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Laws). U. S. v. Pettus, (W. D. Tenn. 1897) 84 Fed. 791.

Deliberately and corruptly.”— It need not be alleged that the oath was taken

deliberately and corruptly,” but it is sufficient if the language of the statute be followed. U. S. v. Hearing, (C. C. Ore. 1886) 26 Fed. 744.

Setting out false instrument. The affidavit upon which the charge is based need not be set out in hæc verbis. U. S. u. Law, (W. D. Va. 1892) 50 Fed. 915.

“Averment to falsify the matter."-An indictment must include direct and specific allegations negativing the truth of the alleged false testimony, together with affirmative averments setting up the truth by way of antithesis. Bartlett t'. U. S., (C. C. A. 9th Cir. 1901) 106 Fed. 884, 46 C. C. A. 19.

Designation of court before whom oath was taken.—The true and proper designation of the court, or the name and official title of the officer before whom the oath was taken, should be stated. If he is not alleged to hold an office which apparently confers upon him authority to administer the oath, the facts should be stated showing from what source his powers are derived. An allegation that the oath was taken before one, “a commissioner of the United States, duly appointed according to law, and having competent authority and power to arrest offenders for any crime,” is not sufficient to show authority to administer the oath. U. S. v. Wilcox, (1859) 4 Blatchf. 391, 29 Fed. Cas. No. 16,692.

The indictment should designate the court with a distinct averment that the oath was made before it, but need not name the person holding the court. The word “and” should be construed “ U. S. v. Walsh, (C. C. Mass. 1884) 22 Fed. 644.

An indictment alleging perjury to have been committed on a hearing “depending before the Honorable John Davis, then and ever since being judge of the District Court of the United States," does not set forth that the hearing was before the judge in his official or judicial capacity, and cannot be sustained. U. S. v. Clark, (1813) 1 Gall. 497, 25 Fed. Cas. No. 14,804.

Authority of court or officer to administer oath.- Where the false swearing is alleged to have been committed in a proceeding in open court the allegation must be sufficient to show that the proceeding was one in which the court was competent to act. U. S. v. Cuddy, S. D. Cal. 1889) 39 Fed. 696.

In an indictment for perjury in a landoffice contest, it is not necessary to aver or show that the land officer had jurisdiction of the contest cases in which the alleged perjury was committed. This statute is much broader and more compre

hensive, and makes false swearing punishable as perjury when committed by a person who, having taken an oath before a competent tribunal, officer, or person in any case in which a law of the United States authorizes an oath to be adminis. tered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed is true, wilfully and contrary to such oath states or subscribes any material matter which he does not believe to be true. It is not necessary under this statute that the false testimony should be given in a judicial proceeding, but, if the oath is taken before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, and the matter sworn to is material and false, it is perjury. Peters v. U. S., (1894) 2 Okla. 116, 33 Pac. 1031, affirmed on rehearing (1894) 2 Okla. 138, 37 Pac. 1081. See also Rich Ľ. U. S., (1894) Okla. 146, 37 Pac. 1083, modifying on rehearing (1893) 1 Okla. 354, 33 Pac. 804.

Under R. S. sec. 4744, as amended by Act of July 25, 1882, ch. 349, and by section 3 of the Act of March 3, 1891, ch. 548 (title PENSIONS), the commissioner of pensions is authorized to detail special examiners as to the merits of pension or bounty-land claims, with power to administer oaths. An averment in an indictment in a charge of perjury that the oath was taken “before G. C. Loomis, then and there a special examiner of the pension bureau of the United States, and then and there a competent officer, and having lawful authority to administer said oath, sufficiently sets forth the official authority of the officer before whom the oath was taken. Markham v. U. S., (1895) 160 U. S. 319, 16 S. Ct. 288, 40 U. S. (L. ed.) 441.

In an indictment for verifying a false report to the comptroller of the currency, required by R. S. sec. 5211 (in NATIONAL BANKS, vol. 6, p. 790), an averment that the report was

* made to the comptroller of the currency and verified, as aforesaid, as by law required,” is sufficient after verdict to warrant judgment. U. S. 0. Bartow, (S. D. N. Y. 1882) 10 Fed. 873.

