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. though the jury for some reason
or other may not have been convinced

thai the payment was made.

(m) Reg. v. Cooke, 2 Den. C.C. R 462.
Bee I; g. v. Britby, l Dun. C. C. 416.
• Inte, \"l. I, p. 574.

(n) Rej i K n ton, 6 Cox C. C. 393.
pton, J„ refused to reserve the


Rfig, V. Senior, I . & < '. 401.

chap, i.] Of Perjury at Common Law. \ 1

The 6 & 7 Will. 4, c. 65, s. 9, renders it necessary thai an infor- information
million under the 1 Will. 4, c. 32, the, Game Act, should be veri- " ,hl " ,l "'
fied on the oath of a credible witness before any proceeding is (ji '""' Art ,

i • n -l -I ii- i • n<)l properly

taken upon it tor summoning the party accused or compelling his verified,
appearance, and if this course has not been adopted, the justices
have no jurisdiction to hear the case ; and, consequently, a
person giving false evidence on such an occasion is not guilty of
perjury. ( p)

The oath must be material to the question depending : for if it [6oo]
be wholly foreign from the purpose, or altogether immaterial, and The oath
neither in any way pertinent to the matter in question, nor tend- J",'.'^ ',", ^ a "
ing to aggravate or extenuate the damages, nor likely to induce question dc-
the jury to give the readier credit to the substantial part of the pending,
evidence, it cannot amount to perjury, because it is wholly idle
and insignificant ; as, where a witness introduces his evidence,
with an impertinent preamble of a story concerning previous
facts, not at all relating to what is material, and is guilty of a
falsity as to such facts, (q) And it appears to have been deter-
mined, that where a witness, being asked by a judge whether A.
brought a certain number of sheep from one town to another
all together, answered, that he did so, whereas in truth A. did not
bring them all together, but part at one time and part at another ;
yet such witness was not guilty of perjury, because the substance
of the question was, whether A. did bring them at all or not, and
the manner of bringing them was only a circumstance. And that,
upon the same ground, where a witness, being asked whether a
particular sum of money were paid for two things in controversy
between the parties, answered that it was, whereas, in truth,
it was paid only for one of them by agreement, such witness
ought not to be punished for perjury ; because, as the case was, it
was not material whether the sum were paid for one or both. And
it is also said to have been resolved, that a witness wdio swore that
a man drew his dagger, and beat and wounded J. S., whereas in
truth he beat him with a staff, was not guilty of perjury, because
the beating only was material. (V)

But upon these decisions it is remarked, that perhaps in all these
cases it ought to be intended, that the question was put in such
a manner, that the witness might reasonably apprehend that the
sole design of putting it was to be informed of the substantial
part of it, which might induce him through inadvertency to take
no notice of the circumstantial part, and give a general answer to
the substantial ; for otherwise, if it appear plainly that the scope
of the question was to sift him as to his knowledge of the sub-
stance, by examining him strictly concerning the circumstances,
and he gave a particular and distinct account of the circumstances
which afterwards appears to be false ; surely he cannot but be
guilty of perjury, inasmuch as nothing can be more apt to incline
a jury to give credit to the substantial part of a man's evidence,

(p) Beg. i>. Sco'ton,5Q.B. 493. The in- not show that W. A. swore to the charge

formation in this case, after alleging that contained in the previous part.

O. M. informed the justices of a trespass (</) Hex v. Griepe, 1 Lord Raym. 256.

in pursuit of game, proceeded, 'and the Bac. Ab. tit. Perjury (A),

said information having been also verified (r) 2 Roll. 41, 42, 369. Iletl. 97. 1

upon the oath of W. A., another credible Hawk. P. C. c. t9, s. 8.
■u itness,' &c. ; but it was held that it did


If it is ( ir-
material, it is


not be
Bufficieni to
prove the
point in qucs-



- the
credit "t a

ss on


nation is
material. If,
therefore, a

• swears
on cross-
mination to

the lia!

