« EelmineJätka »
him in 1746, as strongly proving with what intention he had joined the rebel army, and as supporting the overt act laid in the indictment of marching in a warlike manner to depose the King.' On the other hand, when Captain Vaughan was indicted for adhering to the King's enemies, and the overt act laid was his cruising on the King's subjects in the Loyal Clancarty, the Court rejected evidence of his cruizing in another vessel; as, if it were true, it would be no sort of proof of the act, for which he was then. to answer.2
§ 874. This rule is not peculiar to trials for treason; though in consequence of the oppressive character of some former prosecutions for that crime, it has been deemed expedient expressly to enact it in the later statutes of treason. It is nothing more than a particular application of the well-known doctrine, that the proof must correspond with the allegations, and be confined to the point in issue. The issue in treason is, whether the prisoner committed that crime by doing one or more of the treasonable acts stated in the indictment; as in defamation the question is, whether the defendant injured the plaintiff by maliciously uttering any of the slanders laid in the declaration; and evidence of collateral facts is admitted or rejected on the like principle, in either case, according as it does or does not tend to establish the specific charge. Therefore the declarations of the prisoner, and seditious language used by him, are admissible in evidence as explanatory of his conduct, and of the nature and object of the conspiracy in which he was engaged. And in support of the overt act of treason in the county mentioned in the indictment, other acts of treason, though done in other counties, may be given in evidence; subject, however, to be ultimately rejected, if the overt act, in corroboration of which they are tendered, is not proved to have been done in the county as laid."
1 R. v. Deacon, Foster, Cr. L. 9; 18 How. St. Tr. 366, S. C.; R. v. Wedderburn, Foster, Cr. L. 22; 18 How. St. Tr. 425, S. C.
R. v. Vaughan, 15 How. St. Tr. 499, 500; Foster, Cr. L. 246, S. C. 3 Gr. Ev., § 256, in part. Ante, §§ 173, 239.
R. v. Watson, 2 Stark. R. 132-135.
R. v. Layer, 16 How. St. Tr. 164; R. v. Deacon, 18 id. 367; Foster,
§875. It remains to be noticed in connexion with this subject, that the protective provisions of the Statutes of Treason' do not apply to the particular class of treasons, which consists in compassing or imagining the death or destruction, or any bodily harm tending to the death or destruction, maiming or wounding, of the Queen, where the overt act or acts alleged shall be the assassination of Her Majesty, or any attempt to injure in any manner whatsoever her Royal person; or to the misprisions of any such treason; but in all these cases the accused shall be indicted, arraigned, tried and attainted, in the same manner, and according to the same course and order of trial, and upon the like evidence, as if he stood charged with murder; though upon conviction, judgment shall be given, and execution done, as in other cases of high treason.'
§ 876. It seems to have been formerly thought, that, in proof of the crime of perjury, two witnesses were necessary; but this strictness, if it was ever the law, has long since been relaxed; the true principle of the rule being merely this, that the evidence must be something more than sufficient to counterbalance the oath of the prisoner, and the legal presumption of his innocence." The oath of the opposing witness, therefore, will not avail, unless it be corroborated by material and independent circumstances; for otherwise, there would be nothing more than the oath of one man against another, and the scale of evidence being thus in one sense balanced, it is considered that the jury could not safely convict. So far the rule is founded on substantial justice.' But
Cr. L. 9, 10, S. C.; R. v. Vane, 6 How. St. Tr. 123-129; 1 East, P. C. 125, 126.
17 Ann., c. 21; 7 Will. 3, c. 3; 6 Geo. 3, c. 53, § 3.
39 & 40 Geo. 3, c. 93; 1 & 2 Geo. 4, c. 24, § 2, Ir.; 5 & 6 Vict., c. 51, § 1. Sect. 2 of this last Act makes it a high misdemeanor to discharge or aim fire-arms, or throw or use any offensive matter or weapon, with intent to injure or alarm Her Majesty.
Gr. Ev. § 257, in part.
This is said to have been the opinion of Lord Tenterden ; 3 St. Ev. 860, n. q; R. v. Champney, 2 Lew. C. C. 259, per Coleridge, J.
See R. v. Lee, cited 2 Russ. C. & M. 650.
6 4 Bl. Com. 358; R. v. Gaynor, 1 Cr. & Dix, Ir. Cir. R. 142; Jebb, C. C. 262, S. C.
R. v. Yates, C. & Marsh. 139, per Coleridge, J.
it is not precisely accurate to say, that the corroborative circumstances must be tantamount to another witness; for they need not be such as that proof of them, standing alone, would justify a conviction, in a case where the testimony of a single witness would suffice for that purpose.' Thus, a letter written by the defendant, contradicting his statement on oath, will render it unnecessary to call a second witness. Still, evidence confirmatory of the single accusing witness in some slight particulars only, will not be sufficient to warrant a conviction; but it must at least be strongly corroborative of his testimony; or, to use the quaint but energetic language of Chief Justice Parker, "a strong and clear evidence, and more numerous than the evidence given for the defendant.""
§ 877. When several assignments of perjury are included in the same indictment, it does not seem to be clearly settled, whether, in addition to the testimony of a single witness, corroborative proof must be given with respect to each; but the better opinion is that such proof is necessary; and that too, although all the perjuries assigned were committed at one time and place.' For instance, if a person, on putting in his schedule in the Insolvent Debtors' Court, or on other the like occasion, has sworn that he has paid certain creditors, and is then indicted for perjury on several assignments, each specifying a particular creditor who has not been paid, a single witness with respect to each debt will not, it seems, suffice, though it may be very difficult to obtain any fuller evidence."
