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ridge, J., said, 'This might have been the
original information. Might it not be that
this statement to the magistrates was the
charge ? ' And it is conceived that this
was the correct view of the case. In cases
of felony and misdemeanor it is a very
common practice for the party complain-
ing to state the facts to the magistrate's
clerk, who takes them down in the shape
of an informatioti ; such information , is
then taken to the magistrate, and the
complainant sworn to the truth of it : in
such cases it is conceived the making the
charge before the magistrate, and the
making the deposition, is one and the
same thing ; it could not, therefore, be
averred and proved that the party made



the charge, and in support of it made
the deposition. See^Caudle v. Seymour, 1
Q. B. 889, where some strong observations
were made against the propriety of such
a practice. It may, however, be ques-
tionable whether such a mode of taking
the information would afford any ground
of defence to the party who was sworn to
its truth. It may be observed, also, that
although it may admit of doubt whether
this deposition disclosed a felony, yet as it
clearly showed an assault, the magistrate
had jurisdiction to administer an oath.
In Reg. v. Bradley, Stafford Spr. Ass.
1844. MSS. C. S. G. Coleridge, J., said,
that in the discussion of Reg. v. Gardiner,
infra, considerable doubts were enter-
tained among the judges whether Beg. v.
Pearson was rightly decided.



56 Of Perjury, <§-e. — Indictment [book v.

of them as well as the flap had been unbuttoned.' This count
contained no averment as to the materiality of any of. the
matters deposed to. It contained several assignments of perjury.
Those on which the prisoner was found guilty were as follows: — ■
' Whereas in iaet the said C. F. E. then and there had not the
Map of his trousers unbuttoned or hanging down. And whereas
the said C. F. E. had not then and there, or at any other time or
place whilst standing behind the said donkey, or any other donkey,
the flap of his trowsers unbuttoned, and hanging down, nor had
the trowsers the said C. F. E. then wore any flap whatsoever.
And whereas the said C. F.E. did not appear to the said It. G.
to be, nor was he, then and there, or at any other time, or at any
other place, in the actual commission of that detestable crime, &c.,
with the female donkey aforesaid, or with any other animal, or in
any other manner whatsoever. And whereas the said C. F. E. did
not remain in that situation for about five minutes, nor did the
said donkey hick the said C. F. E.'s leg, nor did, &c. &c.' Here
followed a number of other averments, which were not proved for
want of two witnesses. The third count was the same as the
first, except that it stated the prisoner's intention to be, to subject
( '. F. E. to the punishment inflicted on persons guilty of misde-
meanors, and the innuendo was, that C. F. E. was attempting to
commit the offence. The seventh count stated, that the prisoner,
intending to aggrieve C. F. E., ' came before Mr. Itawlinson, and
was sworn (he having authority), and falsely, &c, did depose,
swear, charge, and give the said justice to be informed that the
said C. V. E. upon, &c, had a venereal affair with a certain
animal called a donkey, and feloniously and against the order of
nature did commit and perpetrate that detestable and abominable
crime. &c, with the said donkey. And further (it being then
and there material to the inquiry into the said charge and infor-
mation to know the state of the said C. F. E.'s dress at the time
the alleged offence was so charged to have been committed as
aforesaid) that he, the said It. G., then and there saw that the said
C. F. E. then and there had the flap of his trowsers unbuttoned
and hanging down, and that he, the said It. G., then and there
saw the inside of the said flap ; wdiereas the said It. G. did not
then and there, or at any time, or at any place, see the said C. F. 10.
[635] U | ailv time in the act of having a venereal affair with a donkey,
or with any other animal whatsoever, nor did the said C F. E.
then, or at any time, or at any place, or in any manner commit,
nor was the said ('. k. E. at any time, or at any place, or in any
manner in tin- act of committing that detestable and abominable
crime. And whereas the -aid \\.(\. did not then and there see
the ilap of his, the .-aid ( '. V. E.'s, trowsers unbuttoned or hang-
in:: down, DOT was the flap of the said C. F. E.'s trowsers then
and there unbuttoned or hanging down, nor did the said R. G.
then and there Bee the inside of the flap of the said trowsers. The

information signed by the pris r was put in, and it was proved

that he was duly -worn, and that the charge was dismissed. The
two witnesses, produced to the facts, were C. F. E., a lad of
fifteen, and his elder brother, J. II. E. They swore that they
went together to the field, J. II. E. having a gun; that they
.-poke of going to Chipping Norton, and that Charles went to sec