. it is
material, it' his
credit would

tul li_V

the fuel <>! that
date being

Of Perjury at Common, Law. [book v.

than his appearing to have an exact and particular knowledge of
all the circumstances relating to it. {s) And it is spoken of as
a reasonable opinion, that a witness may be guilty of perjury in
respeel of a false oath concerning a mere circumstance, if such
oath have a plain tendency to corroborate the more material part
of the evidence; as if, in trespass for spoiling the plaintiff's elose
with the defendant's sheep, a witness swears that he saw such a
number of the defendant's sheep in the close; and being asked
how he knew them to be the defendant's, swears that he knew
them by Buch a mark, which he knew to be the defendant's mark,
whereas, in truth, the defendant never used any such mark, (t)
And it appears to have been holden not to be necessary that it
Bhould be shown to what degree the point in which a man is per-
jured was material to the issue, and that it. will be sufficient if the
poinl were circumstantially material. (//) And still less is it
ii, cessarj thai the evidence be sufficient for the plaintiff to recover
upon, Bince evidence may be very material, and yet not full
enough to prove directly the point in question, (u) Where A. ad-
vanced money to B. on two distinct mortgages, upon one of which
the security was insufficient, and B. assigned the equity of
redemption in both to C, who assigned the insufficient estate to
an insolvent, and filed a bill against A. to redeem the other, to
which bill A. put in his answer, and therein denied having had
notice of the assignment to the insolvent; it was holden that
the notice was a material fact upon which perjury might be
assigned. ( w)

An indictment for perjury committed before commissioners of
taxes on an appeal of W. Hewatt against a surcharge for a grey-
hound nsed by him on the 21th of November, averred that it was
a material question whether a certain receipt produced by the
prisoner on the hearing of the appeal was given to him before
the L2th of September then last past, and that the prisoner falsely
-wore that the receipt was given to him before the said 12th day
of September. At the commissioners' meeting, evidence was
given that Hewatt and the prisoner were coursing, on the 24th of
November, with two greyhounds, one of which had been Hewatt's,
wdio had no certificate. Hewatt, in support of his appeal against
a surcharge for this dog, said that the dog had been sold to the
prisoner long before, and called the prisoner as a witness. The
prisoner -wore thai he bought the dog on the 6th of September,
and produced a receipt for the purchase money bearing that date.
The surveyor asked him whether the receipt was given at the
lame of the 3ale, and he said it was not, bul a few days alter. On
being pressed, he Baiditwas given him before the 12th of Sep-
tember. The Burveyor pointed oul to him that the receipt bore
date the L8th of November, bo thai the prisoner must be mis-
taken; but the prisoner persisted, and swore positively that it
was given him before the 12th of September. Officers from the
Stamps proved thai the paper, on which the receipt was written,
was -tamped on the L8th of November, and could not have been
issued from the Stamp Office before thai day. It was objected

(*) 1 Hawk P. C. '. 69, 8. 8. < <n Eh \ v. Griepe, 1 Ld. Raym. 256.

\l.. tit. /'. \ ). 1 I: . Winnies, 2 Ld. Raym. 886.

II. .. I' I 69, 3 Beg v. {<<) \li x r. I'l-jiys, Peakc, N. P. R. 138,

Gardiner, pott, p. 57, et &eq. L rd Kenyon, C. J.

chap, i.] Of Perjury at Common Law. 13

that the materiality of the question as stated in the indictmenl
had not been shown: that the material question was whether the
dog was the prisoner's or Hewatt's on the 24th of" November, the
day of the coursing. It had not been disproved thai there had
been a sale of the dog on the 6th of September; and, if there
was, the time of giving the receipt, or even the fact of any receipt
having been given, was immaterial. The objection Mas over-
ruled, and on its being repeated on a case resers ed, Lord Abinger,
C.B., said, ' The whole matter turned on the credit of the witness,
and he tries to support his credit by false evidence. The receipt
is to confirm his evidence, and he swears it was given before the
12th. If that were true, the proof would be decisive.' Wil-
liams, J., ' The time when this receipt was given is a step in the
proof.' Lord Denman, C. J., ' Everything is material which
affects the credit of the witness.' Lord Abinger, C. B., 'Every
question, in cross-examination, which goes to the credit of the
witness, is material. If a witness were asked, in cross-examina-
tion, whether he was in such a place at such a time, and he denied
it, that would be material if it went to his credit. In the present
case, if they could not have contradicted the prisoner by the date
of the stamp, the receipt confirming his evidence would have made
out the case before the commissioners.' (x)

