156 Mich. 594 | Mich. | 1909
The respondent was convicted under an information for perjury which charged that on the trial of a certain divorce case in the circuit court in chancery of "Wayne county, in which respondent was complainant and Elizabeth Vogt defendant, it became and was—
*595 “A material question whether the said complainant, G. Edward Vogt, was for the two years preceding the filing of his said bill of complaint a resident of the city of Detroit, county of Wayne, and State of Michigan. That the said G. Edward Vogt, being so sworn as aforesaid, contriving and intending to prevent the due course of law and justice, then and there, on the trial of said issue, upon his oath as aforesaid, falsely, corruptly, knowingly, wilfully, and maliciously, before the said Honorable Joseph Donovan, circuit judge of the aforesaid, did depose and swear, among other things, in substance and to the effect following, in reply to the question, ‘ Where do you (meaning the said G. Edward Vogt) live?’ the following, ‘In Detroit,’ and in reply to the question, ‘For how long ?’ (meaning in Detroit) did reply the following, ‘About two years and a couple of months.’ Whereas, in truth and in fact the said G. Edward Vogt did not reside in the city of Detroit, county of Wayne, and State of Michigan, preceding the time of the filing of the said bill of complaint, two years and a couple of months, nor two years.”
The question is whether this information stated an offense. The information contains no averment as to the date of the filing of the bill of complaint in the chancery case. The only averment as to what constituted the material question is that it was material as to whether the complainant was a resident for two years preceding the-filing of his bill of complaint. The testimony he is charged with having given related to a period of two years prior to the giving of such testimony. The truth of this testimony is not negatived; the only averment in that regard being that in truth and in fact the said G. Edward Vogt was not a resident of the State of Michigan for two years preceding the time of the filing of his bill of complaint. It is clear, therefore, that there is no specific charge of the materiality of the testimony which he in fact gave, nor is there a direct averment of its falsity. Except where the materiality of it sufficiently appears from the oath itself, the materiality of that part of the oath in which perjury is assigned should be averred.
Where the information fails to aver facts constituting an offense, it is not subject to amendment. Byrnes v. People, 37 Mich. 515; People v. Gaige, 26 Mich. 30.
The conviction is set aside, and the prisoner discharged.