CHAP, i.] Of Perjury, fyc. — Indictment 57

whether the donkey was able to go to Chipping Norton, ami
parted from his brother for that purpose — that he was abs< ni
three minutes — that the trowscrs he had on, which wore produced
in court, had no flap. These were the only facts to which they
both spoke. C. F. E. fully negatived what the prisoner had sworn
to, in a manner quite satisfactory to the jury. J. II. E. also
stated that he was about forty yards from the ox-pens — that he
had his back towards them — that if he had turned round he coidd
have seen them and the Avail, and must have seen if any one was
looking over it, but he did not turn round. It was objected, first,
that the first and third counts did not distinctly show any pro-
ceeding pending before the magistrate ; that they ought to have
averred directly that a charge was pending. Reg. v. Pearson, (m)
But Patteson, J., thought that case distinguishable, because of
the words ' upon an information and examination,' &c. (?i) Second,
that the flap of the trowscrs being unbuttoned did not appear on
the face of the counts to be material, and there was no averment
of its materiality. The same objection applied to the precise time
of five minutes. Third, that the assignment of perjury as to the
main charge was too large, because it denied all animals, and all
times and places. Fourth, as to the first count, that the language
used by the prisoner as there set out, did not import that a felony
Avas committed, but only an attempt. These objections were
urged in arrest of judgment. Fifth, as to the seventh count, the
first objection to the first and third counts was urged. Sixth, to
the same count it was urged that, although in that count the state
of C. F. E.'s dress was averred to be material, yet, that by such
averment Avas meant — not whether the flap of his troAvsers was
unbuttoned — but the trowsers generally. Seventh, that the
seventh count alleged, that the prisoner charged the capital
offence, whereas, by his information, he appeared to have charged
only an attempt. The sixth and seventh objections Avere taken
before the verdict, and did not apply in arrest of judgment, as
Avas also the objection, whether the evidence of J. H. E. Avent to
any material fact sufficient to satisfy the rule as to two witnesses
in cases of perjury. On all these questions, the learned judge
requested the opinion of the judges, and all the judges present
held the conviction good on the seventh count, and most of them [636j
appeared to think it good on all the others, (o)

Where an indictment stated that ' heretofore, to wit, on, &c., Insufficient
at, &c, before M.G. and T. H. H., tAvo of the justices, &c, came allegation of
one J. Osborne, and then and there exhibited to and before the £fc£na£i
said M. G. and T. H. H., so being such justices as aforesaid, a on oath.
certain information upon oath, and then and there informed the
said justices ' that certain quantities of stolen silk Avere found in
a certain house; it was held, that this allegation did not suffi-
ciently show that the oath was taken before the said justices, as it
was consistent with the allegation that the oath might have been
taken before some other justices. (j))

Where a count, which charged perjury in an affidavit to hold Affidavit to

(m) Ante, p. 55. 95. 8 C. & P. 737.

(«) The present indictment is in the (/>) Rep. v. Goodfellow, MSS. C. S. G.

same form as the one in 4 Wentw. 244. and C. & M. 569. Patteson, J., and

2 Chilty's Crim. Law, 443. Cresswell, J.

(o) lleg. v. Gardiner, 2 M. C. C. R.



58

hold to bail
before issuing
the writ.

Indictment for
perjury in an
affidavit under
an inter-
pleader rule,
must allege
that there was
an application
to the court.



Writ of in-
quiry issued
out of B. R.,
returnable in

c.r.



[637]
Indictment for
perjury before
commissioners
of bankrupt.



