defendant's mouth to deny the truth of that evidence, as it came from himself. (0) defendant not evidence. But where the defendant was indicted for perjury, alleged to Contradictory have been committed on the trial of an indictment for larceny, and oath of the it appeared that the defendant had sworn to several material facts sufficient before the committing magistrate, but when he was called on the without other trial, denied the whole of what he had stated before the magistrate; and Rex v. Knill and Anon. (p) were cited to show that the contradiction by the oath before the magistrate would alone be sufficient evidence to convict the defendant; but Gurney, B., held, that it was not sufficient to prove that the defendant had, on two different occasions, given directly contradictory evidence, although he might have wilfully 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 the 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. (g) So where a prisoner was indicted for perjury in evidence given (0) From the Precedent-book of Chambre, J., cited 5 B. & A. ibid. (p) Supra, notes (m) and (n). (q) Reg. v. Wheatland, 8 C. & P. 238. Although at first sight this decision may seem at variance with those cited, perhaps it may not in fact be so. In Rex v. Knill, the Court held that 'the jury might infer the motive from the circumstances,' none of which are stated in the short minute of the case; some of them might have been such as to show that the one statement was false, or the other statement true. In the Anonymous case the defendant had been tampered with after his first examination, and the evidence of the tampering with the defendant might be such as to lead to the conclusion that his evidence on the trial was false. But supposing those cases to go the length of establishing the proposition, that the defendant's own evidence upon oath is sufficient to contradict the evidence on which the perjury is assigned, it is conceived they cannot be supported. The prosecutor may charge the perjury either on the one statement or on the other, and whichever he selects it is clear that the defendant could not avail himself of a plea of autrefois acquit, or convict in case he were subsequently indicted for the other, and therefore he might be twice put in jeopardy, and perhaps twice convicted for the same offence. The judgment in Rex v. Harris, 5 B. & Ald. 926, is conclusive to show that this is a good objection. Again, such evidence leaves it wholly uncertain which of the two statements is true; now it is a clear rule of criminal law that if the evidence on the part of the prosecution leaves it wholly uncertain whether the crime One state- erroneous. Contradictory statements of the prisoner, but not on oath. before a grand jury, and her deposition on the hearing of the charge before the committing magistrate was put in to show that the statement before the grand jury was false; Tindal, C. J., held, that further evidence must be given; for if the two contradictory statements on oath alone were proved, non constat which was the true one. (r) And where the prisoner was indicted for perjury, and it appeared that she had made two statements on oath, one of which was directly at variance with the other; Holroyd, J., is reported to have said, 'Although you may believe, that on one or other occasion she swore that which was not true, it is not a necessary consequence that she committed perjury; for there are cases in which a person might very honestly and conscientiously swear to a particular fact, from the best of his recollection and belief, and from other circumstances, at a subsequent time, be convinced that he was wrong, and swear to the reverse, without meaning to swear falsely either time. Again, if a person swears one thing at one time, and another at another, you cannot convict where it is not possible to tell which was the true and which was the false.' (8) The prisoner, a policeman, laid an information against a publican for keeping open his house after lawful hours on the fast day, and on the hearing of the information swore that he knew nothing of the matter, except what he had been told by another person, and that he did not see any person leave the publican's house after eleven' on the night in question. Perjury was assigned on this last allegation. It was proved by the clerk of the magistrates that the prisoner on laying the information said, he had caught the publican; he had last night seen four men leave his house after eleven; one of them he could swear to; it was Williamson; he knew him by his coat. Another witness proved that the prisoner, on another occasion, made the same statement to him. A third witness, Williamson, proved that, on a third occasion, the prisoner repeated the statement with the variation, 'One I can swear to; it was your brother.' It was proved that Williamson and others had left the house on that night after eleven. The prisoner on the hearing of the information acknowledged that he had offered to smash the case for 30s. He told another witness he should make the publican give him money to settle it; another witness heard him offer the publican to settle it for 17., saying he was risking perjury; and another witness proved that the prisoner owned he had received 10s. to smash the case, and was to have 10s. more. It was objected that there was no sufficient evidence, as these were only the statements of the prisoner not on oath against that on oath. But, on a case reserved, it was held that the conviction was right. In addition to the statements of the prisoner, there were strong confirmatory circumstances. The