in which alleged false oath

was taken.

ness, under such circumstances, to be excluded from the witness-box by an intermediate conviction for perjury.1 On the same principle, and to suppress the same evil, it has been held in Pennsylvania that an indictment for false swearing to an affidavit of defence does not lie until the case in which the affidavit is filed is terminated.2 In England the present practice is to postpone the trial for perjury until the cause out of which it arises is determined, in order to keep the testimony of the witness intact.

Entire

facts con

false evidence admissible.

§ 1325. All the facts necessary to the explanation of the evidence are admissible. Thus on the trial of an indictnected with ment for perjury alleged to have been committed on the trial of an assault, all the evidence that was admissible on the trial of the indictment for the assault is admissible, if relevant, on the trial for perjury. Where a written paper is referred to, the place and time of subscribing it by the accused being involved in the alleged perjury as set forth in the indictment, such paper is proper evidence at the trial.5 § 1326. In a trial at nisi prius, on an indictment for perjury, the postea must be produced by the plaintiff. At common law, generally the entire record should be put in ord should evidence.7 But where the proceedings were in any be proved. way collateral, and there is parol proof of regularity, it is not necessary that all the original papers should be produced or exemplified. Nor need there be proof of final judgment when the postea is produced.9

At common law entire rec

§ 1327. As a defence, character for truthfulness may be set up; and Lord Denman once permitted the following

Character

ant for

of defend- questions : "What is the character of the defendant for veracity and honor?" and "Do you consider him a man likely to commit perjury?" 10

truth admissible.

1 See 2 Russ. on Cr. 6th Am. ed. 654.

2 Com. v. Dickinson, 5 Penn. L. J. 164.

8 R. v. Simmons, 8 C. & P. 50; R. v. Ashburn, 8 C. & P. 50. See Peddell v. Rutter, 8 C. & P. 337. And as to continuance see more fully Whart. Cr. Pl. & Pr. §§ 584 et seq.

5 Osburn v. State, 7 Ham. (Part 1st) 212.

Resp. v. Goss, 2 Yeates, 479.
Porter v. Cooper, 6 C. & P. 354.

8 R. v. Turner, 2 C. & K. 732; R. v. Smith, L. R. 1 C. C. 110; 11 Cox C. C. 10.

9 Bull. N. P. 243.

10 R. v. Hemp, 5 C. & P. 468. See

R. v. Harrison, 9 Cox C. C. 503. Whart. Crim. Ev. § 60.

X. ATTEMPTS TO COMMIT PERJURY.

Attempt at

dictable.

§ 1328. An attempt to commit perjury is indictable 1 on the same reasoning as are attempts to commit other offences. And when the complete offence of perjury is perjury innot proved (as where the false oath is taken before an incompetent officer, the defendant believing him to be competent), the defendant may be indicted for the attempt.2 Attempts to suborn witnesses, and to suppress testimony, will be independently considered.3

XI. SUBORNATION OF PERJURY.4

To subor

nation cortive is essential.

rupt mo

§ 1329. To constitute subornation of perjury, which is an offence at common law, the party charged must procure the commission of the perjury, by inciting, instigating, or persuading the witness to commit the crime.5 Perjury must have been actually committed. The suborner must be aware of the intended corruptness on part of the person suborned. Thus though a party, who is charged with subornation of perjury, knew that the testimony of a witness

1 St. Dig. C. L. art. 138; R. v. Taylor, Holt, 534. See R. v. Stone, Dears. 251; Chapman's case, 1 Den. C. C. 432; Hodgkins v. R. L. R. 1 C. C. R. 212. Supra. §§ 179 et seq., 185.

2 R. v. Stone, Dears. 251; 22 Eng. L. & Eq. 593.

8 Infra, § 1332.

4 For forms of indictment see Wh. Prec., as follows: :

(597.) Subornation of perjury in a

prosecution for fornication, &c. (598.) Subornation of perjury on a trial for robbery, where the prisoner set up an alibi.

give evidence against a person charged with an offence before the grand jury.

(603.) Inducing a witness to withhold

his evidence as to the execution of a deed of trust, in Virginia. (604.) Endeavoring to suborn a person to give evidence on the trial of an action of trespass, issued in the Supreme Judicial Court of Massachusetts.

(605.) Soliciting a woman to commit perjury, by swearing a child to an innocent person, the attempt being unsuccessful.

(599.) Subornation of perjury in an (606.) Soliciting a witness to disobey

action of trespass.

(600.) Corruptly endeavoring to influence a witness in the U. S. courts.

(601.) Endeavoring to entice a witness to withdraw himself from the prosecution of a felon.