Of Perjury, fyc. — Indictment. [book v.

to bail, did not state that a writ of summons had been issued when
the affidavit was sworn, it was held good ; for the affidavit may be
sworn before the issuing of the writ, (q)

Where an indictment for perjury committed under the Inter-
pleader Act set out the issues joined in the Court of Exchequer
between A. B. and C. I)., the trial at Westminster, the verdict
for the plaintiffs, the judgment, the writ of fieri facias consequent
thereon to the sheriff of Somersetshire, dated the 5th of June,
1841, the warrant, the seizure of the goods of C. D., and the
notice on the part of the prisoner to the sheriff not to sell the
goods so seized, but to deliver them up to him, the same being
his property; and then charged that the prisoner came before a
commissioner, and produced an affidavit in writing, and swore to
the truth of the matter contained in it; and the affidavit was,
that the prisoner having heard that CD. had certain goods (those
seized under the fieri facias of the 5th of June), bought them and
paid for them on the 1st of June. The sale and purchase were
thru negatived, and this was the perjury charged. It was sub-
mitted that, as there was no allegation that any application had
been made under the Interpleader Act, it did not appear that the
affidavit was made in a judicial proceeding ; and Coleridge, J.,
held the objection fatal ; as for anything that appeared this was a
voluntary oath, and not made in any judicial proceeding, (r)

Where an indictment for perjury alleged that a certain cause
had been depending in the King's Bench, and that such proceed-
ings were had, that a writ of inquiry was duly issued out of the
said court, directed to the sheriffs of London to inquire, &c, and
that the said sheriffs should make appear the inquisition which
they should take thereof before the justices of our said Lord the
King at Westminster, and then assigned perjury on the taking of
the said inquisition before the secondary ; the Court of King's
Bench seem to have been of opinion that the indictment was bad,
as it appeared that the perjury was committed coram non judice ;
lor the writ of inquiry was issued out of the King's Bench, and
made returnable in the Common Pleas, and therefore the secon-
dary had no jurisdiction to administer the oath, (s)

It should seem that an indictment for perjury committed before
commissioners of bankrupt in an examination touching the estate
of the bankrupt, should allege that there was a trading, petitioning
creditor's debt, and act of bankruptcy, (t) But if the indictment
were for perjury committed in the preliminary proceedings before
the commissioners to ascertain whether the party should be ad-
judged bankrupt or not. it should seem that an indictment would
ood, although it omitted to state that there was a good peti-
tioning creditor's debt. ( //)



(<D Kin- v. Reg. l-t Q. B. 81.
C. C. 501.
(r) Reg. '•. Bishop, C. & M. 802,
Csi Pippet v. Hearn,

in mi action for a ma-
licious prosecution for perjury, ami the
first count set ont tin/ indictment for per-
ted in the text, ami the court
held that the count was good, for where a
tn ml for
a crime lie is liable to an action lor it,



although the indictment be defective.

(t) Hex '•. Jones, 4 B. & Ad. 345, ante,
vol. 2, p. 528. Reg. v. Bwington, C.&M.
S19, post, p. 92. The second count ia
this case alleged that a fiat 'duly issued '
against the bankrupt, and it was ohjectcd
that it was bad because it did not allege
any petitioning creditor's debtor act of
bankruptcy, ami Rex v. Jones was relied
upon, hut the point was not decided.

(k) Keg. v. Ewington, supra.



CHAP, i.] Of Perjury, eye. — Indictment.

In an indictment for perjury in an affidavit it is sufficient to
state that the defendant was sworn before A. 13. (A. 1>. having
power to administer an oath) without stating the nature of A. 1>.">
authority. An indictment for perjury in an affidavit alleged thai
the defendant did take his corporal oath before F. J. Chell (he the
said F. J. Chell then and there having sufficient and competent
power and authority to administer the said oath to the defendant
in that behalf) and that the defendant did before the said F. J.
Chell, as such commissioner as aforesaid, depose, &c. It was con-
tended, in arrest of judgment, that the indictment was bad, as it
did not describe the official station of the person before whom the
defendant was sworn. It was, indeed, stated that he made affi-
davit of certain matters before F. J. Chell, as such commissioner
as aforesaid ; but he had not been before mentioned as a commis-
sioner, and therefore that averment could not cure the defect.
The 23 Geo. 2, c. 11, made it unnecessary to set out the commis-
sion of the person before whom the oath was taken, but that did
not dispense with the necessity of showing the nature of his office.
Abbott, C. J., ' Looking at the Act of Parliament, 23 Geo. 2,
c. 11, we find that all that is required to be set out in indictments
for perjury is the substance of the offence charged, and by what
court or before whom the oath was taken, averring such court or
person to have competent authority to administer the same, with-
out setting forth the commission or authority of the court or
person before whom the perjury was committed. It is, therefore,
to be considered whether the present indictment has set forth all
that is required by the statute. It sets forth the substance of the
matter sworn, the person before whom the oath was taken, and
avers that he had authority to administer it. The indictment does,
therefore, contain all that is required by the words of the statute ;
and taking into consideration the object of the Act, which was
framed to remove the difficulties before felt by reason of the aver-
ments and matters which were visually set out in indictments for
perjury, we ought not to require more than the words of the le-
gislature have made necessary. When a case of this sort comes
on for trial, the prosecutor must prove the situation of the person
before whom the oath was taken, and the nature of his authority.
I am, therefore, of opinion, that the indictment is sufficient if it
contains the name of the person, if the defendant was sworn be-
fore a person, or of the court, if he was sworn before a court.
There is not, then, any reason for granting this application.' (r)



