 396.
(y) Rex v. Thorogood, 8 Mod. 179.
(z) Id. ibid. ; and
Bushell's case,

Vaugh. 152, was cited.

(a) Reg. v. Muscot, 10 Mod. 193. 4 Black. Com. 358. Peake on Evid. 10. 1 Phil. on Evid. 151, 7th edit.

(b) Rex v. Lee, Mich. 6 Geo. 3. MS.

Bayley, J., 1 Phil. Evid. 152, 7th edit. ;
R. v. Shaw, L. & C. 579; 34 L. J.
M. C. 169.

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(c) Champney's case, 2 Lew. 258, and the same point is said to have been ruled by the same learned judge in Rex v. Wigley, ibid. note. And Mr. Starkie observes, And semble that the contradiction must be given by two direct witnesses, and that the negative supported by one witness, and by circumstantial evidence, would not be sufficient. It has been so held (ut audivi) by Lord Tenterden, C. J.' 3 Stark. Evid. 860, note (g).

to warrant a conviction.

of one witness went in support of all the assignments of perjury, ness in order and to confirm him another witness was examined as to a conversation between himself and the defendant, and some entries in the defendant's books were given in evidence; it was submitted that there was no evidence to go to the jury; that the rule is that a case of perjury cannot be submitted to the jury on the evidence of a single witness; and as to the evidence of confirmation, it was not enough that there should be some evidence in confirmation, as in an ordinary case at nisi prius, where some evidence is necessary to prevent a nonsuit; but it must be such evidence as, in the opinion of the judge, is really confirmatory in some important respect, and equivalent to the positive testimony of a second witness. Coleridge, J., 'I think that the case must go to the jury, but I also think without the slightest chance of a verdict for the crown. The rule that the testimony of a single witness is not sufficient to sustain an indictment for perjury, is not a mere technical rule, but a rule founded on substantial justice; and evidence confirmatory of that one witness, in some slight particulars only, is not sufficient to warrant a conviction.' (d)

as to making a

note.

An indictment for perjury committed on the trial of a civil bill Corroboration alleged that the prisoner, Thomas Towey, falsely swore that 'the note produced is not my handwriting, or any part of it, and the name "Thomas Towey" as a witness is not in my handwriting.' The note purported to bear the marks of Patrick and James Towey as makers of the note, and had on it, 'Witness present, Thomas Towey. The payee of the note could not read, but he identified the note, and swore that he saw Thomas Towey write on the paper, and saw Patrick and James put their marks on it. Another witness proved that he had subpoenaed Thomas Towey to appear at the sessions as a witness, and that the prisoner then said that there was no occasion to test him; that he would go to prove the note; and that at a meeting between the parties to try to settle the civil bill, on the payee of the note saying he had James Towey's note, and would take the law on it unless he signed a new one, Thomas said that he had been tested (subpoenaed) to come there, but that there was no occasion to test him; that he would prove the note. But the note was not produced at this meeting; and, upon a case reserved, it was held that this evidence was a sufficient corroboration of the evidence of the payee. The prisoner was the only witness to the note, and he could only prove it in his character as a witness, and, therefore, when he said he could prove it, it came to sufficient evidence that he was the witness to the note. (e)

that he owed

An indictment for perjury alleged that in the month of June, A statement 1851, the prosecutor had distrained upon the prisoner for certain by a prisoner arrears of rent, and that the prisoner on a trial at nisi prius falsely swore that there was only one quarter's rent due at the time of the said distress. On the trial for perjury the prosecutor positively swore to the fact of there being five quarters' rent due at the time

(d) Reg. v. Yates, C. & M. 132. See Reg. v. Parker, post, p. 80.

(e) Reg. v. Towey, 8 Cox, C. C. 328. The payee was cross-examined to show that there was another paper written by

the prisoner, which the payee could not
distinguish from the note; but Hayes,
J., observed that the jury had found that
the prisoner spoke of the note.'

certain rent is no corroboration of the

evidence of a witness that a

larger amount

of the said distress; and produced his books by which he refreshed of rent was due his memory; and for the purpose of corroborating his statement

a year after

that statement

was made.

