The fact of indebtedness of some kind, however, on the part of the defendant, must be distinctly averred.1 (522.) Same, specifying another assignee. (523.) Fraudulent insolvency by a tax collector. First count. Embezzling creditor's property. (524.) Second count. Applying to his own use trust money, &c. (525.) Pledging goods consigned, and applying the proceeds to defend134 ant's use, under the Pennsylvania statute. (526.) Second count. Selling same, and applying to defendant's use the proceeds. (527.) Third count. Selling same for negotiable instrument. 1 State v. Robinson, 9 Foster, 274. BOOK III. OFFENCES AGAINST SOCIETY. CHAPTER XX. PERJURY. I. WILFUL. Offence must be wilful, § 1245. II. FALSE AND CORRUPT. "Falsely" is knowingly affirming without probable cause, § 1246. Probable cause is to be estimated from defendant's stand-point, § 1247. Admissible to prove mistake induced by erroneous representations, § 1248. And so when advised by counsel, §1249. General evil intent may constitute corruption, § 1250. III. OATH. Form of oath is immaterial, if legal, § 1251. No matter if oath was on voir dire, § 1252. IV. PARTY TO BE CHARGED. Two defendants cannot be joined, § 1253. Perjury though witness is incompetent, § 1254. And though he be a volunteer, § 1255. V. IN A COMPETENT COURT. The false swearing must have been before a competent court, § 1256. The court must have jurisdiction, § 1257. Proceedings need not have been strictly regular, § 1258. Perjury may be before court-martial, § 1259. Doubts as to ecclesiastical courts, § 1260. Grand jury may administer oath, § 1261. But otherwise unauthorized officer, § 1262. Officer acting as such primâ facie competent, § 1263. Perjury not extra-territorially punishable, § 1264. State magistrate under act of Congress may administer oath, § 1265. And so justice of the peace and of arbitrators under rule of arbitration, § 1266. VI. IN JUDICIAL PROCEEDING. False swearing must be in judicial Juror indictable for false swearing But otherwise as to statutory affi- Party may be guilty of perjury in his own case, § 1271. No perjury in void suit, § 1272. State court has ordinarily no juris- VII. IN MATTER MATERIAL. False swearing must have been in And so witness's answers on his own cross-examination, § 1279. Inadmissibility no test of immateriality, § 1280. Admission not conclusive as to materiality, § 1281. Prima facie materiality is sufficient, § 1282. Irrelevant opinions not subjects of perjury, § 1283. Materiality is for court, § 1284. VIII. INDICTMENT. Oath must be correctly averred and proved, § 1305. Whole of testimony is to be considered, § 1306. Substance of assignment must be proved, § 1307. One witness enough to prove testimony, § 1308. Answers in chancery and depositions to be proved by jurat, § 1309. Parol evidence admissible notwithstanding testimony was reduced to writing, § 1310. Lost instrument may be proved by parol, § 1311. Jurat of officer administering oath is proof of oath, § 1312. Substantial variance as to evidence is fatal, § 1313. Records must be literally given, § 1314. Not necessary to prove appointment of officer, § 1315. Proving one assignment is sufficient, § 1316. Defendant's contradictory oath not sufficient proof of falsity, § 1317. Facts admissible to infer corrupt Defendant's character for truth is X. ATTEMPTS. Attempts at perjury are indictable XL. SUBORNATION OF PERJURY. To subornation corrupt motive is Indictment must aver scienter, § 1331. XII. ATTEMPTS TO SUBORN; DISSUADING And so of dissuading witness from Testimony must be material, § 1330. XIII. FABRICATION OF EVIDENCE, § 1334. § 1244. PERJURY is the wilful assertion as to a matter of fact, opinion, belief, or knowledge, made by a witness in a Definition. judicial proceeding as part of his evidence, either upon oath or in any form allowed by law to be substituted for an oath, whether such evidence is given in open court, or in an affidavit, or otherwise, such assertion being known to such witness to be false, and being intended by him to mislead the court, jury, or person holding the proceeding. Every person is a witness within this section who