The prisoner was indicted for perjury before a court of requests, The day on
in a proceeding, under the interpleader clause of the Act esta- wllith a sale
blishiug the court, to ascertain whether a certain pig, which had ^°° ' b ' e acc
been seized under an execution issued against him on the 26th of material.
September, had been sold by him on the 5th of August to his
brother. The prisoner had sworn that he had sold the pig to his
brother on the 5th of August, and the allegation of perjury was,
that the pig was not sold by the prisoner to his brother on the
said 5 th day of August. It was contended that whether or not
the pig was sold on the 5th of August was not the material ques-
tion ; the material question was whether or not, at any time
before the issuing of execution, there had been a sale of the pig
by the prisoner to his brother. It was quite immaterial whether
the sale took place on a particular day, if it took place at some
time prior to the execution. Maule, J., ' I think that the ulti-
mate question to be decided is one thing, and yet that a material
question may be raised upon a matter collateral to that question.
I do not at all think that I can confine the law of perjury by making
that only perjury which is material to the only question to be
tried, otherwise persons might perjure themselves with impunity.
It might be a material question in a case of murder what coloured
coat a man had on : the colour of the pig, as I put it, might be
most material ; for suppose a person swore that this was a black
pig, and another witness swore it was white, it would have been
a material question whether the pig was black or white, although
the ultimate question would have been whether it was sold at
the time when it was alleged to have been sold.' (y)

(a-) Reg. v. Overton, C. & M. 655 2 M. cester where on an indictment for steal-

C. C. R. 263, a.d. 1842. See this case ing a rabbit the question turned on

on another point, post, p. 60. whether a rabbit found in the prisoner's

(y) Reg. v. Altass, 1 Cox C. C. 17, possession was a buck or doe rabbit, and

a.d. 1843. A case once occurred atGlou- numerous witnesses were called on each


Materiality of

evidence as to
entering a
close in pursuit
of game.

Materiality of

g by a
different name.


woman on a
trial for rape
as to a letter
Mfiit \>y her to
the pi i

Of Perjury at Common Law. [book v,

On the hearing of an information against Robinson, under the
1 Will. 4, c. 32, s. 30, for committing a trespass in pursuit of
game on a close in the occupation of T. Warren, a witness having
proved that he saw Robinson in Warren's field, and saw him
commit the offence there, the prisoner swore, on behalf of Robinson,
that he went with Robinson into a lane adjoining the field, and
that Robinson shot into the field, but did not enter it, and that
he himself went into the field, and fetched off what Robinson
killed. It was (intended that this evidence was not material;
because Robinson was equally guilty of an offence within the
1 Will. 4, c. 32, s. 30, whether he went into the field and shot
there. <>r whether he shot from the lane, and the prisoner in his
company went in and broughl away the game. But Williams, J.,
held that the evidence was material, (z)

An indietnicnt alleged that a cause of divorce or separation
was pending in the Court of Arches, which was promoted by 1^.
Kelly against her husband J. Kelly, and that J. Worley was
examined as a witness on behalf of E. Kelly, and that interroga-
tories were exhibited to Worley on behalf of J. Kelly, and that
Worley falsely swore that he never passed by the assumed names
of Abbott or Johnson, and it was proved that Worley was a wit-
ness on the part of the wife in the suit, and that interrogatories
on behalf of the husband, by way of cross-examination, were
exhibited to him, and that one of the questions put to him, with
tin' view of impeaching his credit, was 'Have you not passed by
the name of Abbott and also of Johnson ?' He answered, ' I never
ed by the assumed name of Abbott or Johnson.' He had,
however, for several years gone by the name of Abbott, and lived
with a woman who took that name, and two of his children by
her were christened in that name. Lord Deninan, C. J., ' I
do not think that the evidence of materiality is sufficient. I do
not mean to say that a false answer given, under such circum-
stances as those proved, might not support a charge of perjury;
but I am of opinion that in this case enough has not been shown
on the part of the prosecution to connect the false answer with
the issue on which the evidence was given. It might have been
material, bul we cannol clearly see that it was so." (a)

Where on a trial for rape the prosecutrix swore that she bad
never go1 one Williams to write a letter for her, which was shown
to her. and on a trial for perjury in so swearing, it was proved
that she had got William- to write a letter to the person she had
charged with the rape, Baying, Vl will do all I can to clear yon.'
1 I should nut have went to the police about the matter at all, if
I had nui been persuaded by' two persons whom she named, &c;
it was held that the evidence relating to the writing of this letter
was clearly material. {!>)

ride, and the verdict was, ' We find it was
a buck rabbit ' — a case well illustrating
Mr. .1. Blanle's remarks.