Virrier's case.
Confirmation

on two out of
three assign-

and showing by the oaths of two witnesses the falsity of the matter sworn to, the son of the prosecutor deposed to a conversation with the prisoner in August, 1850, in which the prisoner admitted that three or four quarters of the said rent were then due. The jury convicted; but, upon a case reserved, the judges were unanimously of opinion that this was not sufficient corroboration. There was nothing in the evidence of the son relevant to the issue. There was a year's interval between the transaction he spoke of and the time when the distress was made, and the money might have been paid intermediately. The oath of the son was quite as consistent with the oath of the prisoner as with that of the prosecutor. In perjury there must be something to make the one believed rather than the other, and there was no such evidence in this case. (ƒ)

In one case where there were three assignments of perjury upon evidence relating to one and the same transaction, at one and the same time and place, it seems to have been considered that the ments of per- jury ought not to convict on one of the assignments, although jury. there were several witnesses who corroborated the witness who spoke to such assignment on the facts contained in the other assignments. The indictment stated that the defendant swore that Mr. B. and Mr. C. came to her husband's house, that Mr. C. said, 'I will give him the 67. at Christmas,' and Mr. B. shook hands with her, and put something into her hand, and told her to give it to her husband, and that it was a sovereign wrapped up in some paper; and Mr. C. told her he should not forget it was in his power to give her husband the 67. at Christmas. The assignments of perjury were, 1st, that Mr. C. did not say that he would give the 61. at Christmas; 2ndly, that Mr. B. did not put a sovereign into the hand of the defendant; and, 3rdly, that Mr. C. did not tell the defendant that he should not forget it was in his power to give her husband the 67. at Christmas. Evidence was given in support of all the assignments of perjury. Lord Denman, C. J., in summing up, said, that as to the second assignment the proof lay almost entirely in the evidence of one witness, and, therefore, he did not see how the jury could convict of the perjury imputed; but that on the others there was a distinct contradiction of the defendant's testimony by Mr. C., who was supposed to have offered the 67., and several other witnesses; and he left it to the jury to say whether there was not a strong body of evidence clearly supporting Mr. C.'s denial. (g)

(f) Reg. v. Boulter, 2 Den. C. C. 396. In Best's Pr. Ev. 440 it is observed, 'We apprehend that the old rule and reason of the matter are not satisfied unless the evidence of each witness has an existence and probative force of its own, independent of the other; so that, supposing the charge to be one of those in which the law allows condemnation on the oath of a single witness, the evidence of either would form a case proper to be left to a jury, or would at least raise a strong sus picion of the guilt of the defendant. See R. v. Shaw, 34 L. J. M. C. 169.

(9) Reg. v. Virrier, 12 Ad. & E. 317. The learned chief justice considered the most convenient mode of summing up the case to be to treat the second assignment as the first, and the first and third as one, and did so leave the case to the jury, who found a verdict of not guilty on the first assignment or perjury for want of sufficient evidence, and guilty on the second,' but said nothing on the third, and the verdict was entered accordingly. The chief justice did not at the time make any note of his summing up, but did so afterwards; and having a distinct

But where upon an indictment for perjury, alleged to have Gardiner's been committed in making a charge of an unnatural offence, in case. which the defendant had deposed that he saw the prosecutor committing the offence, and saw the flap of his trowsers unbuttoned, and that he was there five minutes; and to disprove this the prosecutor swore that he did not commit the offence, and that his trowsers had no flap on; and to confirm him his brother proved that at the time in question the prosecutor was only absent three minutes, and that the trowsers he had on, which were produced in court, had no flap; Patteson, J., held that the corroborative evidence was quite sufficient to go to the jury; and, upon a case reserved, the judges held the conviction right. (h) So where One witness' perjury was alleged to have been committed by the defendant, and a bill of who was an attorney, in an affidavit made by him to oppose a motion to refer the defendant's bill of costs to taxation, and to prove the perjury one witness was called, and in lieu of a second witness, it was proposed to put in the defendant's bill of costs delivered by him to the prosecutor; it was suggested that this was not sufficient, as the bill had not been delivered by the defendant on oath. Lord Denman, C. J., 'I have quite made up my mind that the bill delivered by the defendant is sufficient evidence, or that even a letter, written by the defendant, contradicting his statement on oath, would be sufficient to make it unnecessary to have a second witness.' (i)

costs of defendant.

as to the pay

Where a prisoner was indicted for falsely swearing that he had Insufficient paid J. Bland a certain sum of money on a particular occasion, corroboration and Bland swore that he received the money in packages, and ment of afterwards counted it, and found it 77. short; and the only cor- money. roboration of his statement was by another person, who also counted it, but had not been present when the money was received; it was held that this was no corroboration at all. (j)

child.

