False swearing, under a variety of circumstances, has been declared by numerous statutes to amount to perjury, and to be punishable as such. But at common law false swearing was very different from perjury. The offence of perjury, at the common law, is of a very peculiar description, say the Cr. L. Comrs., 5th Rep. 23, and differs in some of its essential qualities from the crime of false testimony, or false swearing, as defined in all the modern Codes of Europe. The definition of the word, too, in its popular acceptation, by no means denotes its legal signification. Perjury, by the common law, is the assertion of a falsehood upon oath in a judicial proceeding, respecting some fact material to the point to be decided in such proceeding; and the characteristic of the offence is not the violation of the religious obligation of an oath, but the injury done to the administration of public justice by false testimony. Here, in Canada, the above section declares to be perjury all oaths, etc., taken or subscribed in virtue of any law, or required or authorized by any such law, as did the repealed statute; and voluntary and extra-judicial oaths, being prohibited, it may be said that, with us, every false oath, knowingly, wilfully and corruptly taken, amounts to perjury and is punishable as such. The interpretation Act, c. 1, Rev. Stat., enacts that the word oath includes a solemn affirmation whenever the context applies to any person and case by whom and in which a solemn affirmation may be made instead of an oath, and in like cases the word sworn includes the word affirmed or declared. See ss. 23, 24, Can. Ev. Act, 1893. The words "or whether such evidence is material or not" in the above section 145 are an important alteration of the law on perjury, as it stands in England. As stated before, by the common law, to constitute perjury, the false swearing must be, besides the other requisites, in a matter material to the point in question. By the above section this ingredient of perjury is not necessary; see Stephen's Digest of Criminal Law, xxxiii. : : 1st. There must be a lawful oath.-R. v. Gibson, 7 R. L. 573; R. v. Martin, 21 L. C. J., 156; R. v. Lloyd, 16 Cox, 235; 19 Q. B. D. 213. And, therefore, it must be taken before a competent jurisdiction, or before an officer who had legal jurisdiction to administer the particular oath in question. And though it is sufficient prima facie to show the ostensible capacity in which the judge or officer acted when the oath was taken, the presumption may be rebutted by other evidence, and the defendant, if he succeed, will be entitled to an acquittal: 2 Chit. 304; R. v. Roberts, 14 Cox, 101; R. v. Hughes, 14 Cox, 284. The words in italics in the above section 145 have altered the law to a large extent as to this requisite of an oath impugned for perjury; see a collection of cases in R. v. Hughes, Warb. Lead. Cas. 60. 2nd. The oath must be false-By this, it is intended that the party must believe that what he is swearing is fictitious; for, it is said, that if, intending to deceive, he asserts of his own knowledge that which may happen to be true, without any knowledge of the fact, he is equally criminal, and the accidental truth of his evidence will not excuse him: 2 Chit. 303. Bishop's first book of the law, 117. How far this is the law under the above section remains to be settled by the jurisprudence. And a man may be indicted for perjury, in swearing that he believes a fact to be true which he must know to be false: R. v. Pedley, 1 Leach, 325. 3rd. The false oath must be knowingly, wilfully, and corruptly taken. The oath must be taken and the falsehood asserted with deliberation and a consciousness of the nature of the statement made, for if it seems rather to have been occasioned by inadvertency or surprise, or a mistake in the import of the question, the party will not be subjected to those penalties which a corrupt motive alone can deserve: 2 Chit. 303. If an oath is false to the knowledge of the party giving it, it is, in law, wilful and corrupt: 2 Bishop, Cr. L. 1043, et seq. It hath been holden not to be material, upon an indictment of perjury at common law, whether the false oath were at all credited, or whether the party in whose prejudice it was intended were, in the event, any way aggrieved by it or not; insomuch as this is not a prosecution grounded on the damage of the party but on the abuse of public justice: 3 Burn's Just. 1227; and that would be so now under the above section. Indictment for Perjury: The Jurors for Our Lady the Queen present, that heretofore, to wit, at the (assizes) holden for the county (or district) of on the day of before (one of the judges of Our Lady the Queen), a certain issue between one E. F. and one J. H. in a certain action of covenant was tried, upon which trial A. B. appeared as a witness for and on behalf of the said E. F. and was then and there duly sworn before the said and did then and there, upon his oath aforesaid, falsely, wilfully and corruptly depose and swear in substance and to the effect following, "that he saw the said G. H. duly execute the deed on which the said action was brought," whereas, in truth, the said A. B. did not see the said G. H. execute the said deed, and the said deed was not executed by the said G. H., and the said A. B. did thereby commit wilful and corrupt perjury. See forms under s. 611, post. Perjury is now triable at quarter sessions, section 540. The indictment must allege that the defendants swore falsely, wilfully and corruptly; where the word feloniously was inserted instead of falsely, the indictment, though it alleged that the defendant swore wilfully, corruptly and maliciously, was held bad in substance, and not amendable : R. v. Oxley, 3 C. & Κ. 317. If the same person swears contrary at different times, it should be averred on which occasion he swore wilfully, falsely and corruptly: R. v. Harris, 5 B. & Ald. 926. As to assignments of perjury, the indictment must assign positively the manner in which the matter sworn to is false. A general averment that the defendant falsely swore, etc., etc., upon the whole matter is not sufficient; the indictment must proceed by special averment to negative that which is false: 3 Burn's Just. 1235; but see section 616, post. Proof. 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: section 684, post. 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 cannot safely convict. So far the rule is founded on substantial justice. But 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." 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 Bankruptcy Court, or on other 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. 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. In 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, when 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 letter 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. |