prisoner's offering to smash the case for one pound, his admitting that he (r) Reg. v. Hughes, 1 C. & K. 519. The false statement before the grand jury was that certain table-cloths were the property of the prisoner's son, and she had sworn before the magistrates that they were her husband's; and evidence of the state of the family was given to prove that the latter statement must be true; but Tindal, C. J., thought that there was so much doubt whether the prisoner might not have sworn under a misapprehension, that he directed an acquittal. (s) Mary Jackson's case, 1 Lew. 270. had received 10s. and was to receive 10s. more, and his talking of making the publican pay to settle it, are strong evidence to show that what he stated upon his oath was false, and that his statements not upon oath were true. (t) nesses speak In the following case, it was doubted whether the rule, which Mudie's case. requires two witnesses, was satisfied by several witnesses, each Several witsupporting a separate assignment of perjury, but no two speaking ing to several to the same assignment. Upon the trial of an indictment for assignments perjury, alleged to have been committed by an insolvent debtor of perjury. in falsely swearing to the correctness of his schedule, the defendant's account-book, given by him to the Insolvent Debtors Court, was put in, and several persons, whose names were specified in the indictment as debtors, and omitted in the schedule, appeared in the book as debtors to the defendant, and 'paid' was marked to their accounts in the defendant's writing. These persons were called, and stated that they did not pay until after the petition and schedule. It was objected that this was not sufficient evidence, inasmuch as it was only oath against oath, the defendant having sworn that the debts were paid; a single witness, with respect to each particular debt, swore that it was not paid at the particular time of the schedule. Lord Tenterden, C. J., I feel the force of the objection. It is a very important point whether the defendant's book, and the oath on one side, be not met by the oath of the witnesses on the other side. It would be very difficult to give any other evidence. I will not stop the case. If the defendant is convicted, you can move for a new trial.' (u) But it has since been held, that the rule which requires two witnesses, or one witness and some sufficient corroboration, applies to every assignment of perjury in an indictment. Where, therefore, an indictment contains several assignments of perjury, it is not sufficient to disprove each of them by one witness; but in order to convict on any one assignment, there must be either two witnesses, or one witness and corroborative evidence, to negative the truth of the matter contained in such assignment. The prisoner was indicted for perjury, alleged to have been committed in an affidavit to obtain a criminal information, in which he had sworn that he had paid all his debts, except two, as to which (t) Reg. v. Hook, D. & B. 606. Wightman, J., said, 'It is not necessary that there should be two independent witnesses to contradict the particular fact, if there be two pieces of evidence in direct contradiction. Here one piece of evidence is that the prisoner himself is proved to have made statements directly contrary to his statement on oath; that alone would not do; but in addition to that you have the oaths of other witnesses, which go to show that that which he stated when not upon oath was true; and therefore you have two pieces of evidence. I ought rather to put it that, instead of two witnesses being necessary to prove each fact, you must have the evidence of two persons giving evidence in contradietion to what has been sworn to by the prisoner; as, one witness who could prove, as in this case, that on other occa sions the prisoner had stated that wLich (u) Rex v. Mudie, 1 M. & Rob. 128. The rule applies to every separate as signment of perjury. To what the two witnesses extends. there was an explanation, and there were several assignments of perjury averring that he had not paid certain persons who were named (besides the two excepted ones), and such persons proved that they had not been paid, but only spoke to their respective debts not having been paid; Tindal, C. J., held that this was not sufficient, and that as to each debt there should be the testimony of two witnesses, or of one witness, and such confirmatory evidence as was equivalent to the testimony of a second witness. (v) The rule that the testimony of a single witness is insufficient to rule requiring warrant a conviction on a charge of perjury, is an arbitrary rule, founded upon the general apprehension that it would be unsafe to convict in a case where there is merely the oath of one man to be weighed against the oath of another; (w) and it should be observed, that this rule does not extend to all the facts, which are necessary to be proved on the trial of an indictment for perjury; but only to the proof of the falsity of the matter upon which the perjury is assigned. Thus, the holding of the court, the proceedings in it, the administering the oath, and even the evidence given by the defendant, may all be proved by one witness. (x) Although an assignment of perjury must be proved by two witnesses, it is not neces sary to prove by two wit nesses every fact which goes to make The prisoner was indicted for having falsely sworn that one Prosser never was out of his sight between the hours of 7 A.M. and 10 A.M. on a certain day, and two witnesses proved that they saw Prosser at 8 A.M. on that day near Lane's Fallow, but