An indictment alleged that the prisoner falsely swore at a petty A statement' sessions that D. Rees was the father of her illegitimate child. A by a mother of witness other than D. Rees proved that the prisoner had said that a bastard D. Rees had never touched her clothes at a time when she generally denied being in the family way; and Martin, B., thought that though, under some circumstances, such a statement might have been a sufficient corroboration of the evidence of D. Rees, yet this negation was so far a part of the general denial that the jury could not safely convict upon it alone. (k)

A count alleged that the prisoner falsely swore that she had shown to one Cuthbert certain invoices bearing certain dates. Cuthbert swore that the prisoner had not shown him the invoices

remembrance of it, and no doubt of the jury's intention, he (on summons) allowed the postea to be amended by entering a verdict of 'guilty' on the first and third assignments, and 'not guilty' on the second; but the Court afterwards held that the amendment ought not to have been made, there being no note or memorandum of the judge or other document to amend by.

(h) Reg. v. Gardiner, 2 Moo. C. C. R. 95. See a fuller statement of this case, ante, p. 52, et seq.

(1) Rex r. Mayhew, 6 C. & P. 315.

(j) Reg. v. Braithwaite, 1 F. & F. 638, 8 Cox, C. C. 444. Watson, B., and Hill, J. In the latter report it is stated that the prosecutor took it without counting it, and carried it to a Mrs. Watson's, and counted it over.' In the former The prosecutor took it without counting it, and carried it to an adjacent lane, where he counted a part of it, and found it wrong; he then gave it to a Mrs. Watson, and asked her to count it over.' Mrs. Watson was the witness called to corroborate Bland.

(k) Reg. v. Owen, 6 Cox, C. C. 105.

A witness

corroboratea by his own

memorandum.

Knill's

s case.

oath of the defendant.

she had sworn to; but that she had shown others, and he produced a memorandum, he had made privately at the time, of the dates of the invoices, which showed that they were not the same as those sworn to by the prisoner; Cockburn, C. J., held the private memorandum a sufficient corroboration. (l)

In a case where the defendant had been convicted of perjury, Contradictory charged in the indictment to have been committed in an examination before the House of Lords, and the only evidence was a contradictory examination of the defendant before a committee of the House of Commons, application was made for a new trial, on the ground that in perjury two witnesses were necessary, whereas in that case only one witness had been adduced to prove the corpus delicti, namely, the witness who deposed to the contradictory evidence given by the defendant before the committee of the House of Commons; and, further, it was insisted, that mere proof of a contradictory statement by the defendant on another occasion was not sufficient, without other circumstances, showing a corrupt motive, and negativing the probability of any mistake. But the Court held that the evidence was sufficient, the contradiction being by the party himself, and that the jury might infer the motive from the circumstances; and the rule was refused. (m) And the same principle appears to have been acted upon in a former case. The defendant had first made his information upon oath before a justice of the peace, that three women were concerned in a riot at his mill (which was dismantled by a mob on account of the price of corn), and afterwards, at the sessions, when the rioters were indicted, he was examined concerning those women, and (having been tampered with in their favour) he then swore they were not in the riot. There was no other evidence on the trial of the defendant for this perjury, to prove that the women were in the riot (which was the perjury assigned), but the defendant's own original information on oath, which was produced and read, and by which he had sworn that they were in the riot. And the judge thought this evidence sufficient, and the defendant was convicted and transported. (n) And with respect to this evidence, it has been observed, that when the same person has by opposite oaths asserted and denied the same fact, the one seems sufficient to disprove the other; and with respect to the defendant (who cannot contradict what he himself has sworn) is a clear and decisive proof, and will warrant the jury in convicting him on either, for whichsoever is given in evidence to disprove the other, it can hardly be in the

(Reg. v. Webster, 1 F. & F. 515. If this case is correctly reported, it deserves reconsideration. The memorandum was not itself admissible, and could only be used to refresh the memory of the wit ness; so that the whole statement rested on his single oath; and, even if the memorandum had been admissible, it would only have been the written statement of the witness and not on oath; and the time when it was made and the veracity of its statements must have rested on his single oath. See Rex v. Lara, ante, vol. 2, p. 521, in support of this reasoning. In Reg. v. Boulter, supra, p. 74, it was not

even suggested that the prosecutor's books could be used to corroborate his evidence.

(m) Rex v. Knill, 5 B. & A. 929, note (a). In Reg. v. Hook, infra, p. 79, Pollock, C. B., doubted whether any conviction would now be permitted in such a case as Rex v. Knill.

(n) Anon. cor. Yates, J., Lancaster Sum. Ass. 1764. And afterwards, Lord Mansfield, C. J., and Wilmot, J., and Aston, J., to whom Yates, J., stated the reasons of his judgment, concurred in his opinion. Notes to Rex v. Harris, 5 B. & A. 939, MS. Bayley, J.

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