(*) l;< _■. r. g< otton, 9 Q. B. 198, a.i..
i - i i 'l'li question was argued in the
Q ];.. i.nt ti"t decided, tbecase going off
on anotbi r point Bee ante, p. LI.

a. 1 1. 1S49. As no part of the evidence, ex-
cept the Single question and answer, is
stated, i: is impossible to see what tiiis de-
cision amounts to.

(6) Beg. v, n-nnett, 2 Den. C. C. 240,
a d. 1851. Talfourd, J., on the trial, aud
approved by the judges on a case reserved
on oiln.r point .

chap, i.] Of Perjury at Common Law. 15

Upon the trial (A' Doe d. Richard v. Griffiths, a copy of the will If a witness

of William Joseph was tendered, and on objection to its admissi- ^T? 8

... , . J , . J r . . evidence as to

bility, the prisoner, who was then attorney tor the Lessor <•( the a document in

plaintiff, swore that he had examined the copy produced with the order that it

original will in the registry at Llandaff; and upon further objec- " K1} ° e . ad "

tion that the original will was inoperative in respect of a chattel evidence, this

interest, and that, therefore, either the probate ought to be pro- evidence is

duced, or the Act Book be proved, the prisoner further deposed 7,'i 'i?i'ii>

that he had examined the memorandum at the foot of the copy of document be

the will, with the entry in the Act Book at the same registry, inadmissible,

Upon this evidence the iudp-e offered to receive the document in or ." ot l mt " l

• i i i i • -wi l-ii • tt i -i evidence.

evidence, but the plain tin s counsel withdrew it. Upon the trial
for perjury, it was proved that the defendant had not made either
of the examinations which he had so deposed to, and he was
found guilty of perjury ; but Erie, J., reserved the question,
whether the false oath was relevant and material to the issue then
being tried, so as to amount to perjury ; as to which the following
were the facts : — On the trial of the ejectment, the lessor of the
plaintiff claimed to be entitled to a term, which had been granted
to William Joseph and Rees Morgan jointly ; and his title was
that Morgan had survived Joseph, and assigned the term to
Catherine, the widow of Joseph, who married Saunders, and on
her marriage made a settlement, under which the term vested in
him. The will of Joseph was irrelevant to this title ; but the
time of his death was a material fact, in order to prove that Mor-
gan survived him, and proof of the probate of the will of Joseph
would thus have been relevant evidence towards establishing the
plaintiff's title. The purpose of the plaintiff's counsel in tender-
ing the evidence, was to clear a doubt respecting the interest of
Joseph in the term, which was expected to be raised by the de-
fendant, and after the document was withdrawn, the survivor-
ship of Morgan to Joseph was clearly proved by other evidence
for the plaintiff; but the purpose for which the document was
offered was not stated on the trial of the ejectment. In the
registry at Llandaff it was the practice to indorse the act of pro-
bate on the original will, and the book called ' The Act Book '
contained a daily account of the matters of business completed
in the registry, and the memorandum at the foot of the docu-
ment in question was a copy of the entry in this book relating
to the probate of the will of Joseph, and not a copy of the act of
probate indorsed on the original will. It follows that the exami-
nation of the document tendered with the entry in the book called
' The Act Book ' at Llandaff, did not render the document legally
admissible as an examined copy of the act of probate. For the
prisoner, it was contended before the judges, that the question
was simply whether if a witness swears that he has examined a
document, not receivable in evidence, with a certain book, that can
be said to be material to the issue ? The time of Joseph's death
was in issue ; how could the fact that the witness swore that he
had examined a paper, not receivable in evidence, with a certain
book be material to the issue then being tried ? It is not enough
that the evidence has relation to the matter in issue ; it must be
material to the issue. It w T as contended, when the defendant
was tried, that what he had sworn was material for the jury, who

1G Of Perjury at Common Law. [book v.