59

If an indict-
ment state
that the party
had authority
to administer
the oath, it ia
sufficient with-
out Bhowing
the nature of
the authority.



[63S]



(v) Hex v. Callanan, 6 B, & C. 102.
9 1), & R 97. This case having been
much relied upon in the following case,
and the record examined, I have thought
it right to insert the following statement
of the first count, which I took from the
record. The indictment stated that C. C,
contriving and intending to injure one
T. Stevens, and in order to obtain a rule
of the court of B. It., whereby it might
be ordered by the said court that the said
T. S. should show cause why a certain
judgment signed on a warrant of attorney
in a cause in the said court of Stevens
against Callanan, and the execution issued
thereon should not be set aside, and the



said warrant of attorney be delivered up
to be cancelled, and why the proceeds of
the said execution should not be restored
to the said C. C, and why the said T. S.
should not pay the costs of that appli-
cation, and that in the meantime the said
proceeds should remain in the hands of the
sheriff of the county of Middlesex, came
in his proper person, &c.,on, &c,, at, &c.
before F. J. Chell, gentleman, and the
said defendant then and there, to wit, on,
&c., at, &c., was duly sworn, and did
take his corporal oath upon the Holy
Gospel of God before the said F. J. Chell
(he the said F. J. Chell then and there
having sufficient and competent power



GO

Indictment for
perjury on an
appeal before
commissioners
of the assessed
taxes must
show that the
appeal was
one they had
jurisdiction to
try, in order
to show they
had authority

to administer

the oath.



Of Perjury, SfC. — Indictment.



[book y.



[639]

It is sufficient
tu allege that
u county court
judge had
competent
authority to
administer the
oath without
alleging that
rase was
within the
jurisdiction of
the judge.



This case was reconsidered in the following ease: — The indict-
ment stated that at the time of the taking of the false oath by
J. O. hereinafter mentioned, R. L., F. D. P., and II. S. G., were
commissioners acting in the execution of certain Acts of Parlia-
ment relating to the duties of assessed taxes in and for the district
of the hundred of Knighton, in the county of W., and thereupon
heretofore, to wit, on, &c, at, &C,in the district and county afore-
said (at a meeting then and there held by the commissioners
aforesaid for the purpose of hearing and determining appeals
against the certificate or supplementary charges made by one J. L.,
crown surveyor in pursuance of the said Acts), a certain appeal of
one W. H. of C, in the district and county aforesaid, in due form
of law came on to be heard. The indictment then averred that
the defendant on, &c, at, &c, appeared before the said commis-
sioner- as a witness for and on the behalf of the said W. H., on
the hearing of the said appeal, and was then and there sworn,
&C, before the said R. L., F. D. P., and H. S. G., so being such
commissioners as aforesaid, that the evidence which he the de-
fendant should give upon the hearing of the said appeal should be
the truth and nothing but the truth (they the said commissioners
then and there having authority to administer the said oath, &c).
The indictment then proceeded to aver the materiality, the giving
the evidence, &c. The defendant having been convicted, a writ
of error was brought, and one of the errors assigned was, that it
did not appear that the said appeal was an appeal against such a
certificate as in the said indictment mentioned, or that the same
appeal was such an appeal as the said commissioners or any of
them had power, authority, or jurisdiction to determine, and if they
had no such power, &c, they had no jurisdiction to administer the
said oath ; and the Court of Queen's Bench held that the indict-
ment was bad upon this ground, and the judgment was reversed, (w)

