46 Pa. Super. 416 | Pa. Super. Ct. | 1911
Opinion by
The appellant was tried and convicted in the court be
The evidence produced by the commonwealth conclusively established that the man Burke, who voted under the names of Miles, had not resided in the election district, that he had not resided at the house of Eliab Jones, and that no other man known as Thomas Miles had ever resided at that house. The testimony of the man James Burke, who had voted as Thomas Miles, was to the effect that he had before going to the polling place told this defendant that his name was James Burke and that he would vote “by the name of Thomas Miles,” and that this defendant thereupon said, “All right, Thomas Miles boarding with Eliab Jones.” The affidavit, if this appellant was sworn, was absolute, it did not purport to be made upon information and belief. The first specification of error complains of the action of the court in instructing the jury that it was proper for them to consider that the statement of the affidavit purported to be ma,de by the defendant on his own knowledge, not from information and belief, in passing upon the question whether or not the misstatement of fact, if there was a misstatement, was willful and corrupt. “There is corruption in undertaking to swear positively to a thing of which you have little knowledge, and which you may know if you will take the trouble to inquire; and where there is this kind of corruption, the law implies malice: ” Com. v. Cornish, 6 Binney, 249. The first specification of error is overruled.
The second specification of error complains that the court erred in presenting the strong features of the commonwealth’s case and in ignoring the theory of the defense on the question of what constitutes corrupt perjury under the statute. We have examined the charge as a whole and find in it nothing to sustain this complaint of the appellant. The learned judge of the court below fully and carefully instructed the jury as to all the elements necessary to constitute the offense. If the defendant de
The third specification of error complains of the submission to the jury of the question whether the defendant had been sworn to the affidavit, upon which the indictment was founded. The affidavit, which the defendant had signed, stated upon its face that he had been duly sworn; the jurat, certifying that the defendant had been sworn was signed by the judge of the election; Burke had testified that the defendant “swore in his (Burke’s) vote” and Nealon, who acted as one of the inspectors at the election, testified that the defendant had been sworn by Kerrigan who was acting as one of the clerks at the election. Nealon, the inspector, testified that the defendant was sworn by James Kerrigan, who was acting as the clerk of the witness (who was an inspector at the election), that after being so sworn this defendant signed the affidavit and then Brennan, the judge of election, signed the jurat. Brennan, the judge, of election, testified that when Miles or Burke came to vote, Kerrigan, the clerk, asked him what his name was and he said “ Thomas Miles ” and thereupon Kerrigan looked on the register book .and could not find his name, “so he said to me, Kerrigan said to me his name is not on the register. So I said to him, 'You know what to do with him then.’ So Kerrigan took the affidavit, the paper, and asked him what his name and he told him. Kerrigan asked him where did he live. He said ‘Eliab Jones, Prospect street.’ So he filled out the paper and asked him who was going to vouch for him. He said McCue. Kerrigan said, 'Will you vouch for him, McCue?’ McCue said, 'Yes, fill out the paper.’ Kerrigan did and passed it over to McCue. McCue signed his name to it and passed it over to me and I signed my name to it, and Lyall gave him a ballot and he voted.” Brennan, it is true, testified that no oath was administered to McCue, but this testimony was flatly contradicted by Nealon, the inspector, and by the jurat which Brennan had signed.
The judgment is affirmed and.it is ordered that the defendant appear in the court below at such time as he may be there called and that he be by that court committed until he has complied with that part of the sentence which had not been performed at the time this appeal was made a supersedeas.