could not tell whether the prisoner was in sight of Prosser or not, as the fences were high. Another witness proved that at 9 A.M. the same morning he saw the prisoner alone and on foot at a place more than six miles from Lane's Fallow. It was objected that the assignment of perjury was not proved by two witnesses. out the assign- Patteson, J., 'It is necessary to have two witnesses to prove an assignment of perjury; but there need not be two witnesses to prove every fact necessary to make out an assignment of perjury. If the false swearing be that two persons were together at a certain time, and the assignment of perjury that they were not together at that time, evidence by one witness that at the time named the one was at London, and by another witness that the other was at York, would be a sufficient proof of the assignment of perjury.' (y) ment of perjury. An admission stands on the ground of a confession. A judge's notes are not admissible in Where a statement made by a prisoner is in the nature of an admission that a previous statement on oath is false, it is to be dealt with as a confession, and not as falling within the cases which have just been noticed. (≈) Where on an indictment for perjury committed, on a trial before a Queen's counsel at the assizes, his notes of the evidence, (v) Reg. v. Parker, Stamford Sum. Ass. 1842. MSS. C. S. G. and C. & M. 639. Where an assignment of perjury was in the vague terms that defendant falsely swore that he had not treated a certain person to brandy, &c., on a certain day, instead of in the definite terms, that he had not treated him at a particular public-house, on a certain day, it was held, that proof of treating at two public-houses by two distinct witnesses, was sufficient to sup port a conviction, because any witness of a treating at a separate time and place on the same day, was sufficient corroboration of the witness who spoke only to one act of treating. R. v. Hare, 13 Cox, C. C. 174. Denman, J. (w) 3 Stark. Evid. 859. (x) See 2 Hawk. P. C. c. 46, s. 10. (y) Reg. v. Roberts, 2 C. & K. 607. (z) See Reg. & Hook, D. & B. 606, per Byles, J. can only be used to refresh proved to be in his handwriting, were tendered in evidence; evidence, but Talfourd, J., held that they were inadmissible. (a) The incompetency of witnesses on the ground of interest is removed by the 6 & 7 Vict. c. 85, 14 & 15 Vict. c. 99, and 16 & 17 Vict. c. 83, and therefore the decisions on that subject are omitted. See these statutes, noticed post, Evidence. Where a bill of indictment was preferred against the defendant for perjury, alleged to have been committed on a trial at the Quarter Sessions, and it was proposed to examine one of the grand jury, who had acted as chairman of the Quarter Sessions at the trial at which the alleged perjury was committed, but that gentleman expressed a desire not to be examined as a witness, and the grand jury wished to know whether they ought to examine him or not; Patteson, J., held that they ought not to examine him. He was the president of a Court of Record, and it would be dangerous to allow such an examination, as the judges of England might be called upon to state what occurred before them in court. (b) the memory. Competency of witnesses. Chairman at Quarter Sesallowed to be examined as a sions not witness. In a case of perjury where the statements of the prisoner had Judge of a not been taken down and were proved from memory, some ob- county court. servations being made as to the judge of the county court who had tried the case not being called to prove his notes, though he was willing to appear; Byles, J., said that the judges of the superior courts ought not, of course, to be called upon to produce their notes. If he were subpoenaed for such a purpose he should certainly refuse to appear. But the same objection was not applicable to the judges of inferior courts: he saw no reason why they should not be called, especially where, as in this case, the judge was willing to appear. (c) and effect. It has been holden, that if a count in an indictment for perjury Proof of the undertake to set out continuously the substance and effect of what defendant the defendant swore when examined as a witness, it is necessary, in substance having sworn in support of this count, to prove that in substance and effect he swore the whole of that which is thus set out as his evidence, although the count contains several distinct assignments of perjury. It was urged in support of the prosecution that reddendo singula singulis, the defendant was charged with swearing separately in answer to all the questions that were mentioned. But Lord Ellenborough, C. J., said, 'Suppose you had undertaken to set out the tenor of what the defendant swore, and it should appear by the (a) Reg. v. Child, 5 Cox, C. C. 197. (b) Reg. v. Gazard, 8 C. & P. 595. In Rex v. Jones, 6 C. & P. 137, on an indictment for perjury the chairman of the Worcestershire Quarter Sessions proved what a witness swore on a trial before him at the Quarter Sessions. In Reg. v. Gazard, the chairman was required as a witness for the same purpose, and, not being examined, the bill was ignored. Mr. Starkie, after citing this case, adds a quare, without stating any reason for so doing. 3 Stark. Evid. 861. It may, however, have struck him that no sufficient reason could be assigned for the decision. It would, no doubt, be extremely inconvenient if the judges were called upon to give evidence as to what occurred before them in court, but the inconve VOL. III. nience in the case of chairmen of Quar- (c) Reg. v. Harvey, 8 Cox, C. C. 99. G |