UNITED STATES V. EnWARnS.1
(Cirot/JI,UJ0'lJ/!'f'S. D. Alabama. April
PIIlRJURy-INDIOTMENT-" WILLFULLY. "
An indictment for perjury under Rev. St. § 5899, must allege, among other things, that the false oath was taken willfully; and an allegation that it was corruptly taken does not embrace the element of willfulness.
Demurrer to IndiGtmept fpr Pe.rjury. .' . . . M. D. Wickersham, Dist. Atty., for the United States. J. J. Parker, for defendaut,
, TOU:LlolIN, J. ,To constitute perjury, iUs essential that the oath was administered in the manner .prescribedby law, and by some person duly authorized to administer the same, in the matter wherein it was taken. The false statement must be material to the issue in the case in which it was made, and ifmustbewHlfully made. U. S. v. Stanley; 6 'rt[c'Lean, 409. Perjury cannot be committed unless the person taking the oath not only swears to what is false, or what he does not believe to be true, but does so willfully. U. S. v. Dennee, 3 Woods, 39; U. S. v. Evans, 19. Fed. Rep. 912; 3 Green!. Ev. § 189; 2 Bish. Crim. Law, §§ '1017-4046; U. S. v. Hearing, 26 Fed. Rep. 744. Rash or reckless statements on oath are not perjury, but the oath must be willfully corrupt. Authorities supra, and U. S. v. Moore, 2 Low. 232. The Revise4 Statutes of the United States, § 5392, under which this indictment is found, makes it of the essence of the offense of perjury that it be committed willfully. U. S. v. Shellmire, Baldw. 378. But it is contended by the district a.ttorney that the word "corruptly," used in the indictment, is the equivalent of "willfully." The understanding of the court is that the two words have an entirely different meaning. "Corruptly" means viciously, wickedly. "Willfully" means with design, with some degree of deliberation. To say that testimony was corrupt is to say that it was wicked or vicious, whereas, to say that it was willful is to aver that it was given with some degree of deliberation; that it was not due to . prise, inadvertence, or mistake, but to design. The statute uses. the word "willfully," and makes it of the essence of the offense; ,and the court is not persuaded that the averment that a false. oath was cor, ruptly taken is of the same import as the averment that it was willfully taken. The court being of the opinion that willfulness is an essential ingredient for the offense of perjury under section 5392, Rev. St., it must be charged in the indictment, or the indictment will be bad.. The first count in the indictment under consideration does not aver with distinctness before what tribunal, officer, or person the oath was made, or by whom it was administered; and it fails to aver that the matter subscribed and stated by the defendant was so subscribed and stated by him willfully, and contrary to such oath. And the second
by Peter J. Hamilton, Esq., of the Mobile bar.
count in the indictment also fails to aver that the defendant willfully, and contrary to the oath taken 1?yhim, stated and testified to matters which he did not believe to be true. The demurrers to the indictment on the grounds stated "are well taken, and they are sustained.
UNITED STATES ". UPHAM
et al. l
(OtrcuU Oourt, S. D. Alabama. June 28, 1890.)
An indictment against a man by the initials of his Christian name only iB BUbjellt to plea in abatement, unless the grand jury add that his name is unknown to them otherwise than is set out.
At Law. On demurrer to plea in abatement to indictment for conlilpiracy. M. D. Wicker8ham, U. S. Atty. G. L. & H. T. Smith, for defendant. TOULMIN, J. An indictment which sets forth the defendant's Christian llame by initials only is subject to plea in abatement, unless it is alleged t1:1at the Christian name was unknown to the grand jury otherwise than as lail! in the As said by the court in the case of Gerrish v. State, in 53Ala. 476: "If the grand jury knew only the initials of defendant's first names, and could not bavefound out by reasonable diligence what these names were, it would have been legal for them to haye indicted him 3S '" '" '" [E. R. Upham,] using the initials as such, if they had added that his name was un· known to them otherWise than as set out. But this they have not done, and so t,he indictment is left sUlJject to the plea in abatement." See Gerrish v. State, 53 Ala. Washington v. State, 68 Ala. 85; 1 Bish. Crim. Proe. §§ 566, 676, 677, 680. Demurrer to the plea is overruled. Upon iSilue to the plea, which was then joined, it was admitted that the letters" E. R." used in the indictment were used as the initials of the true Christian name of E. R. Upham, and not as his baptismal name, whereupon the court instructed the jury to find the issue in favor ofthe defendant. Ger'l'iBh v. State, 8Upraj 1 Bish. Crim. Proc. § 677; Sm,'iJ,h v. State, 8 Ohio, 294.