53 Mass. 225 | Mass. | 1847
As to the first exception, it is contended that the words, which are alleged to have been spoken, must be proved by two witnesses, as well as the fact that they were false. In support of this position, it is argued that the crime of perjury is a single act, and that what the party testified to cannot be separated from the false swearing; and it being the design of the law, prescribing the testimony necessary to convict of perjury, to protect the accused against conviction upon the testimony of a single witness, the protection-fails, if the words alleged to be spoken may be proved upon such testimony. The reasoning is ingenious, but it is not only not supported by authority, but is contrary to the whole course of practice in the courts of the common law.
Admitting the truth of the position, that the crime of perjury is a single act, yet there is a great distinction as to the facts to which a man testifies and the wilful falsehood of the testimony respecting them. The speaking of the words, and the motive with which they are uttered, are independent facts; and the proof of the first has no necessary tendency to prove the last. The witness may have been misinformed; he may mistake in his recollection; he may be confused in his manner of relating ; and in either way may state that
To prove, by the testimony of one witness, what another person -has said or testified, is the constant and invariable practice ; and facts of every kind are established by the oath of one witness: and where it is otherwise, it is an exception to the general law of evidence; as in the case of treason and in the probate of wills, which are the subjects of statute pro visions; and so in perjury, where the law requires that the crime shall be proved by the oaths of two witnesses, or, as it has been held in more modern times, by the oath of one witness, and by other independent and corroborating evidence, which is deemed of equal weight with another witness.
To follow out the argument contended for, not only the words testified to, but every other preliminary fact, should be proved by more than one witness. But the authorities are clear, and there is no doubt of the correctness of the ruling on this point. Serjeant Hawkins states it as the law, that it seems to be agreed that two witnesses are required in proof of the crime of perjury, but the taking of the oath, and the facts deposed, may be ^proved by one witness only; and he is supported by modern works of authority. 2 Hawk, c. 46, $ 10. Roscoe Grim. Ev. (2d ed.) 770. 1 McNally on Ev. 37.
The second exception relates to the materiality of the evidence offered by the government; and as to this, the presiding judge instructed the jury, that if the evidence alleged in the indictment was admitted to go to the jury, in the trial of the zause in which the perjury was alleged to have been committed, the jury might infer that it was material; and that if they were satisfied that the evidence alleged to be false was allowed to be given in the case then on trial, that was sufficient for them to infer that it was material; but that the - degree of materiality was not material.
The crime of perjury is the taking of a wilful false oath, by one who, being lawfully required to depose the truth in
In the present case, (with the exception of the alleged interest of the party in the cause in which he was called-upon to testify, which, it is admitted, was a material fact,) the presiding judge ruled, that if the evidence was permitted to go to the jury on the former trial, the jury who tried this indictment might infer it was material. The learned judge did not hold that matter immaterial to the issue, though false, would sustain the charge of perjury; but that, evidence being admitted to go to the jury on the former trial, such admission was sufficient evidence of its materiality.
We are of opinion that the learned judge gave too much weight to the fact that the evidence was permitted to go to the jury, without other proof of its materiality. It often happens that testimony is admitted on the trial of-a cause, either without objection, from its want of importance, or because there is no apparent legal objection to it, or for purposes of convenience, or through inadvertence, in the haste of the trial, much of which is immaterial to the issue.
In the case at bar, the averments (with the exception of the allegation as to the interest of the party in the suit) do not appear, on the face of them, to be material, or to bear on the issue to be tried. It was not, we think, sufficient for the government to prove that the words alleged were sworn to
To adopt the ruling of the court would be changing the nature of the proof, in the substitution of the fact that the evidence was admitted to the jury, instead of proof of its materiality; so that it would be sufficient to set forth, in the indictment, that the evidence went to the jury, and then prove the fact; thus making its materiality to depend, not on its bearing upon the issue, but on its admission in evidence to the jury. In the present case, that the defendant swore that he was not interested in the suit may not have been proved to the satisfaction of the jury; but they may have been satisfied of the truth of the other allegations, and thus the defendant may have been convicted upon their belief of the falsity of the facts sworn to, and which, being immaterial and unimportant, the giving of them in evidence, although a violation of strict truth, in itself considered, did not constitute the crime of perjury, which consists not in falsehood alone, but in the material character of the falsehood upon the issue or fact to be established.
As to the degree of materiality, the ruling of the learned judge was correct. It is enough if it was circumstantially material, though not in itself sufficient to establish the issue. Rex v. Griepe, 1 Ld. Raym. 256, and 12 Mod. 139.
The verdict is set aside, and the case is to be remitted to the municipal court for a new trial.