perjury

The essential elements of the crime of perjury as defined in 18 U.S.C. § 1621 are (1) an oath authorized by law of the United States, (2) taken before a competent tribunal, officer or person, and (3) a false statement wilfully made as to facts material to the hearing.

Perjury at common law is the willful and corrupt taking of a false oath in a judicial proceeding in regard to a matter material to the issues. 1 Hawk, P. C. c. 69, § 1; 4 Bl. Comm. 153. It is extended by statute in most jurisdictions to false swearing in certain proceedings not judicial. To constitute the offense, (1) the testimony must be false, or believed to be false, or the witness must not know whether it be true or false (42 Vt. 152; 17 N. H. 373); (2) the taking of the false oath must be both willful and corrupt; (3) the matter sworn to must be material to the issue or question in controversy (12 Mass. 273; 54 Vt. 146); (4) some form of oath or its equivalent must have been duly administered by an authorized officer (86 N. Y. 154; 107 U. S. 671; 76 N. Y. 220); (5) the oath itself, as well as the facts sworn to, must have been material (45 Mich. 543; 17 Ohio, 365); (6) to constitute perjury in a judicial proceeding, the court or tribunal must have jurisdiction (49 Me. 412; 8 Pick. [Mass.] 453; 96 Ky. 407).

The wilful assertion as to a matter of fact, opinion, belief, or knowledge, made by a witness in a 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. 2 Whart. C. L. § 1244. The wilful giving, under oath, in a judicial proceeding or course of justice, of false testimony material to the issue or point of inquiry. 2 Bish. N. Cr. Law § 1015. It consists in swearing wilfully and corruptly to some matter which is untrue. State v. Smith, 63 Vt 201, 22 Atl. 604. Various false statements in one oath constitute but a single offense; Black v. State (Ga.) 79 S. E. 173. The intention must he wilful. The oath must be taken and the falsehood asserted with deliberation and a consciousness of the nature of the statement made; for if it has arisen in consequence of inadvertency, surprise, or mistake of the import of the question, there was no corrupt motive; Hawk. Pi. Cr. b. 1, c. 69, s. 2; Cro. Eliz. 492; U. S. v. Babcock, 4 Mc Lean 113, Fed. Cas. No. 14,488; 11 Q. B. 1028; State v. Lea, 3 Ala. 602; People v. Brown, 74 Cal. 306, 16 Pac. 1. But one who swears wilfully and deliberateble cause for believing, is guilty of perjury; Com. v. Cornish, 6 Binn. (Pa.) 249. And so Is one who swears falsely, though he testifies against his will; Com. v. Turner, 98 Ky. 526, 33 S. W. 88. Where -a bankrupt, having submitted the facts fairly to his counsel, swore to a schedule wrohgly made out on his advice, it was not perjury; U. S. v. Conner, 3 Mc Lean 573, Fed. Cas. No. 14,847; but advice of counsel sought as a cover, in bad faith, is no excuse; Tuttle v. People, 36 N. Y. 431; nor is Intoxication; People v. Willey, 2 Park. Cr. C. (N. Y.) 19; Schaller v. State, j.4 Mo. 502; though it may be considered by the jury on the question of intent; Lytle v. State, 31 Ohio St. 196. The oath must he false. The party must believe that what he is swearing to is fictitious; and if, intending to deceive, he asserts that which may happen to be done without any knowledge of the fact, he is equally criminal, and the accidental truth of his evidence will not excuse him; Co. 3d Inst. 166; Hawk. PI. Cr. b. 1, c. 69, s. 6; 1 Bish. N. Cr. L. § 437. See People v. Burden, 9 Barb. *(N. Y.) 467; 1 C. & K. 519; Gibson v. State (Tex.) 15 S. W. 118. As, if a man swears that C D revoked his will in his presence, if he really had revoked it, but it was unknown to the witness that he had done so, it is perjury; Hetl. 97. Knowledge by a witness that his testimony is false, is tested, like intention generally, by sound mind and discretion, and by all the circumstances; soundness of mind, where nothing to the contrary appears, being assumed; Mc Cord v. State, 83 Ga. 521, 10 S. E. 437. The party must he lawfully sworn. The person by whom the oath is administered must have competent authority to receive it; an oath, therefore, taken before a private person, or before an olficer or court having no jurisdiction, will not amount to perjury, “For where the court hath no authority to hold plea of the cause, but it is coram non judice, there perjury cannot be committed;” Jackson v. Humphrey, 1 Johns. (N. Y.) 498; 3 C. & P. 419; Com. v. White, 8 Pick. (Mass.) 453; 12 Q. B. 1026; Co. 3d Inst. 166; State v. Wymberly, 40 La. Ann. 460, 4 South. 161; U. S. v. Hall, 131 U. S. 50, 9 Sup. Ct. 663, 33 L. Ed. 97. See Renew v. State, 79 Ga. 162, 4 S. E. 19; Anderson v. State, 24 Tex. App. 715, 7 S. W. 40; Butler v. State, 36 Tex. Cr. R. 483, 38 S. W. 46; State v. Gates, 107 N. C. 832, 12 S. E. 319; State v. Wilson, 87 Tenn. 693, 11 S. W. 792. But it has been held that the Indictment need not aver jurisdiction of the case in which the perjury was committed; Com. v. Hatfield, 107 Mass. 227; State v. Newton, 1 G. Greene (Iowa) 160, 48 Am. Dec. 367. And generally there need be no averment as to how the authority of the officer or juris-

False swearing; the making of a false oath; the breach of an oath. The offense is defined in most of the states by statute. V, Subornation.