R. S. sec. 2249, as amended by Act Cong. March 4, 1904, ch. 394, 33 Stat. L. 59 (title PUBLIC LANDS), authorizes proof of homesead claims to be made before United States commissioners in the land district in which the lands are situated, and this section declares that every person who having taken an oath before a competent officer in any case in which the law of the United States authorizes an oath to be administered that he will testify truly, etc., wilfully and contrary to his oath states or subscribes any material matter which he does not believe to be

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true is guilty of perjury.

An indictment for perjury in support of a homestead claim, sworn to before a United States commissioner, alleged that the commissioner was an officer who was authorized by the laws of the United States to administer an oath and take testimony in such proceeding, and was then and there engaged in taking testimony on the application of W. to make final homestead proof, etc., that it thereupon became material that the commissioner should be informed by the testimony whether W. had settled and resided on the land in good faith; and that to prevent the commissioner from knowing the true facts the defendant wilfully, corruptly, and falsely testified to facts specified which he did not believe to be true. It was held that under such allegations the court would take judicial notice that the commissioner had competent authority to administer the oath to defendant in the particular proceeding, and that the indictment was not, therefore, defective for failure to allege the commissioner's authority to administer the oath on which the perjury was based. Barnard v. U. S., (C. C. A. 9th Cir. 1908) 162 Fed. 618, 89 C. C. A. 376.

The indictment need not set out the special authority of the officer to administer the oath. Ú. S. v. Boggs, (S. D. Ill. 1887) 31 Fed. 337; U. S. v. Rhodes, (W. D. Mo. 1887) 30 Fed. 431. See U. S. v. Sonachall, (1864) 4 Biss. 425, 27 Fed. Cas. No. 16,352.

It is sufficient to aver that the officer was authorized by statute of the United States to administer the oath, and that the material testimony in question was taken within the general scope of his authority. It need not be averred that such exercise was expressly authorized rightly invoked in the instant examination. Baskin 1. U. S., (C. C. A. 7th Cir. 1913) 209 Fed. 740, 126 C. C. A. 464.

Perjury in support of pension claim.In an indictment for perjury in taking a false oath in support of a pension claim, the allegation, “ in a case then pending before the commissioner of pensions of the United States, being a special examination into the merits of the pension claim of one Edwin Brackett," etc., was held sufficient, although it was not averred that the Edwin Brackett named therein was the same Edwin Brackett who, as a late member of Company F, 2d R. I. Vols., made an application for a pension, because in pleading this judgment in bar of another prosecution, the defendant could allege and prove that the offense there alleged was the same offense for which he was formerly convicted. U. S. 1'. Wood, (C. C. R. I. 1891) 44 Fed. 753.

In an indictment charging the making a false deposition in support of a fraudulent pension claim, it must be alleged

that the claim was false; but it need not aver that the claim had already been presented. U. S. v. Rhodes, (W. D. Mo. 1887) 30 Fed. 431.

Perjury in land office contest. It is not necessary, in an indictment for per jury alleged to have been committed in à land office contest, to set forth the grounds upon which it was sought to have an entry canceled. Peters r. U. S., (1894) 2 Okla. 138, 37 U. S. (L. ed.) 1081.

In an indictment for perjury alleged to have been committed in a land office contest, the following language appearing: “A certain land contest was pending, wherein one William P. Mitchell sought to have the homestead entry of one John Backes, for the northeast quarter of section twenty-one, etc., canceled and forfeited to the nited States," it was held that if it were necessary to set forth the fact that Backes had an entry on the land described in the indictment, the same sufficiently appeared therein. Finch V. U. S., (1893) 1 Okla. 396, 33 Pac. 638. See Fisher v. U. S., (1892) 1 Okla. 252, 31 Pac. 195.

Perjury in naturalization.- In an indictment for perjury committed in a declaration of intention to become a citizen under R. S. sec. 5395 (incorporated in Penal Laws, sec. 80, and repealed by sec. 341 thereof; see PENAL LAWS), the declaration need not be set out. U. S. v. Walsh, (C. C. Mass. 1884) 22 Fed 644.