Where an indictment alleged that ' a certain action of contract '
was j lending in a county court, and then alleged that the de-
fendant was duly sworn before the judge of the said court ' then
and there having sufficient and competent authority to administer
the said oath to her in that behalf,' it was objected that there was
no averment that the said action of contract was one over which
the county court had jurisdiction, and that no intendment could be
made in favour of an inferior court that the action pending in it
was one over which the court had jurisdiction; but the Court of
Exchequer Chamber held that it did appear by necessary implica-
tion that the action was one oyer which the judge of the county
court had jurisdiction; for unless he had, he could not have had



and authority to administer the said oath
to the said C. C. in that behalf), and the
said C. ( '■ bi ing s " sworn b
falsely, Sec, did then and there before

tin: said F. J. < 'lull, a^ such commissioner
a^ aforesaid, depose, swear, and make

affidavit in writing, amongst other things,
in suh The indictment then

it the affidavit, which
amongsl other things, that C. C. had
applied to the said T. S. for B loan
ol £150, which T. S. had agri
let C. C. have upon having a moi
upon his, C. C.'s, hoase, and as a



collateral security a warrant of attorney
to accompany the said mortgage, that the
mortgage and warrant of attorney were
prepared for £250, although no more
than £\ 50 was advanced, &c. : ' all which
said several matters and things so de-
posed and sworn by the said C. C. as
aforesaid were, and each of them was
material for the obtaining and supporting
the said rule.' C. S. G.

(w) Keg. v. Overton, 4 Q. B. 83. Many
other errors were assigned, but not deter-
mined by the court.



chap. I.] Of Perjury, §e. — Indictment.

power to administer the oath, so as to be valid and binding, which
is the true meaning of the phrase. The alleged defect, therefore,
in the averment of the substance of the charge was supplied l>y
necessary implication by the averment of the competency of au-
thority in the judge to administer the oath. (#)

So where an indictment for perjury at a quarter sessions in
Ireland alleged that a certain civil bill came on to be tried in due
form of law before an assistant barrister, and alleged the oath to
have been taken before the said assistant barrister, he having
sufficient and competent authority to administer the said oath ; it
was objected that the indictment ought to have stated that the
civil bill was for a cause of action within the jurisdiction of the
court. But, on a case reserved, it was held, on the authority of
the preceding case, that the indictment was good. Qy)

An indictment for perjury alleged that a petition for protection
from process was, under and in pursuance of the 5 8c 6 Vict,
c. 116, 7 & 8 Vict, c. 96, and 10 & 11 Vict. c. 102, filed and pre-
sented in the county court of Staffordshire at W. by the prisoner ;
and that the prisoner afterwards duly received an order for protec-
tion from process, and that afterwards, whilst the proceedings upon
and in respect of the said insolvency were pending in the said
county court, to wit, at the time of filing the said petition and
schedule, the prisoner came before H. K., at the court at W., and
within the jurisdiction aforesaid, for the purpose of making an
affidavit and verifying on oath his said petition and schedule (H. K.
being a commissioner to administer oaths in chancery, and duly
empowered to act in the matter of the said insolvency, and to take
the oath of the prisoner), and was duly sworn and took his oath
that the affidavit he then made was true (H. K. having competent
authority to administer the said oath). The indictment then al-
leged the materiality of certain matter, and that the prisoner falsely
swore in the usual way. It was objected on error that the indict-
ment did not show that there was jurisdiction to administer the
oath, as it did not allege that the prisoner had resided within the
jurisdiction of the court for six calendar months next preceding
the filing of Ins petition, according to the 10 & 11 Vict. c. 102,
s. 6. But it was held that the indictment was good, (z)

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



61



An indictment
for perjury
against an
insolvent was
sufficient,
though it did
not allege that
he had resided
for six months
before the
filing of his
petition within
thejurisdiction
of the court.



Indictment
bad for not
showing that
a valid notice
of appeal had
been given
under the
Tax Acts.



O) Eeg. v. Lavey, 2 Den. C. C. 504.
17 Q. B. 496. See the indictment, 3 C. &
K. 26. Reg. v. Overton, supra, was
mainly relied on, in support of the objec-



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