Commonwealth v. Johns

72 Mass. 274 | Mass. | 1856

Metcalf, J.

When any one distinct assignment of perjury, in an indictment for that offence, is well made, and the defendant is found guilty, he must be sentenced on his conviction, however defective the other assignments may be. This is the settled law. Regina v. Rhodes, 2 Ld. Raym. 887. State v. Hascall, 6 N. H. 358. De Bernie v. State, 19 Alab. 23. If therefore we find the last assignment, in this ease, to be sufficient, we shall not need to decide upon the sufficiency of either of the other assignments.

The indictment alleges that, upon the trial before the justice, “ it became and was a material question whether certain gravestones, purchased by said Baldwin of said Johns, were sold by said Johns to said Baldwin in part payment for the purchase money paid for the cow bought of said Joiner or in part payment for a previous indebtedness of said Johns to said Baldwin for another cow.” The indictment then alleges that the defendant, on said trial, swore thus: “ I sold Benjamin Baldwin the gravestones to apply in part payment of the purchase money I had of him to buy the Joiner cow with.” And the assignment of the perjury, on this point, is thus: “ The said Johns did not sell said Benjamin Baldwin said gravestones to apply in part payment of the purchase money had by said Johns of said Baldwin to buy said Joiner cow with.” This, we think, is a good assignment of peijury committed by the defendant, on the trial of a question alleged in the indictment to have been material. In legal, as well as in grammatical construction of the indictment, that question is not, as contended for the defendant, whether the gravestones were sold in part payment of one of the two debts specified, or of neither; but the alternative is, whether they were sold in part payment of the one, or in part payment of the other. The averment, that the defendant falsely swore that they were sold in part payment of the first, is therefore sufficient.

It is not a valid objection to this indictment, that it embraces, in a single count, all the particulars in which the defendant is alleged to have sworn falsely. See 4 Wentw. 273, 274; 2 Chit Crim. Law, 353; State v. Bishop, 1 Chip. 120.

But it is objected that the indictment is bad, because it does not allege that more than one question became material—it being alleged that “it became and was a material question, whether a certain cow was bought ” &c.; “ whether certain gravestones ” &c.; “ whether said Johns, when he drove the cow,” &c.— whereas it ought to have been alleged that certain questions became material, to wit, whether a certain cow was bought &c.; and also whether certain gravestones, &c.; and also whethez said Johns, when he drove the cow, &c. Upon examining the precedents, we find no uniformity in this matter. The usual form, when more than one question is relied on as material, is to aver that certain questions became and were material, to wit, whether, &c., and whether, &c., or and also whether, &c. But this form is nowhere said to be essential; and the precedents show that an indictment is deemed sufficient, if it clearly avers that several matters were material on the trial in which the defendant testified, and that he committed perjury in his testimony concerning them or any of them. In 4 Wentw. 240, the form is, that “ it became a necessary question whether,” &c., “ and also whether,” &c., and whether,” &c. The same form was used in Rex v. Leefe, 2 Campb. 134, and in Regina v. Dunn, 1 Car. & Kirw. 732, note. In the former case, the indictment alleged that the defendant “ deposed touching the said material questions; ” and his eminent counsel took no exception to the indictment. He was acquitted on other grounds. But in Regina v. Dunn the defendant was convicted and sentenced. This point came before the court of queen’s bench, on a writ of error, in 1840, but was not decided ; the judgment being reversed on other grounds. Coleridge, J. said, however, (what we also say,) this is a mode of stating the material questions, which is not to be recommended.” Regina v. Burraston, 4 Jurist, 697, 698, and cited in 2 Russ. on Crimes, (7th Amer. ed.) 641, 642.

Now if, when the averment is that “ a question ” became material, several questions may be well set forth, by using the copulative conjunction, why may this be done ? Because, on the face of the indictment, it is manifest to every reader who is at all acquainted with the laws of our language, and is certain to a legal intent, that more than one question is alleged to have become material, and that the word “ question ” is to be applied, distributively, to each of the several questions. And we deem the same equally manifest, on the face of this indictment, without any connective particle between the questions.

Exceptions overruled.