Perjury in contested election case.An indictment for perjury committed in the hearing of a contested election case, alleging that the defendant swore falsely in certain particulars, is defective where it does not go on to set forth the fact or circumstance which is to be relied upon by the government to show that the defendant's oath was false. U. S. v. Pettus, (W. D. Tenn, 1897) 84 Fed. 791.

Materiality of facts sworn to.—The ma. teriality of the facts sworn to must be expressly averred, or it must be clearly disclosed by the facts as stated on he face of the indictment. U. S. 1'. Singleton, (S. D. Ala. 1892) 54 Fed. 488; U. S. 1. Shinn, (C. C. Ore. 1882) 14 Fed. 447 ; Rich v. U. S., (1893) Okla. 354, 33 Pac. 804; U. S. v. McHenry, (1869) 6 Blatchf. 503, 26 Fed. Cas. No. 15,681.

There should be an averment that the false allegations were material to the matter in issue, but all the circumstances which render them material need not be set forth. Markham v. U. S., (1895) 160 C. S. 319, 16 S. Ct. 288, 40 U. S. (L. ed.) 441.

But if the facts be set out and they show that they were not material to the issues being tried, a demurrer to the indictment will be sustaine!. U. S. v. Pettus, (W. D. Tenn. 1897) 84 Fed. 791.

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In an indictment for perjury charged to have been committed before a referee in bankruptcy on an inquiry as to assets and liabilities, an allegation that the inquiry as to assets or financial statement was material, was held to be a sufficient averment of fact. U. S. v. Rosenstein, (E. D. N. Y. 1914) 211 Fed. 738.

But an indictment which fails to show that the alleged false testimony was material to the issue involved in the proceeding before the referee in bankruptcy is defective. It must appear from the allegations of the indictment that the testimony given before the referee was material to the matter or proceeding pending before him. U. S. 1. Rhodes, (S. D. Ala. 1913) 212 Fed. 518.

And materiality of the perjurous state ment may be shown either by an allegation simply or by pleading the setting from which the court may determine the materiality. U. S. v. Salen, (S. D. N. Y. 1914) 216 Fed. 420.

Date of offense. The time when the false oath is alleged to have been taken must be stated. U. S. v. Bowman, (1808) 2 Wash. 328, 24 Fed. Cas. No. 14,631.

The day of the alleged commission of the offense should be stated, and not left the

day of September, 1891." U. S. v. Law, (W. D. Va. 1892) 50 Fed. 915.

Conclusion.-A conclusion “in contempt of the laws of the United States” held bad, as not adequately charging the offense to have been committed against any statute of the United States. U. S. v. Andrews, (1832) 2 Paine 451, 24 Fed. Cas. No. 14,455.

See U. S. v. Lehman, (E. D. Mo. 1889) 39 Fed. 768, that a conclusion « contrary to the form of the statutes of the United States” is good.

Variance. -Any discrepancy between what defendant swore to and what is set out in the indictment is fatal to conviction. U. S. v. Coons, (1856) 1 Bond 1, 25 Fed. Cas. No. 14,860.

The perjury was assigned in swearing at a trial on the 19th day of May, 1811; the record of the trial showed that the court was first held on the 20th day of May, the 19th being Sunday; the variance was held fatal. U. S. v. McNeal, (1813) 1 Gall. 387, 26 Fed. Cas. No. 15,700.

That the evidence showed, according to stenographer's notes, that the defendant swore on the 6th of June, instead of on the 7th as alleged in the indictment, is not a material variance. Stenographers' notes are not records. Matthews v. U.S., (1896) 161 U. S. 500, 16 S. Ct. 640, 40 U. S. (L. ed.) 786.

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Sec. 5397. [Indictment for subornation of perjury.]. In every presentment or indictment for subornation of perjury, it shall be sufficient to set forth the substance of the offense charged upon the defendant, without setting forth the bill, answer, information, indictment, declaration, or any part of any record or proceeding either in law or equity, or any affidavit, deposition, or certificate, and without setting forth the commission or authority of the court or person before whom the perjury was committed, or was agreed or promised to be committed. [R. S.]

