Proof of the whole of the defendant's testimony. evidence that he had not sworn a material part of that which was set out, would not this have been fatal? Having taken upon you to state the substance and effect of what he swore, you are not bound down to precise words; but must you not prove that he swore in substance and effect the whole that you have stated? You aver that part of the defendant's evidence concerning the assurance given by Lord Headley to be material, and you have not proved that he swore to any such assurance. Did you ever know the rule reddendo singula singulis applied to a misrecital? Is there any authority to show that under secundum substantium you are not bound to prove the substance of what you state, as under secundum tenorem you are bound to prove the tenor? To hold otherwise would be to introduce a most dangerous latitude into criminal proceedings. I am decidedly of opinion that you have failed in the proof of a substantial allegation. It is essential to the security of innocence, that words set out in the record should be either literally or substantially proved. A person giving his assurance generally, and giving his assurance for the performance of a particular stipulation, are allowed to be entirely different. If a man swears falsely to several material questions, these may be included in distinct counts.' (d) It appears to have been ruled, that upon an indictment for perjury committed at the trial of a cause, the prosecutor must provethe whole of the defendant's testimony, (e) unless the perjury be assigned upon a point which first arose upon the defendant's cross-examination, in which case proof of the whole cross-examination has been ruled to be sufficient. (f) And the ground (d) Rex v. Leefe, 2 Campb. 134. The learned reporter says, 'I find no decision or dictum in the books as to the evidence of the words sworn which is necessary to support an indictment for perjury. For the general principles upon this subject, vide 2 Hawk. P. C. c. 46, ss. 34, 35, 36. Compagnon v. Martin, 2 Bl. Rep. 790.' The count upon which the question in this case turned, alleged that a committee was appointed and met to try the merits of a petition complaining of an undue election, that certain questions were ma terial, and that the defendant swore 'touching the said material questions, and the merits of the said petition,' in substance and effect as follows,-that he, by the directions of J. L., waited upon Lord H. and proposed to the said Lord H. that the said J. L. would decline upon the expenses being paid him, including the previous expenses of the day before; that Lord H. agreed that the said expenses should be paid, including the expenses that had been incurred at different inns in the town; that J. L.'s voters were to be applied to in consequence of that arrangement for the purpose of voting for the said Lord H., and that the defendant enumerated the expenses; that the defendant upon his return to the committee of the said J. L. communicated to them what had so passed between the said Lord H. and him; and that the said committee dispersed to carry the 80. said agreement into effect; and that the In per (e) Rex v. Jones, Peake, N. P. C. 37, Lord Kenyon, C. J. (f) Rex v. Dowlin, Peake, N. P. C. 170, Lord Kenyon, C. J. upon which proof of the whole of the examination or crossexamination was ruled to be necessary in these cases appears to have been, that possibly the defendant might have corrected in some part of such examinations any mistake he had made in other parts. But it is observed, that this doctrine of compelling the prosecutor to prove more than a prima facie case is an anomaly in the criminal law; that in general the party indicting is not bound to anticipate matters of defence, which it lies on the prisoner to bring forward; and that it does not seem that, in this case, the party indicted would sustain hardship in being compelled to show that he had corrected the part of his evidence assigned. (g) And it is said by another learned writer, that at most the rule seems to amount to this, that all the evidence given by the defendant, in reference to the particular fact on which perjury is assigned, ought to be proved. (h) And the rule hardly seems to be necessary for the protection of the defendant, as it will be open to him to cross-examine the witness by whom his statements upon oath are proved, whether he did not in some other parts of his evidence correct or explain those statements upon which the prosecution is founded, and unless the witness can positively deny any such correction or explanation, or if he admits that they may have occurred, the proof will probably be deemed insufficient for a conviction. And it will of course be open to the defendant to prove that any corrections or explanations were given by him in other parts of his evidence. (?) And it has since been held, upon a case reserved, that on an indictment for perjury committed on the trial of a cause, it is sufficient to go to the jury, if a witness states from recollection the evidence that the defendant gave, though he did not take it down in writing, and cannot say with certainty that it was all the evidence the defendant gave, if he can say with certainty that it was all he gave on that point, and that he said nothing to qualify it. (j) Where a prisoner is indicted for perjury in evidence given on the trial of a cause, it is only necessary for the prosecution to prove so much of that evidence as is relevant to the matter in issue on the trial for perjury; but if the prosecution prove the whole of his evidence, and it refers to any deed or other document, which is