Commonwealth v. Sargent

129 Mass. 115 | Mass. | 1880

Endicott, J.

1. The motion to quash was rightly overruled, The assignment of the falseness of the representation made by the defendant in his sworn statement before the commissioner, that he had personal estate in Cambridge of a value not less than fifteen hundred dollars, consisting of five horses, and divers carriages and harnesses, preceded by the words “ whereas in truth and in fact said Sargent did not,” &c., was a good assign ment of perjury, and the indictment could not be quashed on the ground that “no good and sufficient assignments are contained therein.” Whether the other assignments of the falseness of the defendant’s statements, in regard to the places where the horses were kept and the amount of his property, should have been each preceded by the formal words, “ whereas in truth and in fact,” it is unnecessary to consider. Commonwealth v. McLaughlin, 122 Mass. 449. Commonwealth v. Johns, 6 Gray, 274. The defendant at the trial contended there was no legal and sufficient assignment, and objected to any evidence in support of any assignment; but as there was a good assignment, evidence was properly admitted. And the defendant did not afterward ask to have the evidence confined to such assignment. See Wood v. People, 59 N. Y. 117.

2. In an indictment charging a defendant with making false statements in writing under oath, which are material, it can make no difference that the statements made were reduced to writing .and signed before or after the oath was administered. The offence consists in the false statement of material facts, without reference to the mode of statement, whether oral or written. Commonwealth v. Hatfield, 107 Mass. 227. Commonwealth v. Carel, 105 Mass. 582.

But the defendant contends that this indictment charges that the oath was administered before signing, and the evidence that it was administered afterwards was not admissible, on the ground that matters of description, though unnecessarily set forth, must be proved precisely as alleged.

We do not so read the indictment. It does not allege in terms that the defendant was first sworn, nor that he was sworn to make true answers to such questions as should be put to him, as in Smith v. People, 1 Parker C. C. 317, relied on by the defendant, but that he was required to make a written statement under oath of his circumstances and property. The fair meaning of this is, that he was to make a statement in writing to be signed and sworn to by him. The indictment then proceeds to charge, that he, “ being then and there duly sworn by said commissioner to the requirement aforesaid, did then and there in pursuance of said requirement make said statement, and did then and there, being so sworn as aforesaid, falsely, wilfully, knowingly and corruptly say, depose and swear in and by said written statement as follows: ” and the statement duly signed is set forth at length. The clause, “being then and there duly sworn to the requirement aforesaid,” means simply that he was duly sworn as required. The concluding clause is to be construed in connection with what precedes it, and, after alleging that he made the statement under oath, it alleges that he deposed and swore in and by said statement as follows, that is, that he made the written statement and made oath to it. The charge therefore is, that he made a sworn statement in writing as required, and such a statement could only be furnished after it was made, signed and sworn to.

3. The court was not bound, as matter of law, to rule at the close of the government’s case that there was no sufficient evidence to be submitted to the jury, for the reason that there were not two sufficient witnesses, or the equivalent thereof, to the falseness of the defendant’s statements. The bill of exceptions states, that John L. Howard, and other witnesses for the government, testified to their knowledge of and investigations in regard to the defendant’s residence and property. And the presiding judge stated, in his charge to the jury, that to convict the defendant the testimony of two witnesses, showing the falseness of the material statements, or of one witness and facts equivalent to the evidence of a second witness, was necessary.

4. It was not competent for the defendant to put in his own previous declarations, that he owned or -had an interest in the horses. He had already stated what his interest in the horses was, and he could not fortify his own testimony by such declarations. It does not appear that they were made in connection with any act, or were part of the res gestee, as in Commonwealth v. Rowe, 105 Mass. 590.

5. The bill of exceptions does not find that the defendant gave any testimony before the commissioner, bearing on the question of his property, except what appears in the written statement set out in the indictment. And the presiding judge was not required to give the second instruction requested, no facts appearing which rendered such an instruction necessary. Wells v. Prince, 15 Gray, 562.

6. The third ruling requested was in substance given, and we fail to find that the defendant has any ground of exception to the instructions upon which the case was submitted to the jury.

We have considered all the objections which the defendant presented in his argument before us, and, in the opinion of a majority of the court, the entry must be

Exceptions overruled.