were to act on the evidence before them; and, secondly, that it was
material for the judge, who was to say whether it was to be put
to the jury or not. But it could nut be material for the jury;
for it was withdrawn from their consideration, and they could
not legitimately act upon it ; and here the judge was not a judge
of fact, This evidence was not on any issue of fact which the
judge had to try. It was merely evidence to be given to the jury
through the judge. Lord Campbell, C.J., ' I am of opinion that
the conviction was right. There was false swearing in a judicial
proceeding. How can it be said not to have been material? It
was necessary to prove that Joseph died before Morgan. Although
the fact of Joseph's death had been proved by parol testimony,
if evidence was given to show that probate had been granted of
Joseph's will while Morgan was still living, it would have been
material in corroboration. With a view to have the copy of the
Avill received in evidence, the defendant swore falsely that he had
examined the paper produced with the original will at Llandaff,
and the entry on it with the entry in the Act Book ; and there-
upon the judge said, I will admit it, and if it had been read, it
would have gone to the jury with the rest of the evidence in the
case. Afterwards the document is withdrawn, but that cannot
purge the false swearing committed by the defendant. It has
been said that if the judge were w T rong in admitting the document
in evidence, the defendant could not be convicted, making the
offence of perjury depend upon whether a judge were right or
wrong in his decision on a question of laAv, and upon the decision
of some nice point in a bill of exceptions, which might ultimately
go to the House of Lords. We are all of opinion, as the evi-
dence was given in a judicial proceeding, with the vieAv to the
reception in evidence of a document, which was material, and as
that evidence was false, that all the ingredients necessary to con-
stitute the crime of perjury are present.' (c)
Reading over AYhere a count stated that it was a material cpaestion whether
a bond before a l )()n( ] was obtained by the fraud of the prisoner, and that the
prisoner falsely swore that he read over and explained it to the
obligor; it was objected that the omission to read over the bond
was no evidence of fraud, and therefore the statement was not
material ; but Erie, J., overruled the objection, as the reading
over the bond would be strong evidence t<> negative fraud, (rf)
Evidence of The prisoner was indicted for having falsely sworn before

the destruction justices, on a charge against the prosecutor for stealing three
'"""'" books of account, that she saw him destroy another book of

a cli ir^c of . •> ,

larceny. accounts, the prosecutor being also charged with embezzlement;

and Watson. !>.. held that the evidence was not material. Its
being calculated to influence the minds of the magistrates would
not be sufficient. It would be merely bad conduct in one in-
stance, inducing a probability of bad conduct in another. On

(c) Reg. v. l'liillpotts, 2 Den. C. C. 802. it is not necessary that it should have heen

3 C. & K. 185, a D. 1851. In the relevant and material to the issue being

coarse of the argument Maule, J., Baid, tried.' In Reg. v. Gibbon, infra, Pol-

' Here the defendant I >v m false lock, C. B., said that there was a great

oath endeavours to have a document re- deal of very good sense in Lord Camp-

ceived in evidence; it is, therefore, a bell's judgment in this case.

false oath in a judicial proceeding ; it is (d) Keg. p. Smith, 1 F. & F. 98, a.d.

material to that judicial proceeding ; and 1858.

chap. I.] Of Perjury at Common Law. 17

the charge for embezzlement it would have been material evi-
dence, (e)

An indictment alleged that a cause came on to be tried at the Materiality of
Assizes, and that the cause and all matters in difference between evidence on a
the parties were referred to an arbitrator, and assigned perjury cause ^^j ^
before hiui as to the signature of a paper. The arbitrator said matters in
that it was impossible for him so to distinguish between the dlfferi -' nce -
matters in the cause and the other matters in difference between
the parties, as to say definitively to which head the questions put
to and the answers given by the prisoner referred, and there was
no other evidence on the point. Gurney, Q. C, ' In all these
cases it is necessary to show that the matter alleged to be falsely
sworn was material, and that cannot be done in this case without
proof that it was material either to the action or to the other
matters in difference. The evidence failing to show this dis-
tinctly, the defendant must be acquitted.' (f)

An indictment for perjury, committed before a coroner while Materiality of
holding an inquest on the body of J. Conolly, alleged that it was evidence be-
a material question whether the deceased, the prisoner, or another
person had drank any intoxicating liquor after they had left a
police barrack and before they had arrived at a guard-room, and
that the prisoner falsely swore that none of them had tasted any
intoxicating liquor during that interval. This statement was
clearly shown to be false, but there were no grounds for supposing
that the deceased came to his death from anything except from
the effects of having been exposed to the night air. It was ob-
jected that the matter so falsely sworn was not material, and

Online LibraryWilliam Oldnall RussellA treatise on crimes and misdemeanors (Volume 3) → online text (page 7 of 146)