so mixed up with it, that it is necessary to be read in order to make the evidence intelligible, the prisoner is entitled to have it put in (g) 2 Chit. Crim. L. 312, referring to 1 Sid. 418, Rex v. Carr. (h) 3 Stark. Evid. 858. And the author further observes, that the rule even to this effect appears to be a doubtful one; for when it has once been proved that particular facts, positively and deliberately sworn to by the defendant in any part of his evidence, were falsely sworn to, it seems in principle to be incumbent on him to prove, if he can, that in other parts of his testimony he explained or qualified that which he had so sworn. (i) Rex v. Carr, 1 Sid. 418. (j) Rex v. Rowley, R. & M. C. C. R. 111, and R. & M. N. P. R. 229, where Littledale, J., is reported to have said, Proof of all that was given on the par ticular point is sufficient. The proseonly prove so much of the prisoner's evi cutor need dence as is relevant to the matter in question on the trial for perjury. Proof of au minister the oath. Acting as an officer suffi cient. and read for that purpose; but he is not entitled to require it to be regularly proved by calling the attesting witness or the like. (k) It is sufficient to support the averment that the party administhority to ad- tering the oath had competent authority for that purpose, to show in the first instance that he acted as a person having such authority. Thus, upon an indictment for perjury before a surrogate in the Ecclesiastical Court, it was ruled, that the fact of the person who administered the oath having acted as a surrogate was sufficient prima facie evidence of his having been duly appointed, and having authority to administer it. And Lord Ellenborough, C. J., said, "I think the fact of Dr. Parson having acted as surrogate is sufficient prima facie evidence that he was duly appointed and had competent authority to administer the oath. I cannot for this purpose make any distinction between the Ecclesiastical Courts and other jurisdictions. It is a general presumption of law, that a person acting in a public capacity is duly authorized so to do.' (1) But it was holden, in the same case, that upon its appearing that the surrogate was appointed contrary to the canon (which requires that no judicial act shall be speeded by any ecclesiastical judge, unless in the presence of the registrar or his deputy, or other persons by law allowed in that behalf), his appointment was a nullity, and the averment that he had authority to administer the oath was negatived. (m) So where perjury was assigned upon an affidavit sworn before Chell, a commissioner, &c., and it was proved that Chell acted as a special commissioner for taking the affidavits of parties in prison, or unable from sickness to attend before a judge; Patteson, J., held that this was sufficient evidence that Chell was a commissioner, and that it was not necessary to prove the commission under which the affidavit was taken, upon the general principle that a person acting as a public officer must be taken to have authority as such, and that a commissioner for taking affidavits came within that principle. (n) So where an affidavit was alleged to have been sworn before R. G. Whatley, a commissioner, then and there being duly authorized and empowered to take affidavits in the said county of G. in or concerning any cause depending in Her Majesty's Court of Exchequer,' and it was proved that Whatley had acted as a commissioner for taking affidavits in the Court of Exchequer for ten years; but had never seen his commission. He had, however, directed it to be applied for ten years before through his agent, and had been told by him that it had been granted; it was held that Whatley's acting as a commissioner was primâ facie evidence that he was so. (0) Acting as a judge of a county court. Where in order to prove an allegation in an indictment for perjury that a county court was duly constituted under the 9 & 10 Vict. c. 95, a Gazette was put in, but it turned out to be a wrong one; Maule, J., held that proof that the judge acted in the capa (k) Reg. v. Smith, 1 F. & F. 98, Erle, J. (7) Rex v. Verelst, 3 Campb. 432. Rex v. Cresswell, 2 Chit. Cr. L. 312. S. P. per Lord Ellenborough, C. J. (m) Rex v. Verelst, supra, (n) Rex v. Howard, 1 M. & Rob. 187. (0) Reg. v. Newton, 1 C. & K. 469. Atcherley, Serjt., after consulting Tindal, C. J. The defendant had requested Whatley to act as commissioner in taking this particular affidavit. city of a judge of the court, in pursuance of and under the County Courts Act, would suffice. (p) affidavit in the It has been held that an indictment for perjury in an affidavit Perjury in an sworn in the Insolvent Debtors Court by an insolvent, respecting insolvent the state of his property and expenditure, for the purpose of ob- court. taining an extended time to petition under the 7 Geo. 4, c. 57, s. 10, cannot be supported, without proving that the court by its practice required such an affidavit: and it was also held that such proof was not given by an officer of the court producing printed rules, purporting to be rules of the court, which he had obtained from the clerk of the rules, and was in the habit of delivering out as the rules of the court, but which were not otherwise shown to be sanctioned by the court; the officer professing to have no knowledge of the practice except from such printed rules. (q) The taking the oath must be proved as it is alleged. Therefore, if it be averred that the defendant was sworn upon the Holy Gospels, &c., and it turned out that he was sworn in some other manner, according to some particular custom, and not upon the