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or liability. The word 'fact' includes the fact that the witness holds any opinion or belief. The word 'material' means of such a nature as to affect in any way, directly or indirectly, the probability of anything to be determined by the proceeding, or the credit of any witness, and a fact may be material, although evidence of its existence was improperly admitted." Stephen, Dig. Crim. L. art. 135.

$500. Two Witnesses Required to Prove.-The Texas Criminal Code, art. 746, accurately states the modern rule which evidently clings to the views of the old text-writers as modified, and holds that if the perjury is not confessed in open court the falsity of the statement assigned for perjury must be proved by the positive, direct testimony of two witnesses, or by the direct, positive testimony of one witness corroborated strongly by other evidence (evidently circumstantial).

Now there may be evidence technically circumstantial which would be amply sufficient to establish perjury. Let us illustrate: B is on trial for the murder of A. C swears that he was at a certain time at a certain place in Travis county, Texas; that B and A were present at that time and place, and that no other person was present; that he saw B shoot and kill A, giving the circumstances. B is convicted and executed. Subsequent facts lead to the conclusion that C perjured himself, and he is indicted for that offense. Upon the trial it is evident that the prosecution cannot adduce direct evidence against C, but by one or more witnesses it can be shown that he was, at the time of the homicide, and on the day of the homicide specified by him, in the city of New York. Technically speaking, this would be circumstantial evidence, but of such character as to be virtually positive or direct evidence. There would be no room for inferences or presumptions, for, if the jury believed the witness, guilt would result without any process of reasoning or presumptions. Maines v. State, 26 Tex. App. 14.

§ 501. One Witness Insufficient.-The direct evidence of one witness, who is entitled to full credit, is sufficient for proof of any fact, except perjury and treason. In Com. v. Butland, 119 Mass. 317, Mr. Justice Morton, as the organ of the court, said: "It is not necessary that there should be two living witnesses in contradiction of the statement of the defendant to justify a conviction of perjury. It is sufficient if, in addition to one directly

opposing witness, corroborating circumstances sufficient to turn the scale and overcome the oath of the defendant and the legal presumption of his innocence are proved. Com. v. Parker, 2 Cush. 212. And where the defendant's statement is contradicted by a witness, who is supported by corroborating circumstances, the evidence must ordinarily be submitted, under proper instructions, to the jury, whose province it is to judge of the weight of such corroborating circumstances." See also 1 Greenl. Ev. (13th ed.) 257, and cases cited; United States v. Wood, 39 U. S. 14 Pet. 430, 10 L. ed. 527.

§ 502. Proof Required that Defendant was on Oath.-In an indictment for perjury it must be directly stated in some form of apt words that the defendant was sworn. It is not sufficient that it so appears by inference or argument. 1 Whart. Am. Crim. L. § 1287; 2 Bishop, Crim. Proc. § 912; State v. Divoll, 44 N. H. 142. The indictment in this case only alleges that the defendant did "depose and swear." All that is subsequently said about "said oath,” and the taking and administering of the same, refers to the allegation "did depose and swear," and adds nothing to its signification or effect. The case in this respect is nearly on all fours with that of United States v. Hearing, 11 Sawy. 521. In that case the defendant was indicted for perjury in making a homestead affidavit, which was set out in the indictment. This was followed by an allegation that the defendant did, before a person authorized to administer "said oath," depose and state contrary to his said oath. In sustaining a demurrer to the indictment, the court said that after setting out the affidavit there should have been an allegation "that the defendant, being then and there duly sworn by the clerk," etc., "did depose and state that such affidavit was true;" and that the allegation that the defendant did depose and state contrary to his said oath is, if anything, an attempt to assign perjury on a "said" or supposed oath, the administration of which is nowhere alleged. But the fact that the defendant was sworn must be distinctly stated. It is not sufficient that it appears by implication. United States v. McConaughy, 33 Fed. Rep. 168.

"A person who swears or affirms that he will truly testify, declare, depose, or certify, or that any testimony, declaration, deposition, certificate, affidavit or other writing by him subscribed, is true, in an action, or a special proceeding, or upon any hearing, or inquiry, or on any occasion in which an oath is required

by law, or is necessary for the prosecution or defense of a private right, or for the ends of public justice, or may lawfully be administered, or who in such action or proceeding, or on such hearing, inquiry or other occasion, willfully and knowingly testifies, declares, deposes, or certifies falsely, in any material matter, or states in his testimony, declaration, deposition, affidavit or certificate, any material matter to be true which he knows to be false, is guilty of perjury." N. Y. Penal Code, § 96.

The taking of a willful 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. Com. v. Smith, 11 Allen, 253.

§ 503. Impeaching Evidence always Competent.-Judge Andrews in a recent case has said: "Evidence going to the credit of a witness who has given material evidence is relevant, because it helps the jury in determining the main issue. The recent cases sustain the view that perjury may be assigned by false testimony going to the credit of a witness. Reg. v. Glover, 9 Cox, C. C. 501; Reg. v. Lavey, 3 Car. & K. 26; Archb. Crim. Pr. & Pl. 817. False swearing in respect to such matter is not distinguishable in respect to moral turpitude from false swearing upon the merits; and, we think, there is no just reason for refusing to treat false swearing as perjury whenever the testimony is relevant to the case, although it may not directly bear upon the issue to be found." People v. Courtney, 94 N. Y. 490.