False swearing, under oath lawfully judicial, legal, or political proceeding, to a

The offence committed by one who, having taken an oath or affirmation, lawfully imposed, to testify truly, wilfully makes a material assertion believed to be untrue. Definitions that have been given in past years, and were well sustained by the law of their day, confine perjury to the violation of an oath taken in a judicial proceeding; and, for a long time after the penalties of perjury began to be extended to false testimony under an affirmation, and false swearing in legal proceedings not strictly judicial, there was hesitation in applying the term perjury to these. Recent legislation in many jurisdictions has so generally extended the word to include all wilful violations of the obligation formally and legally imposed to tell the truth, that we believe the definition may properly be restated, extending it to affirmations Numerous decisions, both in prosecutions for perjury, and in actions for slander in words supposed by plaintiff to import a charge of perjury, have established that swearing to what is false does not constitute perjury. To make out a case of perjury, there must have been an oath or affirmation in a case, and before an officer or tribunal authorized by law; the violation of a ■voluntary oath, or making an extrajudicial affidavit, is not perjury; and formerly, and in some jurisdictions still, it must be an oath taken in a court of justice. The ofiender must have wilfully made the statements charged; accidental or unintended errors are not punishable. And he must, at least, have believed the statement to have been untrue; that it should have been false in fact may not be necessary. Perjury is a corrupt, wilful, false oath, taken in a judicial proceeding, in regard to a matter material to a point involved in the proceeding. This oath must be taken before some officer or court having authority to administer it, and he must coniine his action to the authority given. And it is competent to show that the accused might have been led into a mistake; for then the oath, though untruthful, cannot have been perjury. Hood v. State, 44 Ala. 81. Perjury at common law is the " taking of a wilful false oath by one who, being lawfully sworn by a competent court to depose the truth in any judicial proceeding, swears absolutely and falsely in a matter material to the point in issue, whether he believed or not." Commonwealth v. Powell, 2 Mete. [Ky.) 10; Cothran v. State, 39 Miss. 541. Perjury is the taking of a wilful false oath by one who, being lawfully required to depose the truth in any judicial proceeding, swears absolutely in a matter material to the point in question. The testimony must not only be wilfully false, but it must be material to the issue. The prosecutor must prove that it is thus material; and it is also necessary that it should be alleged in the mdictment that the matter sworn to was material, or that the facts set forth as sworn to, and upon which the perjury is assigned, should be sufficient in themselves to establish the materiality. Commonwealth V. Smith, 11 AUen, 243. To constitute false swearing perjury, the oath must be required by law, or by a usage sanctioned by the courts Or some department of the government. But a mere ministerial officer cannot institute such usage, so as to bring such a case within the law. United States v. Babkock, 4 Mc Lean, 113. of congress a tribunal to settle controversies relating to claims to pre-emption rights, and therefore an oath administered in such a controversy, before the register alone, is extra-judicial; and, as perjury cannot be predicated of such evidence, an action of slander cannot be maintained for a charge of false swearing in such a proceeding. Hall V. Montgomery, 8 Ala. 510. An oath taken before a commissioner authorized to administer it, is an oath which, if wilfully false, would subject the defendant to be punished as for perjury. United States V Nickerson, 17 How. 204. The making, out of court, of a false affidavit, to be used on the hearing of an application for naturalization in a state court, the universal practice being to receive such affidavits in those proceedings, constitutes perjury, and is indictable as such in the courts of the state. State v. Whittemore, 50 N. H. 245. Perjury may be committed either by a witness swearing to a fact which he knows is not true, or to his knowledge of a fact, when he has no such knowledge. But rash swearing to what is not true is not necessarily perjury. United States v. Atkins, 1 Sprague, 558; 9 Mont My Law Rep. n. s. 95. Perjury is not committed by mere reckless swearing to what the witness would, if more cautious, learn to be false; but the oath must be wilfully corrupt. The proposition that an unqualified statement of what one does not know to be true is equivalent to a statement of that which one believes to be false may be nearly true, so far as the effect of the statement on others is concerned; but it is not a sound legal definition of perjury. There must be some fact falsely stated, with knowledge of its falsity, before there can be perjury. United States V. Moore, 2 Low. 232. If a witness, on liis examination, make a false statement, but afterwards correct it, so that his tesdmony is ultimately true, he is not guilty of perjury; and to charge him, without qualification, with swearing false in reference to that statement, is actionable. Henry v. Hamilton, 7 Black/. 506.