Act of April 30, 1790, ch. 9, 1 Stat. L. 116.
See the note to the preceding R. S. sec. 5396.

Requisites.—It must appear that the perjury before a federal grand jury, the oath was taken in a proceeding where an following description of the proceeding in oath or affirmation was required under the which the perjury was committed, laws of the United States. U. S. r. Wil ting as a grand jury . . . and, amongst cox, (1859) 4 Blatchf. 393, 28 Fed. Cas. other matters, inquiring into certain No. 16,693. See also U. S. v. Wilcox, criminal violations of the laws of the said (1859) 4 Blatchf. 391, 28 Fed. Cas. No. United States relating to the public lands 16,692.

and the disposal of the same, and the Averment as to nature of proceeding.“ unlawful fencing thereof, which had then The

of the words trial" and lately before been committed within the “ issue in an indictment, in referring to said district," was held to be adequate. a hearing before a United States com Hendricks v. U. Si, (1912) 223 U. S. 178, missioner, in which the alleged perjured 32 S. Ct. 313, 56 U. S. (L. ed.) 394. testimony was given does not render such In Markham v. U. S., (1895) 161 U. S. indictment defective on the ground that 319, 16 S. Ct. 288, 40 U. S. (L. ed.) 441, a United States commissioner is without the description in the indictment specijurisdiction to try any issue between the fied an inquiry then pending before and United States and the person charged within the jurisdiction of the Commiswith crime. Cohen v. U. S., (C. C. A. 9th sioner of Pensions of the United States, at Cir. 1914) 214 Fed. 23, 120 C. C. A. 417. Washington, in the District of Columbia,”

In, an indictment for subornation of and was held to be sufficiently definite.

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Authority to administer the oath.There need be no allegation of the authority to administer oaths or take affidavits, as the court will take judicial notice of qualification. Babcockt. U. S., (C. C. Colo. 1888) 34 Fed. 873; Peters v. U. S., (1894) 2 Okla. 138, 37 Pac. 1081.

Knowledge of false testimony.- It must be alleged that the defendant knew that the witness had knowledge of the falsity of his testimony. U. S. r. Evans, (D. Č. Cal. 1884) 19 Fed. 912; U. S. v. Wilcox, (1859) 4 Blatchf. 393, 28 Fed. Cas. No. 16,693.

An indictment must allege that the defendant knew that the testimony which he instigated the witness to give was false, and that the defendant knew that the witness knew that the testimony she was instigated to give was false.

U. S. v. Dennee, (1877) 3 Woods 39, 25 Fed. Cas. No. 14,947.

An indictment is sufficient which alleges that the witness knew the testimony. to be false, and that the defendant, knowing it was perjury, procured the witness to commit it. Babcock . U. S., (C. C. Colo. 1888) 34 Fed. 873. See U. S. v. Thompson, (C. C. Ore. 1887) 31 Fed. 331.

Designation of court.-- An indictment for subornation of perjury must designate the court in which the perjury occurred by specific averment or equivalent words. Where the caption and commence- . ment show the court in which the indict. ment was found, further averments with reference to the proceedings in which the alleged perjury was committed, reciting them to have been in “said court," are not sufficient. U. S. 1. Howard, (W. D. Tenn. 1904) 132 Fed. 325.

Averment that witness was sworn.Under the settled rule that an indictment for subornation of per jury must contain all the averments necessary in one charging the crime of perjury against the witness suborned, such an indictment with respect to perjury committed in court must, by direct averment or equivalent words, show that the suborned witness was sworn to speak the truth, the whole truth, and nothing but the truth. It is not sufficient to charge that defendant procured the witness falsely upon oath to depose, etc., since such averment relates to the acts of defendant, and not of the witness; nor is the defect cured by further expressions which assume, without stating, that the witness was sworn such as that “when he was so sworn," or 6 when he so swore,” he did not believe the things to which he testified to be true. U. S. V. Howard, (W. D. Tenn. 1904) 132 Fed. 325.

