25 Mich. 492 | Mich. | 1872
In this case the defendant is informed against, for that, “on the 19th day of April, 1870, at the court house in the city of Coldwater, in said county, before the Honorable Charles Upson, then being circuit judge of the fifteenth judicial district of this state, a certain issue before then duly joined in the said court, between Romina Reed and Charles Reed, by Harriet M. Reed, their next friend, and Mathew M. Eox and Ephraim J. Paddock, in a certain plea of assumpsit, wherein the said Romina Reed and Charles Reed, by their next friend, were plaintiffs, and the said Mathew M. Eox and Ephraim J. Paddock were defendants, was then and there pending and untried, and then and there before the court as aforesaid, at the time aforesaid, the said defendants, Mathew M. Eox and Ephraim J. Paddock, by their attorney, Charles B. Pratt, moved the court to amend the plea before that time in said cause filed, and upon the hearing of said motion it became and was a material question, whether the said Ephraim J. Paddock signed or subscribed his name to a certain promissory note described in plaintiff’s declaration in said cause filed,
“‘STATE OF MICHIGAN.
“‘The Circuit Court roe the County or Branch.
■“ ‘ Mathew M. Fox and Ephraim J. Paddock, ads.
“‘Romina Reed and Charles Reed, by Harriet Reed, their next friend.
“‘Branch County, ss.
“‘Mathew M. Fox, one of the above-named defendants, being duly sworn, deposeth and says: That he gave the note set forth in the plaintiff’s declaration in this suit, and signed the same with his own signature; that said note was not signed by Ephraim J. Paddock, the other defendant, to his knowledge; that he, deponent, paid interest on said note yearly since the same was given, and at each time when he so paid the interest, he saw said note, and said Paddock’s name was not upon said note at .any time
“‘Deponent further says, that said note was given by .deponent for money loaned by him, and that said Paddock had no interest in the same, and deponent never asked said Paddock to sign the same, and was not signed by him, said Paddock, to deponent’s knowledge.
“‘(Signed) M. M. Fox.
“ Subscribed and sworn to before me this 19th day of April, 1870.
‘“(Signed) E. G. Parsons.’
“ Whereas in truth and in fact the said Ephraim J. Paddock did sign the note hereinbefore described, and mentioned in the affidavit of the said Mathew M. Fox, and the signature of the said Ephraim J. Paddock was on the same when the interest was paid on the ‘ same by the said Fox at each and every time the interest was so paid, and whereas in truth and in fact the said Fox had knowledge, and did well know, that said Ephraim J. Paddock signed the said note on or about the time thfe same was made and dated, and a long time previous to the time when said Fox made the first payment of interest thereon; and further, that the first time the said Fox had any knowledge that said Paddock’s name was on said note, was not on said twenty-eighth day of February, 1870, but a long time previous to that time, to wit: on or about the thirtieth day of June, 1866;” thus committing willful and corrupt perjury. Upon this information he was convicted, and the case is now before us on exceptions.
The first point under the exceptions is, that the information does not show that the affidavit was made to be used in any judicial proceeding, or that it actually was used in any judicial proceeding, and, consequently, fails to
Now, the circumstance that the motion was pending when the affidavit was made, does not establish the fact that it was made to be used on the motion. It might have been made for any other purpose, or for no purpose at all, and the coincidence of time be merely accidental. Neither does the fact that what was sworn to was material on the motion, have any necessary bearing, for, the same facts might be important to several motions, and there is no averment here, that Fox personally even knew of the pendency of this particular motion, which may have been, and would seem, in fact, to have been, on behalf of the other defendant exclusively, and to enable him to disprove his execution of the note. Nor does the entitling of the affidavit help the case, for, at most, it would only indicate that it was made for use in the cause for some purpose; but, possibly, for the purpose for which it was made, the facts sworn to may have had no materiality whatever.
Perjury is committed “when a lawful oath is ministered by any that hath authority, to any person in any judicial proceeding, who sweareth absolutely and falsely in any matter material to the issue or cause in question.” — 8 Inst.-, I64.J I Bl. Com., 187. There must be an oath author
Had the information alleged that the affidavit was used on the hearing of the motion, a different case would have been presented, which might require. consideration; but that was neither alleged, nor consequently could be proved. In fact, the record shows that it was not filed until the day after the motion was heard; but this, under this information, was immaterial.
The other questions become immaterial. The exceptions are sustained, and it must be certified to the circuit court, as the opinion of this court, that the judgment should be arrested.