(602.) Persuading a witness not to

a subpoena to give evidence before the grand jury.

Б 1 Hawk. c. 69, s. 10; 2 Russ. on Cr. (6th Am. ed.) 596; R. v. Reilley, 2 Leach, 509; U. S. v. Staats, 8 How. 41; Com. v. Douglass, 5 Met. 241. See Com. v. Smith, 11 Allen, 243.

• Com. v. Maybush, 29 Grat. 857.

whom he called would be false, yet if he did not know that the witness would wilfully testify to a fact, knowing it to be false, he cannot be convicted of the crime charged.1

Testimony must be material.

§ 1330. In subornation of perjury, the same rules as to materiality of testimony prevail as in perjury. Hence, in trials of this class, a perjured witness, who claims to have been suborned, is not sufficient, without corroboration, to procure the conviction of the alleged suborner. § 1331. The scienter must be averred; and it must be also averred that the false oath was procured to be used as testimony in a court having jurisdiction. But it is scienter. enough for the indictment to aver that the defendant unlawfully, wilfully, wickedly, feloniously, and corruptly did persuade, procure, and suborn" the witness to "commit said perjury in manner and form aforesaid." The term "knowingly " is thereby adequately implied.5

Indictment must aver

XII. ATTEMPTS TO SUBORN: DISSUADING WITNESS FROM APPEARING.

Attempts at subor

nation are

§ 1332. Although, in order to constitute the technical offence of subornation, the person cited must actually take the false oath, yet it is plain that attempts, though unsucindictable. cessful, to induce a witness to give particular testimony, irrespective of the truth, even though such witness had not been served with a subpoena, are indictable.7

§ 1333. To dissuade a witness from attending a trial is not And so of merely a contempt of court, but may be punishable dissuading witness by indictment, irrespective, it is said, of materiality,8

4 U. S. v. Wilcox, 4 Blatch. C. C. 391, 393; Whart. Cr. Pl. & Pr. § 164. 5 Stewart v. State, 22 Oh. St. 477. 62 Russ. on Cr. 6th Am. ed. 595; R. v. Darby, 7 Mod. 100; Overton, ex parte, 2 Rose, 257; Jackson v. State, 43 Tex. 421. See State v. Hughes, 43 Tex. 518. Supra, § 179.

7 R. v. Phillips, Cas. temp. Hard. 241; State v. Keyes, 8 Vt. 57. See

supra, § 179; and see Wh. Cr. Pl. & Pr. § 954.

It is not necessary, in an indictment for attempting to suborn a witness, that the fact, which the defendant attempted to procure the witness to swear to, should be proved specifically; as that fact would only be evidence to show quo animo the bribe was offered, it may be shown by other circumstances. State v. Holding, 1 McCord, 31. For form of indictment see Stewart v. State, 22 Oh. St. 477.

8 State v. Carpenter, 20 Vt. 9; State v. Early, 3 Harrington, 562; and see

or of the prior summoning of the witness by sub- from atpœna.1

tending.

In an indictment against S., for endeavoring to prevent a witness bound over to testify before a grand jury from appearing and testifying, the indictment in the original case, in which the witness was recognized to appear, need not be recited, nor does the guilt or innocence of the respondent depend upon the sufficiency of that indictment, or of the guilt or innocence of the respondent in the first case.2

XIV. FABRICATION OF EVIDENCE.

§ 1334. "Fabricating evidence," it is said by the English Commissioners on the Draft Code of 1879, "is an offence which is not so common as perjury, but which does occur and is sometimes detected. An instance occurred a few years ago on a trial for shooting at a man, with intent to murder him, where the defence was that though the accused did fire off a pistol, it was not loaded with ball, and the only intent was to frighten. Evidence was given that a pistol ball was found lodged in the trunk of a tree nearly in the line from where the accused fired to where the prosecutor stood. It was afterwards discovered that the ball had been placed in the tree by those concerned in the prosecution, in order to supply the missing link in the evidence. Such an offence is as wicked and as dangerous as perjury, but the punishment as a common law offence (if, irrespective of conspiracy, it be an offence) is only fine and imprisonment." In those of our States where a common law exists, the offence would probably be regarded as indictable at common law.3

2 Russ. on Cr. (6th Am. ed.) 595; R. v. Chandler, 1 Strange, 612; 8 Mod. 336; Com. v. Reynolds, 14 Gray, 87. 1 State v. Ames, 64 Me. 386; State v. Keyes, 8 Vt. 57.

2 State v. Carpenter, 20 Vt. 9. See Martin v. State, 28 Ala. 71. * Supra, § 681.

187

CHAPTER XXI.

CONSPIRACY.