1 Mich. 137 | Mich. | 1848
By the court,
It is alleged, among other reasons, in arrest of judgment, that there is no sufficient averment of the materiality of the alleged false testimony or matter falsely sworn to by tbe defendant, to the question or matter which was the subject of inquiry before the justice.
The indictment alleges, in substance, that a complaint was made against one Allen Boyce, charging him with having stolen a hay horse and one mule, the property of one Benjamin L. Collier (the defendant); and that the matter came on to he' heard and determined, and that the defendant was in due form of law sworn as a witness. There is then inserted in the indictment the following averment: “ and then and there upon the hearing of the said complaint, it became and was material to ascertain the truth of the matter hereinafter alleged to have been sworn to and stated by the said Benjamin L. Collier, upon his oath.” This averment is inserted in both counts of the indictment, immediately preceding the statement of the matters alleged to have been falsely sworn to; and this is the only averment to be found in either count, in relation to the materiality of the evidence given by defendant to the matter pending and in question before the justice.
It is a well settled rule, that it must appear on the face of the indictment that the false allegation was material to the matter in question; for if it be of no importance, though false, it will not be perjury; for, as it does not concern the issue, it is extra-judicial in this respect. 2 Chilty’s Crim. L. 305. If it mutt he material, it must be averred to be so, or it must clearly appeal1 to be so from tbe statements alleged to be false.
In stating the question which is averred to be material, it is proper to mention the circumstances, which must afterwards he connected with
It is then stated in the indictment, that the defendant “did depose and give in evidence to the effect following, that is to say, that he, the said Benjamin L. Collier, did not, in conversation with one Charles Boyce, tell him, the said Charles Boyce, that bill of sale [referring to a bill of sale executed by the said Allen Boyce to the said Benjamin L. Collier, then and there produced, and proved and read in evidence, before the said John Ganow, as such justice of the peace, on the hearing of the matter of the said complaint, and which, amongst other things, purported to convey from the said Allen Boyce to the said Benjamin L. Collier the goods and chattels alleged to have been stolen in the said complaint], was intended as a collateral security for the payment of the amount the said Allen Boyce was indebted to him,” &c.
The subject matter of the bill of sale is introduced into the second count in the same way, and all the evidence of defendant is stated to have been in reference to it. There is no prefatory statement to which
It does not appear from the indictment, that the evidence was given by defendant on a cross-examination, and we cannot, in a casp ljke this, infer that it was: as all the facts necessary to show its materiality "must appear upon the face of the indictment.
The whole of the evidence given by the defendant relates to matters (so far as appears) collateral to the question before the cpurt> which was
The attorney general refers to the Revised Statute of 1838, page 639, and, as I understand him, insists that it changes the rule in relation to the materiality of the testimony to the matter in question before a court; but the statute does not make that perjury which is not material to the issue. The statute says, if any person, of whom an oath shall be required by law, shall wilfully swear falsely in regard to any matter or thing, respecting which such oath is authorized or required, he shall be guilty of perjury. This statute embraces cases which before were not embraced by law, but it does not in any way change the rules regulating the mode in which indictments for perjury are to be framed.
The result of our examination of this case is, that the averment referred to is not well made; that th'e innuendo stated above is improper, and not in conformity to the rules of pleading in such cases; and that, in the absence of the averment and the innuendo, the materiality of the testimony of defendant, upon which peijury is assigned, is in no wise apparent from any other portion of the indictment; and, therefore, that the indictment is bad, and will not sustain a conviction, and judgment must be arrested. We do not deem it necessary to notice the other objections.
Let it be certified to the circuit court of the county of Jackson, in which said case is now pending, that the law of the case is with the defendant upon the point submitted and noticed by this court.
. Certified accordingly.