§ 504. Testimony of an Accomplice Received with Suspicion. It is important to remember that all courts receive the testimony of an accomplice with suspicion. The evident infirmities of testimony given by a consort in crime, very properly impress it with elements of extreme disfavor. Where then, as has frequently happened, subsequent developments show that a conviction was secured upon perjured testimony it becomes the duty of the court, if no action be taken by the executive, to take such steps as shall bring to his attention the facts which may reasonably lead to the exercise of clemency, the presiding judge, who in the exercise of his legitimate functions has passed sentence upon a fellow citizen, under the influence of perjured testimony, should cause such steps to be taken upon the discovery of the character of the evidence upon which such conviction was based, as will lead to pardon.

These views are fully sustained by a recent decision of the supreme court of Colorado. Klink v. People, 16 Colo. 467.

§ 505. Authorities Considered.-Upon a trial for perjury, the materiality of testimony alleged to be false is a question of fact for the jury, under proper instructions by the court. 2 Bishop, Crim. Proc. § 935. An indictment for perjury must show on its face that the oath assigned as perjury was willful and false, and that the alleged false statement was material to the issue, or it cannot be sustained. Knobloch, Crim. Dig. 345; State v. Gibson, 26 La. Ann. 71.

Perjury may consist not only in false and corrupt testimony on the main fact, but also in such testimony on the material circumstances tending to prove the issue. Desty, Am. Crim. L. § 75; 3 Greenl. Ev. (14th ed.) § 195.

The old rule that to convict of perjury two witnesses were necessary, has been relaxed; and a conviction may be had upon any legal evidence of a nature and amount sufficient to outweigh that upon which perjury is assigned. 1 Greenl. Ev. §§ 257-260; United States v. Wood, 39 U. S. 14 Pet. 430, 10 L. ed. 527; State v. Herd, 57 Mo. 252, 1 Am. Crim. Rep. 502; Williams v. Com. 91 Pa. 501.

In Reg. v. Parker, A, having stated on an affidavit that he had paid all the debts proved under his bankruptcy except two; on an indictment for perjury on this affidavit, one of the assignments was that A had not paid all the debts proven except two; and another that certain other creditors were not paid in full. In support of this affidavit several creditors were called, who each proved the non-payment of his own debt. And it was determined that this was not sufficient to warrant conviction; that, as to the non-payment of each debt, it was necessary to have the testimony of two witnesses, or of one witness and some circumstances to supply the place of a second witness. 1 Car. & M. 639. In Williams v. Com. supra, the court, in deference to 1 Greenl. Ev. § 257, and Reg. v. Parker, supra, says: "The explanation ought to have been that the commonwealth is required to prove by two witnesses, or one witness and corroborative evidence, at least one corrupt payment, contribution or promise which the defendant is charged with having made or paid; and, though each of several such acts be proved by a single witness, if none be proved by two witnesses, or by one witness and corroborative proof of circumstances, there could not be a conviction."

"The preponderance of contradictory proof must go to some one particular false statement. It will not be sufficient to prove by some inadequate line of testimony that one statement made by the defendant is false, and then by another inadequate line of testimony that another statement made by him is false." Whart. Crim. Ev. § 387.

These cases sufficiently explain what is meant, when it is said that where there are several assignments of perjury, there must be, in addition to one witness, corroborative evidence as to each. Proof of any sufficient assignment will sustain a count containing several assignments of perjury. 2 Bishop, Crim. Proc. § 934; Com. v. Johns, 6 Gray, 274; Harris v. People, 64 N. Y. 148; State v. Hascall, 6 N. H. 352.

"Where a witness has given testimony material to the issue, and in answer to a question as to whether he had not previously made a statement different from the testimony then given, he denies having done so, the answer affects his credibility as a witness, and a charge of perjury may be founded upon it." People v. Barry, 63 Cal. 62, and cases cited. "It is not necessary that the false statements should tend directly to prove the issue in order to sustain an indictment. If the matter falsely sworn to is circumstantially material or tends to support and give credit to the witness in respect to the main fact, it is perjury. And it is equally perjury if the false testimony tends to discredit the witness." 2 Bishop, Crim. Proc. § 934; Wood v. People, 59 N. Y. 123; Marvin v. State, 53 Ark. 395.

It must appear either from the facts set forth in an indictment for perjury that the matter sworn to and upon which the perjury is assigned was material or it must be expressly averred, that it was material, and the materiality must be proved on the trial or there can be no conviction. A false oath upon an immaterial matter will not support a conviction of perjury. Roscoe, Crim. Ev. 758; 2 Russell, Crimes, 639.

The whole law in reference to perjury is based upon the idea that when there is witness against witness, oath against oath, there must be other evidence to satisfy the mind. Schwartz v. Com. 27 Gratt. 1025, 21 Am. Rep. 365.

Two early English cases are sometimes cited as holding that the perjury may be established by proof of the contradictory oath merely, without other evidence. One of these is an anonymous

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