106 F. 884 | 9th Cir. | 1901
after stating the case as above, delivered the opinion of the court.
Is the indictment fatally defective for the reason that it fails to allege directly that the accused, at the time of making his affidavit, had in fact other property than that which he deposed that he had? There can be no doubt that at common law it is absolutely necessary. to an indictment for perjury to include direct and specific allegations negativing the truth of the alleged false testimony, together
The indictment in the present case does not directly charge that, the accused had, at the time of making his affidavit, property other than that which was described in bis schedule. It alleges that he knew that his affidavit was not true, and that he knew that he was the owner of the sum of §55,000 in addition to what was mentioned in his schedule. This is not1 an allegation that the accused owned $5,000 above what was mentioned in his. schedule. It is contended that it is equivalent to such an allegation, because it may be reasoned that he had the money from the allegation that he knew he had it; or, in other words,'that he could not have known he had it unless he had it. The facts material to be charged in an indictment must be stated clearly and explicitly, and must not he left to intendment, or reached by way of inference or argument. The indictment in this instance states no ultimate fact in regard to the ownership of the $5,000, or even as to its existence. It states only a condition of the mind of the accused, knowledge that he is said to have possessed. This is not sufficient. Harrison v. State (Tex. Cr. App.) 53 S. W. 863; Com. v. Still, 83 Ky. 275; Com. v. Porter (Ky.) 32 S. W. 138; Com. v. Weingartner (Ky.) 27 S. W. 815. In the case last cited the indictment charged the defendant with falsely deposing that one to whom he had let a house had, without his knowledge or consent, sublet the same; and that he well knew that he had authorized and consented to the subletting of said house. It was held that this was not tantamount to charging that the accused swore that his tenant had sublet the house