Averment of materiality of false testimony.-An indictment for subornation of perjury must show that the testimony of which the perjury is predicated was material, either by an averment in terms that

it was material or by stating facts show. ing its materiality. U. S. t. Howard, (W. D. Tenn. 1904) 132 Fed. 325.

Omission of date.-An indictment for subornation of perjury, under R. S. sec. 5393 (incorporated in Penal Laws, sec. 126, and repealed by sec. 341 thereof;

PENAL LAWS), which charges that the offense was committed "on the day of December, 1893,” is defective, but the date not being of the essence of the offense, the defect is one of form only, and is cured by R. S. sec. 1025 (title CRIMINAL LAW, vol. 2, p. 681), which provides that no indictment shall be deemed insufficient by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the de fendant. U. S. v. Howard, (W. D. Tenn. 1904) 132 Fed, 325.

Omission of word “ wilful.”—The crime of perjury, as defined in R. S. sec. 5392 (incorporated in Penal Laws, sec. 125, and repealed by sec. 341 thereof; see PENAL Laws), consists in witness wilfully stating contrary to his oath any material matter which he does not believe to be true; and while, in an indictment for subornation of perjury, the omission of the identical word - wilful" in charging the false swearing by the witness may not be fatal, the indictment must in such case contain equivalent. words, themselves free from ambiguity or equivocation. Such requirement is not met by an averment that the defendant knew at the time of the subornation that the testimony to be given by the witness was “false, wilful, and contrary to the oath " to be taken by the witness, which relates to the knowledge of defendant, and not to the state of mind of the witness. U. S. v. Howard, (W. D. Tenn. 1904) 132 Fed. 325.

Perjury respecting public lands.-An indictment for subornation of perjury in procuring another to make a false oath or affidavit before the receiver of a land office to secure an entry of land, which averred that such oath or affidavit was made in support of "a certain application in writing to enter under the homestead laws of the United States, subject to entry at said Land Office," certain land deseribed, was held to be sufficient after verdict as showing that the land de scribed was at the time public land of the United States, subject to homestead entry at such land office. Nurnberger v. U. S., (C. C. A. 8th Cir. 1907) 156 Fed. 721, 84 C. C. A. 377.

Evidence.- On the trial of a defendant charged with subornation of perjury in procuring homestead entrymen to make the required oath that the entry was not made for the benefit of any other person, when in fact they had agreed to convey the land to the defendant for a stipu. lated price as soon as they obtained title,

it was held to be error to refuse to permit the defendant to testify that he made no such agreements, but that the agreements actually made, as he understood them, left the conveyance optional with the other parties or to other facts, which tended to show that his act was not wilful nor corrupt, as required by the statute to

constitute the crime charged. Nurnberger 1. U. S., (C. C. A. Sth Cir. 1907) 156 Fed. 721, 84 C. C. A. 377.

Objection after verdict.-An objection to duplicity comes too late after verdict. Babcock 1. U. S., (C. C. Colo. 1888) 34 Fed. 873.

Sec. 1023. [Matters set forth in prosecutions for perjury before a naval court-martial.] In prosecutions for perjury, committed on examination before a naval general court-martial, or for the subornation thereof, it shall be sufficient to set forth the offense charged on the defendant, without setting forth the authority by which the court was held, or the particular matters brought before, or intended to be brought before, said court. [R. S.)

Act of July 17, 1862, ch. 204, 12 Stat. L. 604.

Section 1023 is from chapter 18 (“ Procedure”) of title 13 (" Judiciary ") of the Revised Statutes. This title has to a large extent been incorporated in the Judicial Code and repealed thereby. See JUDICIARY, vol. 4, p. 800.

For provisions relating to naval courts-martial see ARTICLES FOR THE GOVERNMENT OF THE NAVY; NAVY.

PERMANENT APPROPRIATIONS

See ESTIMATES, APPROPRIATIONS AND REPORTS

PERMANENT CENSUS ACT

See CENSUS

PERMITS FOR TRANSPORTATION

INLAND

See CUSTOMS DUTIES

PHARMACY
Practice in China, see FOOD AND DRUGS

PHILIPPINE GOVERNMENT ACTS

See PHILIPPINE ISLANDS

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