Gospels, the variance will be fatal. (8) But where the allegation in an indictment was, that on the trial of an action the prisoner 'was duly sworn, and took his corporal oath on the Holy Gospel of God,' and the proof was that the witness was sworn and examined ; and it was objected that the particular mode of swearing must be proved, as the evidence given would apply to the oath of a Jew, or person of any other religion than the Christian; Littledale, J., held the evidence sufficient, as the ordinary mode of swearing was the one specified. (†) The recital of the place where the oath is administered in the jurat has always been considered as a sufficient proof that the oath was administered at the place named. (u) Where, therefore, perjury was assigned on an answer in chancery, and the defendant's signature to the answer, and that of the Master in Chancery to the jurat, were proved, and that Southampton Buildings, which the jurat recited as the place where the oath was administered, was in the county of Middlesex; Lord Tenterden, C. J., held that this was sufficient proof that the oath was administered in Middlesex. (v) So where on an indictment for perjury committed in an affidavit, the original affidavit was produced; and it was proved to be signed 'John Turner,' in the handwriting of the prisoner, and the jurat was 'Sworn in open court at Westminster Hall, the 10th day of June, 1846, By the court,' and it was proved that the words By the court' were in the handwriting of one of the masters of the court, by whom the jurats of affidavits are signed when the affidavits are sworn in court; it was objected that it should be shown that the master was in court when the prisoner was sworn before him. Erle, J., We have proof of the handwriting of the party sworn, and of the officer, who is authorized to administer the oath; The oath must be proved as alleged. The place stated in the evidence that jurat is the defendant was sworn there, but not conclusive. Upon an indictment for perjury against a witness examined as to a bankrupt's estate, a good peti tioning creditor's debt must be shown. Proof of the defendant and when an officer thus authorized writes under a proper jurat the words "By the court," I think that that is sufficient evidence that the affidavit was sworn before him, and properly sworn in court.' (w) But a variance as to the place of taking the oath will not be material, if it be proved to have been taken in the county where the defendant is indicted. (x) And upon an indictment in Middlesex, it may be shown that the oath was in fact taken in Middlesex, although the jurat state it to have been sworn in London. (y) On a trial in Michaelmas term, 52 Geo. 3, of an indictment against a bankrupt for perjury before the commissioners in passing his last examination under the bankrupt laws then in force, Lord Ellenborough said, 'I am strongly inclined to think that you ought to give strict evidence of the bankruptcy. Unless the defendant really was a bankrupt, the examination was unauthorized. It goes to the authority of the commissioners to administer the oath. Their authority takes its root, not in the commission, but in the bankruptcy. While the commission subsists its validity may be assumed for certain civil purposes; but when a criminal case occurs, unless the party was a bankrupt all falls to the ground. However, I will save the point.' (2) The indictment stated that A. P. carried on the business of a builder, and that he was indebted to W. B. in the sum of 100l. and upwards; that he committed an act of bankruptcy; that a fiat issued against him, on the petition of W. B.; that the commissioners adjudicated A. P. to be a bankrupt; that in the prosecution of the fiat it became material to inquire into the estate and effects of A. P.; and that at a meeting of the commissioners the defendant appeared before them as a witness, and was sworn, &c. It appeared that the debt due to W. B. was much less than 100%., but that there were two other creditors, to each of whom A. P. owed more than 100l.; therefore, under the 6 Geo. 4, c. 16 (the Bankrupt Act then in force), s. 18, the Lord Chancellor might, on application, have directed the substitution of a good petitioning creditor's debt for that of W. B., but that in fact this had not been done. It was objected that the defendant was entitled to be acquitted, as the averment that W. B. was a creditor to the amount of 100l. was not only not proved, but was disproved. The counsel for the crown cited Rex v. Raphael, (a) where Abbott, J., held, that on an indictment against a third person, examined before commissioners of bankrupt, their declaration that a party was a bankrupt is sufficient. The defendant having been convicted, the judges, upon a case reserved, held the conviction wrong. (b) On an indictment for perjury, in an answer in chancery, sworn (w) Reg. v. Turner, 2 C. & K. 732. (y) Rex v. Emden, 2 East, 437. 3 Stark. (*) R. v. Punshon, 3 Campb. 96. See R. v. Bullock, 1 Taunt. 71; see the present Bankrupt Acts, vol. 2, pp. 440, 446. (a) Manning's Ind. 232. 223. (b) Reg. v. Ewington, 2 M. C. C. R. C. & M. 319. In the course of the argument before the judges, Lord Abinger, C. B., said, 'You cannot dis pute the authority of the commissioners to take the preliminary proceedings under the fiat, to ascertain whether the party should be adjudged bankrupt or not. They were authorized to do that by the fiat of the Lord Chancellor; but you say that if there was no good petitioning creditor's debt, the commissioners had no authority to inquire and examine witnesses as to the bankrupt's property.' See vol. 2, pp. 440, 446. |