actually gives his evidence upon oath or in any form as aforesaid.1 Perjury is at common law a misdemeanor.2 And false swearing, when not technically perjury, may nevertheless be at common law indictable as an independent misdemeanor, when the oath is taken to affect a juridical right.3 I. WILFUL. Offence must be wilful. § 1245. The offence consists in swearing falsely and corruptly, without probable cause of belief; not in swearing rashly or inconsiderately, according to belief.4 The false oath, if taken from inadvertence or mistake, cannot amount to voluntary and corrupt perjury.5 Therefore, v. State, 1 Carter (Ind.), 184; McGregor v. State, Ibid. 232; People v. Collier, 1 Mich. 137; Nelson v. State, 32 Ark. 193. 1 This definition is substantially that given by the English Commissioners in their draft report made in 1879, and to sustain it may be cited: 1 Hawk. c. 69, s. 1; 3 Inst. 164; Bac. Ab. tit. "Perjury;' "Burn's Justice, tit. "Perjury;" Step. Dig. C. L. art. 135; 2 Russ. on Cr. 5th Am. ed. 596; State v. Tappan, 1 Foster, 56; Pickering's case, 8 Grat. 628; State v. Brown, 79 N. C. 642; State v. Dodd, 3 Murph. 226; State v. Ammon, 3 Murph. 123; Martin v. Miller, 4 Mo. 47; Pankey v. People, 1 Scam. 80; De Bernie v. State, 19 Ala. 23; Jackson 23 Inst. 163-5; R. v. Johnson, 2 Show. 1; Steph. C. L. note vii. 8 R. v. Chapman, 1 Den. C. C. 432; T. & M. 90; R. v. Hodgkins, L. R. 1 C. C. 312. See R. v. O'Brian, 2 Stra. 1143; R. v. De Beauvoir, 7 C. & P. 17; and cases cited infra, §§ 1271, 1274. 4 See infra, § 1246; U. S. v. Passmore, 4 Dall. 372. 51 Hawk. c. 69, s. 2; 2 Russ. on where perjury is assigned on an answer in equity, or on an affidavit, &c., the part on which the perjury is assigned may be shown to be inadvertent by another part, or even by a subsequent answer.1 That the oath is wilful and corrupt must not only be charged in the indictment, but be supported on trial.2 An oath is wilful when taken with deliberation, and not through surprise or confusion, or a bona fide mistake as to the facts, in which latter cases perjury does not lie.3 is know ingly affirming without probable II. FALSE AND CORRUPT. § 1246. It is perjury where one swears wilfully and corruptly "Falsely " to a matter which he, according to his own lights, has no probable cause for believing, since a man is guilty of perjury if he knowingly and wilfully swears to a particular fact, without knowing at the time that the assertion is true,5 supposing that his purpose is corrupt. Hence it is held a good assignment of perjury that the defendant swore that he "thought" or "believed" a certain fact, whereas in truth and fact he " thought" or or "believed" the contrary, and had no probable grounds for what he swore. Nor is it cause. Cr. 6th Am. ed. 597. See remarks on this point in Steinman v. M'Williams, 6 Barr, 170. Com. v. Halstat, 2 Bost. Law. Rep. 11 Sid. 419; Com. Dig. Jus. of trie, 1 Leach, 327; R. v. Schlesinger, Peace (B.), 102. 2 Infra, § 1286; U. S. v. Moore, 2 Low. 232; Resp. v. Newell, 3 Yeates, 407; Thomas v. Com. 2 Rob. (Va.) 795; Com. v. Cook, 1 Rob. (Va.) 729; State v. Garland, 3 Dev. 114; Green v. State, 41 Ala. 419; Miller v. State, 15 Fla. 577. 8 U. S. v. Shellmire, 1 Bald. 370; Com. v. Brady, 5 Gray, 78; Case v. People, N. Y. Ct. Ap. 1879, reported infra, § 1257; Com. v. Cornish, 6 Binn. 249; Com. v. Cook, 1 Rob. (Va.) 729. See R. v. Muscot, 10 Mod. 192; R. v. Moreau, 11 Q. B. 1028; Steinman v. 'Williams, 6 Barr, 178. Ibid. 10 Q. B. 670; State v. Knox, Phil. (N. C.) L. 312; though see 2 Russ. on Cr. 6th Am. ed. 597; 1 Sid. 419; U. S. v. Shellmire, Bald. 370; U. S. v. Atkins, 1 Sprague, 558; 19 Law Rep. 95, questioned by Lowell, J., in U. S. v. Moore, 2 Low. 232. In Lambert v. People, 6 Abb. New Cas. 181, an affidavit, appended to a statement by a life insurance company, stated that deponents were the officers of the company, "and on the 31st of December last all the above described assets were the absolute property of the company, free and clear from any liens or claims, except as above stated; that the fore 5 R. v. Edwards, 3 Russ. on Cr. 1; going statement, with the schedules |