R. v. Gardiner, 8 C. & P. 737, per Patteson, J.; 2 Moo. C. C. 95, S. C. 2 R. v. Mayhew, 6 C. & P. 315, per Lord Denman.
3 R. v. Yates, C. & Marsh. 139, per Coleridge, J.; R. v. Boulter, 2 Den. 396; 3 C. & Kir. 236, S. C.
R. v. Champney, and R. v. Wigley, 2 Lew. C. C. 258, 259, n., per Coleridge, J.; Jorden v. Money, 5 H. of L. Cas. 231, 232, per Lord Brougham; Woodbeck v. Keller, 6 Cowen, 118, 121, per Sutherland, J. See the State v. Molier, 1 Dev. 263, 265; The State v. Hayward, 1 Nott & M'Cord, 547; Clark's Exors. v. Van Reimsdyk, 9 Cranch, 160. Gr. Ev., § 257 a, nearly verbatim.
R. v. Muscot, 10 Mod. 194.
7 R. v. Virrier, 12 A. & E. 324, per Lord Denman.
8 R. v. Parker, C. & Marsh. 639, 645-647, per Tindal, C. J. In R. v. Mudie, 1 M. & Rob. 128, 129, Lord Tenterden, under similar circumstances, refused to
§ 878. The principle, that one witness, with corroborating circumstances, is sufficient to establish the charge of perjury, leads to the conclusion, that without any witness directly to disprove what is sworn, circumstances alone, when they exist in a documentary shape, may combine to the same effect; as they may combine, though altogether unaided by oral proof, except the evidence of their authenticity, to prove any other fact connected with the declarations of persons or the business of life. accordance with these views, it has been held in America, that a man may be convicted of perjury on documentary and circumstantial evidence alone,-first, where the falsehood of the matter sworn to by him is directly proved by written evidence springing from himself, with circumstances showing the corrupt intent; secondly, where the matter sworn to is contradicted by a public record, proved to have been well known to the prisoner when he took the oath; and thirdly, where the party is charged with taking an oath, contrary to what he must necessarily have known to be true; the falsehood being shown by his own letters relating to the fact sworn to, or by any other writings, which are found in his possession, and which have been treated by him as containing the evidence of the fact recited in them."
§ 879. If the evidence adduced in proof of the crime of perjury consists of two opposing statements by the prisoner, and nothing more, he cannot be convicted. For if one only was delivered under oath, it must be presumed, from the solemnity of the sanction, that the declaration was the truth, and the other an
stop the case, saying that if the defendant was convicted he might move for a new trial. He was however acquitted. Gr. Ev., § 258, in part. In this case, under the
U. S. v. Wood, 14 Peters, 430, 440-442. latter head of the rule here stated, it was held that, if the jury were satisfied of the corrupt intent, the prisoner might well be convicted of perjury in taking, at the custom-house in New York, the "owner's oath in cases where goods, wares, or merchandise, have been actually purchased," upon the evidence of the invoice-book of his father, John Wood of Saddleworth, Eng., and of thirty-five letters from the prisoner to his father, disclosing a combination between them to defraud the Government of the United States, by invoicing and entering the goods shipped at less than their actual cost. The whole of this case deserves an attentive perusal.
3 Gr. Ev., § 259, in great part.
error, or a falsehood; though the latter, being inconsistent with what he has sworn, may form important evidence, with other circumstances, against him.' And if both the contradictory statements were delivered under oath, there is still nothing to show which of them is false, when no other evidence of the falsity is given. If, indeed, it can be shown that, before making the statement on which perjury is assigned, the accused had been tampered with, or if any other circumstances tend to prove that the statement offered as evidence against the prisoner was true, a legal conviction may be obtained; and provided the nature of the statements was such, that one of them must have been false to the prisoner's knowledge, slight corroborative evidence would probably be deemed sufficient. But it does not necessarily follow that, because a man has given contradictory accounts of a transaction on two occasions, he has therefore committed perjury. For cases may well be conceived in which a person might very honestly swear to a particular fact, from the best of his recollection and belief, and might afterwards from other circumstances be convinced that he was wrong, and swear to the reverse, without meaning to swear falsely either time.
Moreover, when a man
1 See Alison's Prin. of Crim. Law of Scot. 481.
2 R. v. Wheatland, 8 C. & P. 238, 241, per Gurney, B.; R. v. Gaynor, 1 Cr. & Dix, Ir. Cir. R. 142; Jebb, C. C. 262, S. C.; R. v. Harris, 5 B. & A. 926.
Anon., per Yates, J., Lord Mansfield, Wilmot, and Aston, Js., concurring; 5 B. & A. 939, 940, n. See the observations of Mr. Greaves on this case, in 2 Russ. C. & M. 653, n.
Per Holroyd, J., in R. v. Jackson, 1 Lew. C. C. 270. This very reasonable doctrine is in perfect accordance with the rule of the Criminal Law of Scotland, as laid down by Mr. Alison, in his excellent treatise on that subject, in the following terms :-" When contradictory and inconsistent oaths have been emitted, the mere contradiction is not decisive evidence of the existence of perjury in one or other of them; but the prosecutor must establish which was the true one, and libel on the other as containing the falsehood. Where depositions contradictory to each other have been emitted by the same person on the same matter, it may with certainty be concluded, that one or other of them is false. But it is not relevant to infer perjury in so loose a manner; but the prosecutor must go a step further, and specify distinctly which of the two contains the falsehood, and peril his case upon the means he possesses of proving perjury in that deposition. To admit the